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- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
R v Nooryan  QCA 294
CA No 305 of 2018
DC No 2876 of 2017
Court of Appeal
District Court at Brisbane – Date of Sentence: 19 November 2018 (Ryrie DCJ)
13 December 2019
18 November 2019
Morrison JA and Mullins AJA and Lyons SJA
Application for leave to appeal is refused.
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE – GENERALLY – SODOMY OF A PERSON UNDER THE AGE OF 18 YEARS – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – OTHER MATTERS – where the applicant was convicted of seven counts of sodomy of a person under the age of 18 years – where the applicant was sentenced to 14 months’ imprisonment, wholly suspended with an operational period of two years – where the applicant’s conduct was an offence at the time of offending but the section defining the conduct as an offence has since been repealed – where the applicant challenges their sentence on two grounds – where it is contended that no punishment should have been imposed on the applicant by operation of section 11 of the Criminal Code and section 180 of the Penalties and Sentences Act 1999 (Qld) – where it is contended that the sentence was manifestly excessive – where the applicant was not charged with sodomy until after the repeal of section 208 of the Criminal Code – whether the applicant should have been punished when considering the operation of section 11 of the Criminal Code and section 180 of the Penalties and Sentences Act 1999 (Qld) – whether the sentence imposed upon the applicant was manifestly excessive
Acts Interpretation Act 1954 (Qld), s 20
Criminal Code (Qld), s 11, s 208, s 578(1) (as at 3 February 2016)
Penalties and Sentences Act 1992 (Qld), s 180
R v Frame  QCA 9, cited
R v JAA  QCA 365, cited
R v PAZ  3 Qd R 50;  QCA 263, cited
S E Harburg for the applicant
T A Fuller QC for the respondent
Russo Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- MORRISON JA: When the applicant was aged 33 years old he became friends with the complainant, then aged 16 years. They met on Facebook. They spoke to one another, online and by telephone, for a few weeks. Soon after that they met in person while socialising with mutual friends. They then commenced a sexual relationship.
- The relationship and the events the subject of the offences with which the applicant was charged, spanned the period 1 March 2015 to 6 January 2016. The complainant had turned 16 just 12 days before the start of that period. At the end she was some six weeks off being 17.
- During the period referred to the applicant and the complainant had sexual intercourse frequently, up to five times a week until about September or October 2015, then less frequently after that. On all occasions the applicant, with the complainant’s consent, had anal sex with her, usually ejaculating in her anus.
- The applicant and the complainant discussed keeping their relationship a secret from the complainant’s family. It eventually came to light on 7 January 2016, the morning after the last offence. The complainant’s parents asked where she had been, and her mother told her someone had seen her with a man, and that they looked like a couple. The complainant revealed the offending to her parents. A few days later she made a formal complaint to police and the following month participated in a pretext call with the applicant, where he admitted to sexual interactions.
- The applicant was charged with seven counts of sodomy of a person under the age of 18 years. Counts 1 and 3 occurred between 1 March 2015 and 22 October 2015. Counts 5, 7 and 8 were between 1 September 2015 and 22 October 2015. Count 9 was between 22 October 2015 and 6 January 2016, and count 10 occurred on 6 January 2016.
- The applicant pleaded guilty to those charges on 19 November 2018 and was sentenced the same day. The sentence on each count was 14 months’ imprisonment, wholly suspended for a period of two years. The applicant had served 28 days of presentence custody, which was declared time already served.
- The applicant now challenges his sentence on each count, but not his convictions. There are two grounds. First, the sentence miscarried because no punishment could be imposed on the applicant by operation of s 11 of the Criminal Code 1899 (Qld) and s 180 of the Penalties and Sentences Act 1999 (Qld). The second is that the sentence imposed was manifestly excessive.
Applicant’s personal circumstances
- The applicant was 33 years old at the time of the offending, and 36 years old at the time of sentencing. He had come to Australia by boat, as a refugee seeking asylum in 2012. He spent a deal of time in immigration detention before being granted a protection visa and released into the community.
- At the time of sentencing he was engaged to be married and his first child was due in February 2019.
- He had an inconsequential criminal record. With the support of MultiLink he had been engaged in stable employment for the two years prior to sentencing, and had previously worked in other jobs for most of his time in Australia.
