(5) (Repealed)"
16 Questions involving the competency of appeals and the constitution of this Court in dealing with appeals from the Drug Court have arisen in two recent decisions of this Court. In R v El-Hamid [2000] NSWCCA 497 Dunford J construed s 5AF(1) of the Criminal Appeal Act 1912 in such a way as to allow a person convicted of a summary offence before the Drug Court to seek leave to appeal to this Court, constituted by a single Judge.
17 In R v Ohar [2004] NSWCCA 83 this Court held that appeals flowing from final sentences passed pursuant to s 12 of the Drug Court Act are, by s 5AF of the Criminal Appeal Act, to be heard by a single Judge of this Court. Accordingly, those matters which we described as being in Category 1 in the Crown submissions, are matters which should be determined by a single Judge.
18 We should add that as we have noted above one of the matters dealt with by his Honour in the Court below which fell within Category 1 was a summary offence. In R v Ohar James J, in delivering the principal judgement of this Court, effectively held that summary offences, if they are included within the sentencing order made pursuant to s 12 of the Drug Court Act, were appropriate matters to be heard by a Judge of this Court sitting alone. While for reasons we shall detail later this could lead to a somewhat curious result, we are of the view that this Court should follow the decision in Ohar. Accordingly, in our view those matters which we described as falling within Category 1 are matters which should be heard by a Judge alone. In other words Newman AJ shall determine those matters.
19 The matters which fall within Category 2 include one matter which would normally be charged on indictment and another which would normally be dealt with as a summary offence.
20 At to the matter which would normally be heard on indictment, namely, the offence of aggravated break, enter and steal, this Court in Ohar determined, in our view correctly, that any right of appeal to this Court was not an appeal pursuant to s 5AF of the Criminal Appeal Act but an application for leave to appeal pursuant to s 5(1)(c) of that Act. It follows that we are of the view that it is for a Court constituted by either two or three judges that that appeal should go. However, the offence of obtaining money by deception, being less or equal to the sum of $2,000 contrary to the provisions of s178BA of the Crimes Act, is not a matter which normally would come to this Court pursuant to s 5(1)(c). Indeed an attempt to appeal in the ordinary course of events from the Local Court to this Court under that section would be treated by this Court as being an incompetent appeal.
21 It is this consideration which led the Court in R v Ohar to determine that any matters of a summary nature which were contained in a sentencing order of the Drug Court not made pursuant to s12 of the Drug Court Act are incompetent appeals to this Court. In essence what the Court held was that any right of appeal from summary matters determined by the Drug Court were appeals governed by s 5A of the Justices Act 1902. In other words such appeals are appeals which should be determined by the District Court. It was this concept which troubled Dunford J in El-Hamid and indeed continued to trouble him in Ohar. We sympathise with Dunford J's concern that effectively an appeal from a District Court Judge to another District Court Judge was akin to "an appeal from Caesar to Caesar". Sympathising as we do with Dunford J's expressed concern in Ohar, we are of the view that the construction adopted by the Court in that case of ss 5AF and 5(1)(c) of the Criminal Appeal Act 1912 and the provisions of ss 8,12 and 24 of the Drug Court Act is a correct construction.
22 James J in his reasons in Ohar's case held that because appeals pursuant to s 5(1)(c) are confined to appeals by persons convicted on indictment and that appeals pursuant to s 5AF are confined to appeals from final sentences imposed by judges of the Drug Court, sentences imposed by the Drug Court which do not fall within ss 5(1)(c) or 5AF are not appeals which can be bought to this Court. As we have indicated above the Court held in Ohar that those matters should be determined by the District Court pursuant to s 5A of the Justices Act.
23 In this case it was submitted, on behalf of the applicant, that because the provisions of s 15(3) of the Drug Court Act 1998 exclude the application of s 58 of the Crimes Sentencing Procedure Act 1999 to sentences imposed by the Drug Court this provision gives the Drug Court a more extensive jurisdiction than the Local Court in that it can accumulate sentences outside a three year period. Accordingly it was put that it would be appropriate for those offences which may be described as summary offences to be heard by a single Judge of this Court pursuant to s 5AF of the Criminal Appeal Act.
24 However in our view this argument must fail. It fails because the summary offences which fall within categories 2 and 3 of the matters before this Court are not :- a) final sentences made pursuant to s 12 of the Drug Court Act and b) are not sentences passed on a person convicted on an indictment pursuant to s 5(1)(c). This Court, being a creature of statute, can only deal with those matters which fall within the powers given to it by its enabling statute. Here as the summary matters contained in categories 2 and 3 do not fall within appeals which this Court can entertain pursuant to s5(1)(c) and 5AF of the Criminal Appeal Act 1912, they are incompetent appeals to this Court. Accordingly we are of the view that the matter of obtaining money by deception contrary to the provisions of s 178BA of the Crimes Act 1900 in the second category of offences and all the matters contained in the third category of offences are not matters in which this Court can entertain an appeal. They should be brought in the District Court pursuant to s 5A of the Justices Act. This as we have stated above leads to a somewhat curious result. In the category 1 offences there was, as we have said, a matter which would normally be dealt with summarily. That was the offence of goods in custody contrary to s 527C(1c) of the Crimes Act 1900. On the face of it, it would seem that it should suffer the same fate as the summary matters contained in categories 2 and 3. However, as the matter was in fact the subject of the final sentence passed by his Honour below, it, unlike the summary matters contained in categories 2 and 3, falls within s12 of the Drug Court Act and thus within the purview of s 5AF of the Criminal Appeal Act 1912. Thus, we have the curious result where one summary matter may be the subject of an appeal to a single Judge pursuant to s 5AF because it is contained within an order made pursuant to s 12 of the Drug Court Act but other summary matters which do not fall within that section of the Drug Court Act can not be brought before this Court.
25 To summarise our findings. We find that all of the matters within category 1 are matters which may be heard and determined by a single judge of this Court pursuant to s 5AF. We find that the sentence imposed by Judge Milson in the offence within the second category, being a matter of aggravated break, enter and steal, contrary to the provisions of s 112(2) of the Crimes Act, is a matter which can be entertained by the Court of Criminal Appeal constituted by two or three Judges. We find that the sentences relating to the summary offences of obtain money by deception contrary to s 178BA of the Crimes Act 1900 (the summary offence in the second category) and all the matters falling within the third category are matters which can not be entertained by this Court but by the District Court pursuant to s 5A of the Justices Act.
**********