[..] additional cases were cited in argument:
R v Hays (2006) 160 A Crim
R 45.
R v Hood [2005] 2 Qd
R 54.
R v Lovell [1999] 2 Qd
R 79.
R v McGrath [2006] 2 Qd
R 58.
R v Mules (CA 297/2006; Court of Appeal
[..] (1957) 96 CLR 261.
R v Breeze (1999) 106 A Crim
R 441.
R v Carson (2008) 187 A Crim
R 435.
R v Flew (CA 23/2008; Court of Appeal, 26 September 2008, unreported); [2008] QCA 290.
R v Inkerman (CA
[..] August 2008, unreported); [2008] QCA 220.
R v Siganto (1997) 97 A Crim
R 60;141 FLR 73.
R v Truong [2000] 1 Qd
R 663.
R v Wharley (2007) 175 A Crim
R 253. Rodway v The Queen (1990) 169 CLR 515
[..] [1997] QCA 316.
R v Maclay (1990) 19 NSWLR 112.
R v Mallard (CA 450/1997; Court of Appeal, 17 April 1998, unreported); [1998] QCA 59.
R v Mason and Saunders [1998] 2 Qd
R 186.
R v Pora [2001]
[..] Amendment Act 2003, s 29. [8] [2000] 1 Qd
R 663. [9] (1999) 106 A Crim
R 441. [10]
R v Breeze (1999) 106 A Crim
R 441 at 443–444 [10]. [11] [1998] 2 Qd
R 186. [12] [1997] QCA 316. [13] As defined
[..] 662 [13]. [33]
R v Breeze (1999) 106 A Crim
R 441 at 444 [10]. [34] Queensland Acts 1997, Explanatory Notes, Vol 1, 319;
R v Breeze (1999) 106 A Crim
R 441 at 444 [11]. [35]
R v Breeze (1999)
[..] 15 [9]. [42] [1999] 1 Qd
R 670. [43] Fitzgerald P, Davies JA and Dowsett J. [44]
R v Breeze (1999) 106 A Crim
R 441 at 444 [10]. [45]
R v Breeze (1999) 106 A Crim
R 441 at 443–444 [10]. [46]
[..] 515, 518, 521; Siganto v The Queen (1998) 194 CLR 656, 662;
R v Truong [2000] 1 Qd
R 663 applied.
R v Mason and Saunders [1998] 2 Qd
R 186 distinguished. Decision of Howell DCJ affirmed. CASES CITED
[..] [2001] 2 NZLR 37.
R v Robinson, ex parte Attorney-General [1999] 1 Qd
R 670.341
R v S (CA 462/1998; Court of Appeal, 10 August 1999, unreported); [1999] QCA 311.
R v Salsone, ex parte Attorney-General
[..] Appeal, 23 February 2007, unreported); [2007] QCA 47.
R v Richardson; Ex parte Attorney-General (Qld) (2007) 175 A Crim
R 244.
R v Riley (CA 279/2007; Court of Appeal, 16 November 2007, unreported)
[..] was right to apply s 9 in the form it was in at the time of sentence see
R v Truong [2000] 1 Qd
R 663 at [25];
Siganto v
R (1998) 194 CLR 656 at 662–663. [61]The second reason is s 204 of
[..] Sentences Act 1992, pt 9A. [14] (2007) 175 A Crim
R 253. [15] (1990) 169 CLR 515. [16] [1999] QCA 311. [17]
R v Breeze (1999) 106 A Crim
R 441 at 444 [11]. [18] Penalties and Sentences Act
[..] that this contention may be inconsistent with this Courts ruling in
R v Truong .[8] He emphasised, however, that, in
R v Breeze ,[9] the court, differently constituted, whilst following Truong
[..] re-affirmed that the reasoning of this Court in
R v Mason and Saunders [11] on the question of retrospectivity should be followed. In Mason and Saunders and
R v 346Inkerman & Attorney-General of Queensland
[..] the court did not consider Mallard & White .[41] Since
R v S , Mason and Saunders has often been followed by this Court: see, for example,
R v Robinson, ex parte Attorney-General .[42] [33]It is prudent
[..] [54]There are two reasons for thinking that they did. The first reason is the decision in
R v Truong [2000] 1 Qd
R 663. Truong committed offences involving personal violence. When he did so s 9(4) of the
[..] point becomes more complicated because there are cases, the earliest of which was
R v Mason and Saunders [1998] 2 Qd
R 186 in which amendments to the PSA were considered not to operate retrospectively
[..] performed a substantial obligation of community service imposed at first instance.
R v Carson (2008) 187 A Crim
R 435 is closer in point of comparison though there are dissimilarities between that case
[..] material in a lasting format is a circumstance increasing the seriousness of the offence.
R v Wharley (2007) 175 A Crim
R 253. The number and nature of images possessed and distributed is also relevant to the
[..] Prosecutions (Crown). C W PORRITT Barrister Footnotes [1] (2008) 187 A Crim
R 435. [2] [2008] QCA 220. [3] (2008) 187 A Crim
R 435 at 442 [32]. [4] [2008] QCA 220at [25]. [5] These offences are Classification
[..] 73; (1997) 97 A Crim
R 60; High Court, Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, (1998) 194 CLR 656 at 662 [13], 662–663 [17]. [27] (1990) 19 NSWLR 112. [28] [2000] 1 Qd
R 663 at 669 [25].