- Counsel for the applicant at the sentencing hearing conveyed her instructions:
“that anal sex was engaged in by my client because of the cultural significance attached to virginity of the complainant and the community generally. It also avoided any risk of pregnancy…”
Chronology of the charges
- The applicant was originally charged on 3 February 2016 with 10 offences of rape. At that time s 578 of the Criminal Code provided that “Upon an indictment charging a person with the crime of rape, the person may be convicted of any offence, if established by the evidence”, including the offence of sodomy under the then s 208.
- On 23 September 2016, s 208 of the Criminal Code was repealed by s 4 of the Health and Other Legislation Amendment Act 2016 (Qld). The effect was to lower the age of consent to anal intercourse to 16 years. No replacement offence for the previous s 208 was enacted.
- On 15 June 2017 the applicant was committed for trial on the 10 counts of rape following a two day hearing in which the complainant was cross-examined.
- On 14 December 2017 an indictment was presented, charging the applicant with ten offences of sodomy. The form of the indictment noted that s 208(1)(a) had been repealed.
- On 18 October 2018 applications were brought to quash the indictment under s 596 of the Criminal Code, on the basis that the offence had been repealed and various conditions under s 11(1) of the Criminal Code were not satisfied. A second application was made to stay the indictment on the basis that no penalty could be imposed, or that it would be an abuse of process to prosecute the applicant for an offence which had been decriminalised. Those applications were dismissed, but on the same day the Crown indicated it would not proceed on counts 2, 4 and 6 of the indictment.
- On 19 November 2018 the applicant entered pleas of guilty to the remaining seven offences. It was contended again that day that the operation of s 11 of the Criminal Code precluded any punishment being imposed upon him, and application was made to refer the matter to the Court of Appeal on a point of law. Those applications were refused and the matter proceeded to sentence.
- The contentions raised by Ms Harburg of Counsel on behalf of the applicant require the consideration of three provisions, s 11 of the Criminal Code, s 180 of the Penalties and Sentences Act, and s 20 of the Acts Interpretation Act 1954 (Qld).
- Section 11 of the Criminal Code provides as follows:
“11 Effect of changes in law
- (1)A person cannot be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred; nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when the person is charged with the offence.
- (2)If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender can not be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law.”
- Section 20 of the Acts Interpretation Act provides for situations where an Act has been repealed:
“20 Saving of operation of operation of repealed Act etc.
- (1)In this section-
Act includes a provision of an Act.
repeal includes expiry.
- (2)The repeal or amendment of an Act does not-
- (a)revive anything not in force or existing at the time the repeal or amendment takes effect; or
- (b)affect the previous operation of the Act or anything suffered, done or begun under the Act; or
- (c)affect a right, privilege or liability acquired, accrued or incurred under the Act; or
- (d)affect a penalty incurred in relation to an offence arising under the Act; or
- (e)affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).”
- Section 180 of the Penalties and Sentences Act provides as follows:
“180 Effect of alterations in sentences
- (1)If a provision of this or another Act increases the sentence, or the maximum or minimum sentence, for an offence, the increase applies only to offences committed after the commencement of the provision.
- (2)If a provision of this or another Act reduces the sentence, or the maximum or minimum sentence, for an offence, the reduction—
- (a)extends to offences committed before the commencement of the provision; but
- (b)does not affect any sentence imposed before the commencement.”
- Ms Harburg of Counsel, appearing for the applicant, submitted that although s 20(2) of the Acts Interpretation Act preserved criminal liability in respect of the offences, the applicant could not have been punished because of the operation of s 11(1) or s 11(2) of the Criminal Code, and s 180 of the Penalties and Sentences Act. Further, the sentence was manifestly excessive by reference to the head sentence, the automatic recording of a conviction and the result that the applicant became a reportable offender under the Child Protection (Offender Reporting) Act 2004 (Qld).
