R v Mason and Saunders[1997] QCA 421

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 355 of 1997

C.A. No. 357 of 1997

Brisbane

[R. v. Mason & Saunders]

THE QUEEN

v.

MARK JOHN MASON

and

STANLEY JAMES SAUNDERS

(Applicants) Appellants

Davies J.A.

Pincus J.A.

de Jersey J.

Judgment delivered 28 November 1997

Joint reasons for judgment of Davies and Pincus JJ.A.; separate reasons of de Jersey J. concurring as to the orders made.

IN EACH CASE - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND APPEAL ALLOWED ONLY TO THE EXTENT OF SETTING ASIDE IN EACH CASE THE DECLARATION THAT THE OFFENCES COMMITTED ON 19‑20 SEPTEMBER WERE SERIOUS VIOLENT OFFENCES.

JOINT REASONS FOR JUDGMENT - DAVIES AND PINCUS JJ.A.

Judgment delivered 28 November 1997

Each of the appellants was convicted after a trial by jury on 21 August last of assault occasioning bodily harm in company, four counts of rape, two counts of indecent assault with an aggravating circumstance being anal intercourse, three counts of indecent assault with an aggravating circumstance being a penis coming into contact with the mouth of the complainant and indecent assault.  Mason was sentenced to 14 years imprisonment and Saunders to 12 years imprisonment, that being the sentence in each case for rape, the other sentences being imposed concurrently.  In each case the learned sentencing Judge declared the appellants' convictions, other than that for bodily harm in company and the first of those of indecent assault with an aggravating circumstance of bringing a penis into contact with the complainant's mouth, to be convictions of serious violent offences as part of the sentence.

Each appellant appealed to this Court against his conviction and also sought leave to appeal against his sentence.  On the hearing of those appeals each abandoned the appeal against conviction and each of those appeals was dismissed.  Mr. Vasta Q.C. who then appeared for each of the appellants in respect of their applications for leave to appeal against sentence informed the Court that the appellants sought to appeal only against the declarations to which we have referred.

Those declarations were made pursuant to s. 161B of the Penalties and Sentences Act 1992.  That section is in Part 9A which came into operation on 1 July 1997.  The offences to which we have referred were all committed on the night of 19-20 September 1996.  As we have said the appellants were convicted on 21 August 1997 and they were sentenced on the following day, 22 August.  Consequently the offences occurred before but the sentences were imposed after the commencement of the relevant provision.  The appellants therefore submit that the provision does not apply to these offences and that consequently the learned sentencing Judge had no power to make the declarations which he did.  The question, however, is wider than whether the declarations should have been made for, if Part 9A applies to offences committed before it commenced, those offences the sentences for which were more than ten years were serious violent offences whether or not declarations were made in respect of them:  s. 161B(2).

In advancing the submissions which they did, the appellants relied on the decision of this Court in R. v. Inkerman C.A. Nos. 294 and 302 of 1997, judgment in which was delivered on 29 August 1997.  That case decided the question which arises in this case in the appellant's favour and, if it was correctly decided, the declarations made in each case must be set aside.

Whilst relying on that decision Mr. Vasta Q.C. quite properly pointed to s. 204 of the Penalties and Sentences Act which was not referred to in that case and which, on one view, would lead to a contrary result.  Section 204(1) provides:

"This Act applies to any sentence imposed after the commencement of this section, irrespective of when the offence was committed."

Section 14H(1) of the Acts Interpretation Act 1954 provides as follows:

"In an Act, a reference to a law (including the Act) includes a reference to the following -

1. the law as originally made, and as amended from time to time since it was originally made;

... "

If, as appears at first sight, "this Act" in s. 204(1) means the Penalties and Sentences Act as amended from time to time then Part 9A, and in particular s. 161B, applies to the sentences imposed here.  However the application of s. 14H(1) may be displaced by a contrary intention appearing in the Act:  Acts Interpretation Act, s. 4.

But, read literally, s. 204(1) as applied by s. 14H(1)(a), would apply any provision subsequently added by amendment to the Act to any sentence imposed after 27 November 1992, the date of commencement of s. 204, notwithstanding that the sentence was imposed before the provision became law.  That was plainly not its intention.  It was a transitional provision in the original Act, its purpose being to ensure that any sentence imposed after 27 November 1992 would be subject to the terms of the Act as originally enacted notwithstanding that the offence in respect of which it was imposed was committed before that date.  It could not have intended to apply any future amendments to all sentences imposed after that date.

There are transitional provisions also in the amending Act of 1997 which added Part 9A.  These are contained in s. 206.  Neither of them applies to the present case.  The second of them, in s. 206(2), applies where a sentence, imposed after the commencement of Part 9A, when added to a sentence to which it is cumulative, makes the total sentence one to which Part 9A applies.  It is said, in effect, in the transitional provision that this is so even if the earlier sentence, to which the sentence imposed is cumulative, was imposed before the commencement of Part 9A.  But that provision does not assist, one way or the other, in answering the present question.