[..] (1999) 106 A Crim
R 441 at 444 [12]. [36] (1999) 106 A Crim
R 441 at 444–445 [13]. [37] [2008] QCA 290 at [42]. [38] [1999] QCA 311 at 12 [30]. [39] [1999] QCA 311 at 25 [17]. [40] [1999] QCA 311
[..] unreported); [2007] QCA 391. Williams v Queensland Community Corrections Board [2001] 1 Qd
R 557. Williams v Western Australia [2006] WASC 165. CRIMINAL APPEAL A J Glynn SC for the applicant. M B Lehane
[..] not contend that Carlton had provided material to others via the internet. Relying particularly on
R v Carson ,[1] he submitted that a head sentence of between three and four years imprisonment should
[..] head sentence of between 18 months to two years imprisonment was appropriate. This was supported by
R v Salsone, ex parte Attorney-General .[2] Carlton was 23 years old at the time of his offending. He
[..] the CEM in Carltons possession was in a lasting format. This was an aggravating feature: see
R v Wharley .[14] Further, Salsone made admissions to police whilst Carlton declined to be interviewed
[..] in respect of Truongs conclusion that s 9(3) and s 9(4) were retrospective. So, too, did
R v S .[16] Mason and Saunders was concerned with pt 9A which was introduced into the Penalties and
[..] authorised by the former law. This approach seemed inconsistent with Siganto v The Queen [26] and
R v Maclay ,[27] however those cases were based upon statutes with clear transitional provisions requiring
[..] 9. However, we would not at this stage be prepared to depart from the view taken by this court in
R v Mason and Saunders
in relation to the non-application of Part 9A to offences committed before
[..] wrongly decided. The Court considered that Truong , although contrary to this Courts decision in
R v Mallard & White ,[31] should be followed. This was because in Mallard & White the point was effectively
[..] Act introducing the present s 9(3) and s 9(4).[36] [31]As Chesterman JA points out, this Court in
R v Flew recently followed Truong as to the effect of s 9(3) and s 9(4).[37] Flew did not consider
[..] did not concern s 9(6A) and s 9(6B); and Mr Flew was not legally represented in his appeal. [32]In
R v S , this Court re-affirmed the conclusion in Mason and Saunders and Breeze that pt 9A did not
[..] Truong , followed Truong , although specifically only in respect of the 1997 amendments to s 9. In
R v S the Court endorsed the criticisms of Truong made by this Court in Breeze . [35]This Courts
[..] tension between the views of this Court expressed in Truong on the one hand, and in Breeze and
R v S on the other, as to whether s 11(2) applied to amendments to s 9. That is probably why the 2003
[..] legislative intention to make s 9(6A) and s 9(6B) retrospective unless this was clearly stated: cf
R v Pora .[49] It follows that the sentencing judge was wrong to rely on s 9(6A) and s 9(6B) if to do
[..] last resort; and(ii)a sentence that allows the offender to stay in the community is preferable; and...
(r)any other relevant circumstance.(3)However, the principles... in subsection 2(a) do not apply to the
[..] prevailing at the time of sentence. [60] Truong has been regarded as authoritative, and followed. In
R v Flew [2008] QCA 290 Fraser JA (with whom Atkinson J agreed) said: [42]Whilst there were intervening
[..] under which a greater part of the sentences are to be served. However, this matter was determined in
R v Mason and Saunders ... upon a broad consideration of what amounts to an increase of punishment.
[..] inconsistent with what had been said in Siganto v The Queen (1998) 194 CLR 656 and went on ([2000] 1 Qd
R 663 at 669): In these circumstances we would hold that s 9 of the... PSA , both before and after
[..] Part 9A to offences committed before 1 July 1997. [74]The point concerning pt 9A arose again in
R v S [1999] QCA 311. Pincus JA noted that: In Truong a remark was made implying doubt about
[..] Mason should be followed and thought that it was: ... not affected by the decision
in
R v Truong which held that s 9... of the... PSA ... both before and after the 1997 amendment, is purely
[..] when the offences occurred. [76]The point also emerged in The Queen v Breeze (1999) 106 A Crim
R 441. The Court (Pincus and Davies JJA, Demack J) rejected the doubt expressed in Truong about the
[..] increase. [79]The Court of Criminal Appeal (Martin CJ, Kearney and Priestley JJ) said(1997) 97 A Crim
R 60 at 66–67: The applicant submitted that... to abolish... remission... amounts to an increase
[..] Appeal, in considering similar amendments to section 9... found that the provisions were procedural (
R v... Truong... ), and therefore could operate retrospectively. [92]Given this understanding it
[..] 365require the sentencing judge to disregard the factors that are otherwise listed in paras (b) to
(r) of s 9(2) of the Act. [107]In the context of the process that a sentencing judge must undertake in
[..] 9(3) and s 9(4). [22] As defined under Penalties and Sentences Act 1992, pt 9A. [23] [1998] 2 Qd
R 186 at 189; Davies and Pincus JJA, de Jersey CJ agreeing. [24] de Jersey CJ, Thomas JA and Mackenzie
[..] [46] Penalties and Sentences Act 1992, s 211. [47] [1998] 2 Qd
R 186 at 188–189. [48] (2005) 228 CLR 357 at 383–390 [65]-[84], McHugh J. [49] [2001] 2 NZLR 37. [50] Criminal Code 1899, s 11(2)
[..]
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