- It was contended that the applicant was not charged with sodomy until the presentation of the indictment on 14 December 2017, at which time sodomy was no longer a criminal offence because of the repeal of s 208 of the Criminal Code. It was submitted the case was unlike that in R v PAZ because there was no charge of sodomy until after the repeal of that offence. When the indictment was presented on 14 December 2017, that was the first time that the applicant was charged “with the offence” for the purpose of s 11(1) of the Criminal Code. Prior to that time the charge was for an entirely different offence, namely rape.
- As to the operation of s 11(2) of the Criminal Code, it was submitted that this Court should adopt the construction referred to by McMurdo JA in R v HBT. It was acknowledged that the submission ran contrary to the decision of this Court in PAZ, but it was urged that PAZ should not be followed because to do so would give no effect to s 11(2) of the Criminal Code or s 180 of the Penalties and Sentences Act. The contentions accepted that s 20(2)(d) of the Acts Interpretation Act preserved the applicant’s liability to conviction, but given the repeal of the offence provision prior to his conviction and sentence, the appropriate sentence was that he be convicted and not further punished, with no conviction recorded.
- As to the question of manifest excess, it was contended that the fact that the applicant’s conduct was no longer criminal by the time of sentence meant that imprisonment should have been a sentence of last resort. Further, given the decriminalisation of the conduct it was said that rehabilitation, deterrence, community denunciation and community protection were not relevant purposes of sentencing. As the applicant had spent 28 days in presentence custody the appropriate sentence was to convict, without recording the conviction, and not further punish.
- Mr Fuller QC appearing for the respondent, submitted that at the time the applicant was charged with the offence of rape, s 578 of the Criminal Code (as it then was) provided that a person charged upon indictment with an offence of rape may be convicted of alternative offences established on the evidence, and one of those was the offence of sodomy under s 208 as it then stood. The offence under s 208 was a natural alternative and at the time he was charged the applicant was exposed to liability and penalty for that alternative count. It was submitted that the court should not decline to follow PAZ, because it had been subsequently adopted by this Court in R v JAA.
- As to the question of manifest excess, it was submitted that the sentencing judge took into account the fact that the offending conduct had been decriminalised, but central features warranting the sentence imposed included the age differential between the applicant and the complainant, sexual exploitation of a vulnerable person of young age, and the exploitative nature of the relationship. The conduct only ceased when the complainant’s parents became aware of it. Further, it was incongruous that s 20 of the Acts Interpretation Act would preserve liability but at the same time no penalty should be applied. The conduct warranted the sentence imposed.
- In R v PAZ this Court considered the way in which s 11(1) of the Criminal Code and s 20(2) of the Acts Interpretation Act operated where a person was convicted and sentenced for the offence of unlawful sodomy under s 208 of the Criminal Code subsequent to its repeal on 23 September 2016. There the accused person had been charged with the offence prior to the repeal. The court said:
“At the time when the acts the subject of counts 12-16 were committed they were offences under s 208 of the Criminal Code 1899. That meant the appellant was then subject to a liability accrued or incurred under the Criminal Code 1899, namely that he could be charged with, and prosecuted for, those offences. The appellant was also subject to a penalty incurred, in that the penalty was incurred at the time the offence was committed. A prosecution was commenced in relation to the offences, before the repeal of s 208. In my view, that was a proceeding in relation to a liability or penalty mentioned in s 20(2)(c). Therefore, under s 20 of the Acts Interpretation Act the repeal of s 208 does not mean that the prosecution can no longer be maintained, nor that the penalty cannot be imposed.”
- In R v JAA this Court was urged not to follow HXY or PAZ on the basis that they were incorrectly decided. Brown J noted that the High Court had refused special leave to appeal from PAZ. Her Honour also considered the alternative construction advanced by McMurdo JA in R v HBT. After analysing the competing views her Honour concluded that PAZ should be followed.
- Unless this Court considers that the reasoning in PAZ and JAA is plainly wrong, it should not overturn them but follow them. I do not consider that they are plainly wrong. They should be followed.
- Prior to the Health and Other Legislation Amendment Act 2016, s 578(1) of the Criminal Code provided:
“578 Charge of offence of a sexual nature
- (1)Upon an indictment charging a person with the crime of rape, the person may be convicted of any offence, if established by the evidence, defined in section 208 …”
- The applicant was charged with 10 offences of rape on 3 February 2016, well before the repeal of s 208 of the Criminal Code. At that time s 578 exposed such a person to alternative convictions under s 208, “Upon an indictment charging [that] person with the crime of rape …”.