Nor do the explanatory notes to the amending Bill.  There is a general statement that the legislation will not be retrospective.  However under the heading "Fundamental legislative principles" appears the following:

"The only issue arising in relation to fundamental legislative principles concerns the potential for application of the new sentencing regime 'retrospectively' to those prisoners who, before the commencement of this Act, were sentenced in relation to an offence in the schedule and who, after the commencement of this Act, are further sentenced to a cumulative term for another schedule offence, where the total term of imprisonment is or exceeds 10 years.  It will also be irrelevant for the purposes of this Act whether the offence for which the person is being sentenced was committed before or after the commencement of this Act.  Likewise, under s. 206, a recommendation made before the commencement of this Act that a person be eligible to apply for parole earlier than is otherwise allowed by statute will be of no further effect if the person is later convicted of a serious violent offence.

These provisions are not retrospective in the true sense and their application to prisoners is wholly dependent upon subsequent further offending behaviour involving crimes of violence."

The underlining in this passage is ours;  We find some difficulty in understanding the intention of the underlined sentence.  The passage appears to be primarily concerned with s. 161C(2)(b) and the reference to it in s. 206(2);  that is the case where the total term of a sentence imposed after the commencement of s. 9A and a sentence imposed before that date to which the later sentence is cumulative is one to which Part 9A would apply.  However the underlined sentence appears to refer to the later sentence, that is the sentence being imposed after the commencement of Part 9A.  And it appears to say in respect of it that it is irrelevant whether the offence for which it is imposed was committed before or after the commencement of the amending Act.  Read literally this supports the result reached by the application by s. 204 of s. 161B to such sentence.  But there is nothing in either s. 161C or s. 206(2) which supports that conclusion.

Against that view are s. 11(2) of the Criminal Code and s. 20C of the Acts Interpretation Act.  The former, which persuaded this Court to reach the conclusion it did in Inkerman, is in the following terms:

"If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot 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."

The latter of these provisions is relevantly as follows:

"(1)In this section -

"Act" includes a provision of an Act.

...

(3)If an Act increases the maximum or minimum penalty, or the penalty, for an offence, the increase applies only to an offence committed after the Act commences."

The main effect of the application of Part 9A to offences is that the offender is not eligible for release on parole until he has served 80 percent of the term of imprisonment imposed on him:  Corrective Services Act 1988, s. 166(1)(c).  The removal of that prospect, in our view, punishes the offender to a greater extent than was authorised by the former law, within the meaning of s. 11(2) and increases the penalty for the offence within the meaning of s. 20C(3) of the Acts Interpretation Act.  The former of these conclusions agrees with that of this Court in Inkerman.  However the conclusion in both respects is one which Demack J. in R. v. Sayers C.A. No. 104 of 1997, judgment in which was delivered on 5 September 1997, described as "debatable".  His Honour thought that the purpose of the amending Act was rather "to alter the regime under which certain sentences of imprisonment are to be served".  In our respectful opinion the real effect of Part 9A is, at least prima facie, to ensure that, in respect of sentences to which it applies, the offender will serve a greater proportion of his or her sentence in actual custody.  In our view neither s. 11(2) nor s. 20C(3) should be given a narrow technical construction.  The purpose of each would be contravened if Part 9A were to apply to offences committed before it commenced.

If s. 204(1), as applied by s. 14H(1), applies to a sentence imposed under Part 9A it will, to that extent, exclude the operation of ss. 11(2) and 20C as it was enacted subsequently to those provisions.  However, for reasons which we have already given, although the question is not free from doubt, we do not think that s. 204(1), in referring to "This Act" was intending to refer to subsequent amendments to the Penalties and Sentences Act.  Consequently that intention displaces the application of s. 14H(1).

It remains impossible satisfactorily to explain the underlined passage from the explanatory notes to the 1997 amendment Bill.  But if it is intended to give s. 204 an operation it was plainly never intended to have we think it should be ignored.

For those reasons, in our view, Inkerman was correctly decided and consequently this Court should follow it and conclude that Part 9A does not apply to offences committed before its commencement, other than s. 161C(2)(b) which applies to the earlier sentence to which reference has been made.  We would therefore grant each of the applications and allow each appeal against sentence only to the extent of setting aside in each case the declaration that the offences  identified earlier were serious violent offences.

REASONS FOR JUDGMENT - de JERSEY J

Judgment delivered 28 November 1997

I have had the advantage of reading the joint reasons for judgment of Davies and Pincus JJA. I agree with those reasons, and with the orders their Honours propose.