- The definition of “indictment” is that it is “a written charge preferred against an accused person in order to the person’s trial before some court other than justices exercising summary jurisdiction”: s 1 of the Criminal Code. The offence of rape was not one which could be dealt with in a summary jurisdiction.
- The statement of agreed facts shows that on 3 February 2016 police executed a search warrant at the applicant’s home, when they arrested the applicant. He was then taken to the Brisbane City Watchhouse where he was charged and remanded in custody. The fact that the applicant was remanded in custody means that s 84(1) of the Justices Act 1886 (Qld) had been engaged. It provides:
“84 Remand of defendant
- (1)In any case of a charge of an indictable offence, if … from any other reasonable cause it becomes necessary or advisable to defer the hearing of a case, the justices before whom the defendant appears or is brought may adjourn such hearing to the same or some other place, and may from time to time remand the defendant to some prison, lockup, or other place of security …”
- The applicant’s remand could only have been by order of a magistrate.
- The fact that the applicant was brought before a magistrate on the charge of the indictable offence of rape, also means that prosecution proceedings had been commenced under s 42 of the Justices Act, which provides:
“42 Commencement of proceedings
- (1)Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant’s lawyers or other person authorised in that behalf.”
- The “complaint in writing” constitutes a written charge that the offence of rape was committed. That is sufficient to come within the definition of “indictment” in s 1 of the Criminal Code, being “a written charge referred against an accused person in order to the person’s trial”.
- Therefore, there was, as at 3 February 2016, “an indictment charging a person with a crime of rape” for the purposes of s 578(1) of the Criminal Code. In accordance with the reasoning in PAZ and JAA, the applicant was exposed no later than that point to the liability to be convicted of the offence of sodomy under s 208 and to punishment for that offence. Both the liability to be convicted and a liability to the penalty were preserved notwithstanding the repeal of s 208 in 2016.
- The second ground relied upon relates to the application of s 11(2) of the Criminal Code. It depends upon a rejection of PAZ and JAA. For the reasons given above PAZ and JAA should be followed. Accordingly, this ground fails.
- An additional submission was made that even if the liability to conviction and punishment was preserved under s 20(2) of the Acts Interpretation Act, nonetheless s 11(2) of the Criminal Code and s 180(2)(a) of the Penalties and Sentences Act should be read as affecting the extent of that punishment.
- In PAZ this Court held that the effect of s 20(2)(d) and (e) of the Acts Interpretation Act was to preserve penalties incurred when offences were committed, and that s 11(2) of the Criminal Code should not be construed as meaning that the “law in force” at the time of conviction referred to the amended or repealed law. In the circumstances s 11(2) of the Criminal Code has no scope for operation. That was the view reached by this Court in R v HBT. That conclusion was reaffirmed in R v JAA.
- There is no basis for distinguishing between the operation of s 11(2) of the Criminal Code and s 180 of the Penalties and Sentences Act in relation to the current issue.
- For these reasons ground 1 fails.
- The final challenge mounted by the applicant was on the basis that his sentence was manifestly excessive. The sentence on each account, to be served concurrently with the others, was 14 months’ imprisonment immediately suspended for a period of two years. The 28 days of presentence custody was declared as time served.
- The learned sentencing judge noted that the plea of guilty had been entered on what was going to be the first day of the trial. However, even though late, the guilty plea arose out of negotiations concerning what should be in the agreed schedule of facts. Her Honour therefore treated the plea of guilty as late but explicable.
- Her Honour also expressly took into account the fact that the offence of sodomy had been repealed in 2016. In doing so it was noted that the offence was one which had a maximum sentence of 14 years’ imprisonment.
- Relevant factors identified by her Honour in the course of her sentencing remarks included:
- (a)the age disparity between the applicant (33) and the complainant (16), with the associated disparity in maturity; Her Honour considered the age differential and maturity differential as being a matter of “real concern”, in that the applicant may well have been in a position to (wrongly) persuade the complainant that the relationship was appropriate;
- (b)the relationship was consensual, and the absence of any threats or physical force used towards the complainant;
- (c)both the applicant and the complainant tried to keep the relationship secret from her parents;
- (d)anal intercourse was engaged in, rather than vaginal intercourse, partly because of cultural considerations and the regard to virginity, as well as the risk of pregnancy;
- (e)the applicant’s personal circumstances, including the fact that he had come to Australia as a refugee and his good work history;
- (f)that counsel for the applicant had submitted that the sentence should be a term of nine months’ imprisonment wholly suspended;
- (g)the risk of deportation, which was qualified by the fact that the applicant had been granted a protection visa which made it unlikely that he would be deported; and
- (h)the lack of assistance from comparable cases.
- Ultimately, the learned sentencing judge found that the main factors affecting the imposition of a period of imprisonment, albeit suspended, was the length of time over which the offending occurred, the multiple acts of sodomy, the age disparity and a lack of maturity of the complainant.
- I am unable to reach the conclusion that the sentence was manifestly excessive. This was a case where a 33 year old mature man engaged in a 10 month relationship with a 16 year old girl. According to the findings, there was not just an age disparity but a disparity in maturity. Thus, even though outwardly consensual, this was a case of sexual exploitation of a young person. The fact that efforts were made to keep the relationship secret from the complainant’s parents demonstrates that the applicant was conscious of the inappropriateness of what was occurring, and its exploitative nature.
- Further, Counsel for the applicant at the sentencing hearing effectively conceded that a term of imprisonment was appropriate by contending that the sentence should be 10 months, less the 28 days served, wholly suspended. As was said in R v Frame:
“ It has been said recently on a number of occasions in this Court that, because a party is ordinarily bound by the conduct of his case at first instance, the circumstance that the sentence imposed on an applicant for leave to appeal accords with the submissions made on behalf of the applicant to the learned sentencing judge is an obstacle to an argument that the sentence imposed was manifestly excessive. In R v Walsh, I said:
“The imposition of a just sentence is, of course, the responsibility of the sentencing judge; but where the sentence which is imposed accords with the position taken by the offender before the sentencing judge, the contention that leave to appeal should be granted because the sentence is manifestly excessive is difficult to sustain. If the sentence were indeed manifestly excessive then the applicant would not have agreed, by his Counsel, that it might properly be imposed. The applicant's submission is one to which effect could be given only in special circumstances sufficient to warrant the conclusion that the applicant should not be regarded as bound by the conduct of his case in the court below (R v Carter  QCA 226 at ; R v AAF  QCA 235 at ). No such circumstances are apparent here.”
- The fact that the particular offence was decriminalised in 2016 was taken into account by the learned sentencing judge. However, the decriminalisation of that offence does not mean, in my respectful view, that little or no punishment should now be imposed. Liability to the penalty was preserved, as has been discussed above.
- The applicant’s personal circumstances and the consensual nature of what occurred, together with the fact that the offences occurred within a relationship, justified the suspension of the sentence. This was not a case, in my view, where no conviction should have been recorded.
- It cannot be demonstrated that the sentencing discretion miscarried.
- The application for leave to appeal should be refused.
- MULLINS AJA: I agree with Morrison JA.
- LYONS SJA: I agree with Morrison JA.
 This consisted of 45 days on Christmas Island, three months in Darwin and two months at the Curtin Detention Centre in Western Australia.
 Appeal Book (AB) 53 lines 21-23
  3 Qd R 50.
  QCA 227.
  QCA 365.
  3 Qd R 50.
 As at  (internal citations omitted).
  QSC 108, at .
 PAZ at -.
  QCA 365.
 With whom Sofronoff P and Douglas J concurred.
  QCA 227.
 JAA at  and .
 R v Perrin  2 Qd R 174 at ; R v JAA  QCA 365 at .
 AB 76.
 R v Gittins  Qd R 361 at 366-367.
 PAZ at -.
  QCA 227 at -,  and .
  QCA 365.
  QCA 9 at ; internal citations omitted; emphasis in original.
- Published Case Name:
R v Nooryan
- Shortened Case Name:
R v Nooryan
 QCA 294
Morrison JA, Mullins AJA, Lyons SJA
13 Dec 2019
- White Star Case: