SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  I have had the advantage of reading in draft the reasons for judgment prepared by Chesterman JA.  I agree with the reasons and the order proposed by his Honour.  I wish, however, to associate myself specifically with his Honour's resolution of the question as to the application of s 9(6A) and s 9(6B) of the Penalties and Sentences Act 1992 (Qld) ("the PSA") to sentencing proceedings which occur after they have come into force in respect of offences committed before that time.

[2] In my respectful opinion, Chesterman JA is right, for the reasons he gives, to treat both of this Court's decisions in R v Truong[1] and R v Mason and Saunders[2] as correct and capable of peaceful co-existence:  they deal with quite different issues.

[3] It is, I think, clear that s 11(2) of the Criminal Code 1899 (Qld) does not refer to provisions such as s 9(6A) and s 9(6B) of the PSA.

[4] Section 11(2) of the Criminal Code provides:

"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 …"

[5] Sections 9(6A) and s 9(6B) of the PSA are concerned, as were the provisions which they amended, including s 9(2)(a), to lay down the principles to be applied by the Court in sentencing an offender.  These provisions inform the exercise of the sentencing discretion:  they are not concerned to authorise the imposition on an offender of punishment to any particular extent, much less "to any greater extent than was authorised by the former law."  The extent of the punishment authorised for a given offence is determined by legislation other than s 9 of the PSA.

[6] The application of the sentencing principles in s 9 as amended will not result in the imposition of punishment to a greater extent than might have been imposed prior to the amendment in question.  The most that can be said is that the application of the amending sentencing principles may have that effect.  That this is so can be understood more clearly when one reflects upon the nature of the sentencing process, described in the High Court in Markarian v The Queen,[3] as a process of "instinctive synthesis". 

[7] In such a process, some of the principles prescribed by s 9 of the PSA may have great weight and others little weight, depending on the circumstances of each offence and each offender.  In some cases, some of these principles will have little or no effect upon the outcome of the process because, in the particular circumstances, other principles have an almost overwhelming claim on the sentencing discretion.  The nature of the balancing process involved in sentencing an offender was explained succinctly by Kirby J in Markarian v The Queen:[4]

"I agree that there is no single correct sentence (unless it is lawfully fixed by Parliament). I also agree that sentencing is not a mechanical, numerical, arithmetical or rigid activity in which one starts from the maximum fixed by Parliament and works down in mathematical steps (AB (1999) 198 CLR 111 at 121-122 [16]; Wong (2001) 207 CLR 584 at 611 [74]-[75], 612 [77]; R v Whyte (2002) 55 NSWLR 252 at 278 [160]-[166]). The process is not so scientific. Because there are a multitude of factors to be taken into account, many of them pulling successively in opposite directions, the evaluation, in terms of time of imprisonment, quantity of fine or other sanction, is necessarily imprecise (Weininger (2003) 212 CLR 629 at 645 [50]). Human judgment is inevitably invoked. In sentencing there is sometimes a legitimate role for differences of judicial view. These may occasionally favour the extension of leniency, as Osenkowski ((1982) 30 SASR 212 at 212-213 per King CJ) shows. Necessarily, there must also be room for the views of a judicial officer who takes a more punitive view of all of the relevant considerations in the case. So long as all relevant considerations are given due attention, the discretionary character of sentencing will inhibit appellate interference."

[8] In my respectful opinion, s 11(2) of the Criminal Code is not engaged by the alteration of the sentencing principles in s 9 of the PSA effected by the enactment of s 9(6A) and s 9(6B).

[9]  CHESTERMAN JA:  The applicant pleaded guilty to one charge of distributing child exploitation material on 12 December 2007 (s 228C of the Criminal Code);  one charge of knowingly possessing child exploitation material on 12 December 2007;  and two charges of knowingly possessing such material on 9 January 2008 (s 228D).

[10]  He was sentenced on 22 February 2009 on each of counts 1, 2 and 3 to a term of two years’ imprisonment to be suspended after six months with an operational period of two years.  On count 4 he was sentenced to a term of six months’ imprisonment to be followed by two years’ probation.  The sentences of imprisonment were to be served concurrently.

[11]  The applicant had a criminal history.  On 20 February 2007 he was dealt with in the Richlands Magistrates Court on a charge of committing a public nuisance and possessing a restricted item.  No convictions were recorded and he was fined $75 and $200 respectively.  On 26 October 2007 the applicant pleaded guilty in the Beenleigh District Court to a charge of assault occasioning bodily harm whilst armed and in company.  He was sentenced to nine months’ imprisonment but released immediately on parole.  On 23 May 2008 he was again dealt with in the Richlands Magistrates Court for possessing a dangerous drug, permitting premises to be used for the ingestion of drugs and possession of a utensil in connection with ingesting drugs.  The offences were all committed on 9 January 2008.  He was fined $450 “on all charges”.

[12]  The offences against s 228C and s 228D, as well as the charges against the Drugs Misuse Act were committed while the applicant was on parole for the assault.  The commission of these offences constituted a breach of the terms of his parole which was suspended on 23 January 2008 and effectively cancelled on 13 February 2008.  The applicant was taken into custody on 24 January 2008 and served the unexpired portion of the sentence imposed by the Beenleigh District Court, about six months.

[13]  The applicant used his home computer to access child pornographic sites on the internet on three occasions.  Each time he downloaded a number of still images or films onto compact discs and his computer tower.

[14]  The applicant transmitted the pornographic material, or some of it, onto a shared directory, LimeWire, which is a free file sharing internet program.  A police officer who had access to the program observed pornographic images the applicant had posted. 

[15]  Counts 1 and 2 were constituted by the applicant posting child exploitation material (“CE material”) which he had downloaded onto the LimeWire site.  12 December 2007 was the date the police officer visited the site.  A search warrant was executed at the applicant’s home on 9 January 2008.  The search revealed two compact discs containing CE material.  This was the subject of count 3.  The computer tower itself contained 14 different films of CE material.  This was the subject of count 4. 

[16]  Many of the films and images were of prepubescent children in sexually explicit poses and/or engaging in sexual activity between themselves and with adults.  It is conventionally regarded as CE material of the most serious kind or, of the “worst possible category”.

[17]  The applicant was 21 years old at the time of the offences and 22 when sentenced.  He was a married man with a two year old son.  He had been in regular employment and was described as having “a good work ethic”.  He did have prior convictions which I have already described.  The offending was said to be the result of curiosity rather than an active search of the internet to locate child pornographic sites or images of children engaged in precocious sexual activity.  I interpolate to say that I am sceptical that the applicant should turn to pornographic sites on three separate occasions out of curiosity.  If that was his motivation it is, at least to my mind, puzzling why his curiosity was not satisfied by the revolting and disturbing images he must have seen on his first visit.  To return suggests not curiosity, but a prurient interest in the subject matter.

[18]  In the applicant’s favour he pleaded guilty at an early stage and the charges proceeded against him at an uncontested committal.  Against these facts is the consideration that when interviewed by the police the applicant was less than frank and sought to conceal or diminish his use of the internet sites.  As I mentioned, the offences were committed while the applicant was on parole.

[19]  Section 9(2) of the Penalties and Sentences Act 1992 (“PSA”) provides that:

“In sentencing an offender a court must have regard to –

(a)principles that -

(i)a sentence of imprisonment should only be imposed as a last resort;  and

(ii)a sentence that allows the offender to stay in the community is preferable;  ...”

[20]  The Criminal Code and Other Acts Amendment Act 2008 inserted s 9(6A) and s 9(6B) in the PSA with effect from 1 December 2008.  They provided:

“(6A)... the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender for the following offences –

...

(d)an offence against the Criminal Code, ... section 228C or 228D.

(6B)In sentencing an offender to whom subsection (6A) applies, the court must have regard primarily to –

(a)the nature of any image of a child that the offence involved ...

(b)the need to deter similar behaviour ...

(c)the prospects of rehabilitation ...

(d)the offender’s antecedents, age and character; and

(e)any remorse ...

(f)any medical ... or other relevant report;

(g)anything else about the safety of children under 16 that the sentencing court considers relevant.”

[21]  The applicant committed the offences before the addition of subsections (6A) and (6B) but was sentenced after they were included in the PSA.  The primary judge proceeded on the basis that subsection (6A) had displaced the principle that imprisonment was to be imposed only as a last resort, expressed in s 9(2)(a) and that subsection (6B) enumerated the factors to be taken into account and given primacy. 

[22]  The application by the primary judge of the PSA as amended in December 2008 was made a ground of appeal which was subsequently abandoned.  Mr Simpson, who appeared pro bono for the applicant, accepted the correctness of R v Truong [1989] QCA 21 and R v S [1999] QCA 311 as establishing that amendments to s 9 operated retrospectively.

[23]  The same point was recently argued before this Court, R v Carlton [2009] QCA 241 in which judgment is reserved.  However, counsel for the applicant declined to advance the ground, even formally, pending delivery of judgment in Carlton.  Mr Simpson’s concern was that should the application succeed on other grounds the applicant might be released from custody earlier than if judgment should be delayed while the point is considered.  He conceded that whether or not s 9(2)(a) of the PSA applied to the applicant’s sentencing a term of actual imprisonment was an appropriate punishment and was within the range of available penalties. 

[24]  Despite the abandonment of ground 1 the point was comprehensively addressed by the respondent and should be decided. 

[25]  In my opinion the applicant was right to abandon the ground and the primary judge was right to apply subsection (6B) and to proceed free of the constraint imposed by s 9(2)(a).

[26]  The first basis for the opinion is, as the applicant identified, provided by the decision of this Court in R v Truong [2000] 1 Qd R 663.  Truong committed offences involving personal violence.  When he did so s 9(4) of the PSA provided that a court might impose a sentence of imprisonment on an offender younger than 25 without previous convictions only if satisfied that no other sentence was appropriate in all the circumstances.  Truong came within the terms of the subsection but by the time he was dealt with s 9 had been amended;  subsection (4) removed and s 3, displacing s 9(2)(a) with respect to offences of violence, inserted.  The Court (de Jersey CJ, Thomas JA, McKenzie J) held that Truong was to be sentenced according to the PSA as it was at the time of the sentence, not as it was when the offences were committed.  The restraint in ss (4) was therefore not applicable.

[27]  The Court said (666-7):

“On behalf of the Crown Mr Moynihan submitted that the factors prescribed in s. 9 of the PSA set out the way in which a judge is to approach the facts and the manner to proceed when passing sentence.  It is, he submits, a procedural provision.  That, we think, is plainly correct.  By way of example, statutory amendments altering existing law with respect to corroboration have been authoritatively held to be merely procedural.  In Rodway’s case the court held that the provisions ‘operated to affect the way in which rights fell to be determined at trial and, for that reason, they did not fall within the presumption against retrospective operation’ and that ‘both amendments were procedural in character’.  ...  It may generally be taken that a procedural statute is, in the absence of an indication to the contrary, to be construed as retrospective, that is to say that its application may relate to past events.”  (footnotes omitted)

[28]  The principle underlying the judgment is that expressed by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267:

“The general rule ... is that a statute changing the law ought not ... be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.  But, given rights and liabilities fixed by reference to past ... events, the law appointing or regulating the manner in which they are to be enforced ... is not within the application of such a presumption.  Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities ... notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities ... was complete and rested on events ... past and closed.”

[29]  The case referred to, Rodway v The Queen (1990) 169 CLR 515, was one in which a  section of the Tasmanian Criminal Code providing that no person should be convicted of particular offences on the uncorroborated evidence of the complainant was repealed after Rodway had committed the offence but before he was tried and convicted.  The Court (Mason CJ, Dawson, Toohey, Gaudron, McHugh JJ) said (518):

“The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction.  It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation.  It would, we think, be more accurate to say there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure.  Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption.  It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events.  A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance.”

[30]  In a later passage (521) the Court said:

“But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right.  It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity.  A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.”

[31]  The judgment in Truong proceeded on the basis that these remarks are apposite to the procedure pertinent to sentencing:  to paraphrase, a person who commits a crime does not have a right to be sentenced in any particular way, merely a right to be sentenced according to the practice and procedure prevailing at the time of sentence.

[32] 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 amendments to the sentencing principles expressed in s 9 of the ... PSA ... the authorities confirm that the sentencing judge 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.”

[33]  There is another basis for thinking that s 9(2)(a) had been displaced.  It is s 204 of the PSA which was part of the act when first enacted.  It provides:

“(1)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 (“the Interpretation Act”) provides:

“In an Act, a reference to a law (including the Act) includes a reference to the following –

(a)the law as originally made, and as amended from time to time since it was originally made;”

Section 4 of the Interpretation Act provides that its application may be displaced by a contrary intention appearing “in any Act”. 

[34]  The effect of these two provisions, if s 14H(1) is not displaced, is that the PSA, as amended from time to time, applies to the imposition of a sentence regardless of when the offence for which an offender is being sentenced was committed.  The PSA as it is at the time of the sentence, is to be applied. 

[35]  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.  The reasoning in these cases may be thought to be inconsistent with Truong.  The facts of Mason are relevantly indistinguishable from those in the present application and in Truong.  Offences of violence were committed before s 9 was amended in the manner described in Truong.  The Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 which introduced those changes also added Part 9A to the PSA.  Its sections provided that in specified circumstances an offender sentenced to imprisonment for a serious violent offence, (as defined), must serve 80 per cent of the sentence before being eligible for parole. 

[36] Mason held that the provisions of Part 9A did not apply to an offender who committed a serious violent offence prior to the date of the amendments but who was sentenced afterwards.  Davies and Pincus JJA (with whom de Jersey J, as the Chief Justice then was, agreed) referred to s 204 of the PSA and s 14H of the Interpretation Act but concluded that the operation of s 14H had been displaced by contrary intention.  The contrary intention was found in  (i) the Explanatory Notes to the Bill introducing the amendments which made it tolerably clear that Part 9A was not meant to be retrospective, and  (ii) the terms of s 11(2) of the Criminal Code and s 20C of the Interpretation Act.

[37]  Section 11(2) provides:

“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”.

Section 20C provides:

“(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.”

[38]  Davies and Pincus JJA said (189):

“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 per cent of the term of imprisonment imposed on him ... .  The removal of that prospect (i.e. of parole) ... 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) ... .  ... 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.”

[39]  Their Honours said this about s 204 of the PSA (at 188):

“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 ... 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.”

[40]  In my respectful opinion this is a serious misunderstanding of the effect of s 204(1) and 14H(1)(a).  It is no doubt right to say that their combined effect is not “to apply any future amendments to all sentences imposed” at any time after the commencement of the PSA.  Such a reading of the sections would require a sentencing court to take account of amendments before they were enacted.  But that is not what the two sections do.  They do not impose a subsequent altered state of the law on a sentencing process concluded before the amendment was enacted.  A plain reading of the sections is that the law to be applied when passing sentence is to be found in the PSA as it stands at the time the sentence is imposed regardless of when the offence was committed, as Fraser JA pointed out in Flew. 

[41]  Notwithstanding the misunderstanding of s 204 Mason can be accepted as authority for the proposition that Part 9A of the PSA was to be applied only to offences committed after the 1997 amendments.  That this was the point in issue appears in the passage at 187:

“Those declarations were made pursuant to s. 161B of the ... PSA…  That section is in Part 9A which came into operation on 1 July 1997.  The offences ... were all committed (in) ... September 1996.  ... the appellants were ... sentenced on ... 22 August (1997) ... .  The question, … is wider than whether the declarations should have been made for, if Part 9A applies to offences committed before it commenced, those offences ... were serious violent offences whether or not declarations were made”.

[42]  The essence of the reasoning in Mason is that (i) Section 11(2) of the Criminal Code and s 20C(3) of the Interpretation Act displace the application of s 14H of the Interpretation Act so that s 204 does not apply Part 9A retrospectively;  (ii) Section 11(2) and s 20C(3) together with the Explanatory Notes provide compelling grounds for construing the amendments inserting Part 9A as operating prospectively.  This conclusion depends on characterising Part 9A as increasing a maximum penalty, or making an offender liable to be punished to a greater extent than formerly.

[43]  The judgment in Truong expressed some doubt about the correctness of Mason.  The Court thought it was “arguable” whether the 1997 amendments:

“... increased any actual penalties, although it plainly subjected offenders to a regime 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.”

[44]  It noted a submission that the reasoning in Mason was inconsistent with what had been said in Siganto v The Queen (1997) 194 CLR 656 and went on (669):

“In these circumstances we would hold that s. 9 of the ... PSA, both before and after the 1997 amendment, is a purely procedural provision and that nothing in s. 11 of the Code or in s. 20 or s. 20C of the ... Interpretation Act entitle the applicant to be sentenced according to the earlier version of s. 9.  However, we would not at this stage be prepared to depart from the view taken by this court in ... Mason ... in relation to the non-application of Part 9A to offences committed before 1 July 1997.”

[45]  The point concerning Part 9A arose again in R v S [1999] QCA 311.  Pincus JA noted that:

“In Truong a remark was made implying doubt about the correctness of Mason and Saunders”

but expressed the opinion that the decision was:

“... correct and should be followed.”

[46]  The President agreed that 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 procedural and therefore has application to sentences imposed after the 1997 amendment regardless of when the offences occurred.”

[47]  The point also emerged in The Queen v Breeze [1999] QCA 303.  The Court (Pincus and Davies JJA, Demack J) rejected the doubt expressed in Truong about the correctness of Mason but nevertheless thought that Truong should be followed.  It is important that the court in Breeze expressly endorsed Truong.  It did however say:

“The Court gave as one of the reasons for its conclusion in Truong that the factors prescribed in s 9 ... are procedural.  It is not, with respect, evident that laws relating to the matters taken into account in determining the level of sentence are other than substantive; for example, if the Parliament decreed that no or little discount should be given for a plea of guilty or for co-operation with the police, that would be a change in the substantive law.

...

The Explanatory Notes to the bill which became the 1997 amendment included the statement that the legislation would not be retrospective ... .  Mason ... should continue to be followed, on the question of retrospectivity.”

[48]  It is necessary to say something about Siganto because that case was relied on in Truong to criticise Mason and was in turn criticised in Breeze.

[49]  Siganto was convicted and jailed for rape after the enactment of the Sentencing Act 1995 (NT) which required the non-parole period of a sentence be not less than 70 per cent of the term imposed for offences of the type committed by Siganto.  A further legislative amendment abolished remissions for good conduct.  The rape was committed before the Act came into force, but by s 130 the Act applied to a sentence imposed after the commencement of the section (and the Act) irrespective of when the offence was committed.  Notwithstanding this express provision Siganto argued that the Sentencing Act should not apply to him because of s 14(2) of the Criminal Code (NT) (which is relevantly identical to s 11(2) of the Queensland Code) or because of s 121 of the Sentencing Act itself.  That provided that where Act or an instrument of a legislative or administrative character increased the penalty for an offence the increase applied only to offences committed after the commencement of the provision effecting the increase. 

[50]  The Court of Criminal Appeal (Martin CJ, Kearney and Priestley JJ) said (1997) 97 A Crim R 60 at 66:

“The applicant submitted that ... to abolish ... remission ... amounts to an increase in punishment, in that it has the effect of increasing the period during which the applicant must be confined  ...  Similarly, he stood to be punished to a greater extent because of the changes in the law in relation to the fixing of a non-parole period ...

The maximum penalty ... for rape at the time of the offence was life imprisonment.  That was not changed by the Sentencing Act.  The sentence to imprisonment imposed did not amount to a punishment to a greater extent than was authorised by the law at the time when the impugned conduct occurred.  There had been no change in that law.  In so far as remissions were concerned, that was a matter outside the jurisdiction of the courts.  It was regarded as having been in the nature of an exercise of prerogative of mercy.  ...  As to the fixing of a non-parole period, it too is a benefit, a means by which a prisoner might be released from punishment by way of imprisonment earlier than the full term of the sentence.

We have indicated that we do not consider that s 14(2) of the Criminal Code has any application ... .  That is because ... ‘the law in force’, referred to in subs (2), is the same as ‘the law in force’ referred to in subs (1).  That law is the law constituting an offence, and that law did not change from the time of the commission of the offence to the time of the conviction.

...

The applicant does not derive any benefit from s 121.  There was no Act or instrument ... which increased the penalty for rape between the time of the offence and the conviction.  ...  The applicant is aggrieved that by the time he came to trial, and was convicted and sentenced, the law had been changed such that he did not receive the prospective benefit of the remission and the possibility of a lesser period being fixed prior to which he would not be eligible to be released upon parole.  ...  The abolition or reduction of a possible benefit having the effect of reducing the term of imprisonment imposed by way of a penalty does not amount to an increase in the penalty.”

[51]  The High Court gave special leave to appeal and allowed the appeal but on a ground different to that of present interest.  Special leave to challenge the applicability to Siganto of the Sentencing Act was expressly refused.  Gleeson CJ, Gummow, Hayne and Callinan JJ said in their joint judgment (662):

“The Court of Criminal Appeal held, on the true construction of the legislation, and upon the basis of common law principles as to the operation of statutes ... that those new provisions applied to the sentencing of the appellant.  Special leave to appeal ... was refused.  Parliament intended the new sentencing regime to apply to persons in the position of (Siganto).”

[52]  The analysis in the Court of Criminal Appeal is at odds with the reasoning in Mason which held that similar provisions did increase the punishment which could be imposed upon an offender, taking the view that no “narrow” or “technical” construction of the Code or Interpretation Act was desirable.  The judgment in Mason looked at the practical effect of the amending legislation.  The judgment in Siganto applied a more rigorous legal analysis to the provisions in question to conclude that the punishment provided by law had not increased though the result of the amendments was that a prisoner would spend longer in jail.  The refusal of special leave on this point may indicate its correctness.

[53]  It is, however, unnecessary to determine which approach is correct.  Both, it seems to me, are available responses to the need to determine the applicability of newly enacted sentencing legislation.  The approach favoured in Mason, has been consistently applied and reaffirmed.  There is no need to doubt it or question its authority.  But neither is there any need to criticise the alternative approach taken in the Northern Territory.  Mason can be accepted as authority without casting doubt on Siganto. 

[54]  Perhaps it was because Truong referred to Siganto as a basis for doubting Mason that later, in Breeze, the reasoning in Siganto was criticised. 

[55] Truong and Mason stand for independent propositions and it was not necessary for the validity of either proposition that the other be criticised.  There is no irreconcilable difference between them.  Both decisions can stand as authority for their respective propositions.  They dealt with different subject matters.  Truong was concerned with s 9 and the application of the section as amended to the exercise of sentencing discretions which the section regulates, or controls.  Mason was concerned with the application of Part 9A of the PSA which introduced the stricter regime for parole eligibility.  Different conclusions were reached about the retrospective application of the particular amendments with which each case was concerned, but the difference is accounted for by the fact that the subject matter was different, making different considerations relevant to the reasoning.

[56]  Part 9A was held not to be retrospective because its provisions effectively increased the punishment for the offences to which it applied and retrospectivity was prohibited by s 11(2) of the Code and s 20C of the Interpretation Act.  The amendments to s 9, by contrast, did not increase penalties:  the prohibitions did not apply, the changes were to a procedural statute with the usual presumption that they were retrospective; and there was nothing to displace the operation of s 204 as affected by s 14H of the Interpretation Act.

[57]  This application is concerned with amendments to s 9 not with any provision which has increased penalties for the offences committed by the applicant.  Truong is the relevant authority and should be accepted.  It was followed in Flew; and expressly endorsed in Breeze.  To accept it in no way impugns the correctness of Mason.

[58]  It is, I think, regrettable that in defending the authority of Mason the judgment in Breeze should have criticised the reasoning in Truong.  It was not necessary but because Truong is the relevant authority for this application the criticism of it must be addressed. 

[59]  The point made was that “laws relating to the matters taken into account in determining the level of sentence are ... substantive”, or arguably so.  This is to suggest that a change to s 9 is a change of substantive law.  I respectfully disagree and would follow and endorse the categorisation given in Truong:  the change is to procedure.  What the section does is to identify factors (but not all factors) to which a court must have regard when imposing a sentence.  The actual imposition of a sentence is an exercise of discretion.  Section 9 seeks to regulate the manner in which the discretion is to be exercised by an identification and weighting of factors to be taken into account and balanced out.  A change to the factors, or a reordering of their priorities is not, in my opinion, properly described as changing a substantive law.  It affects only the manner in which judges go about exercising the discretionary power of sentencing.  To add to or subtract from the list of factors to be considered, even the removal of a factor normally regarded as important as a plea of guilty, would not, in my opinion, effect an alteration to the substantive law of sentencing.

[60]  For these reasons the learned primary judge was, I think, right to conclude that he should approach the sentence to be imposed on the applicant by reference to s 9(6A) and (6B).  Truong so decided.  Mason is not relevant and the criticism of Truong was unnecessary and serves to distract attention from the relevant principle.  That principle, that an offender has no right to be sentenced according to any particular regime or manner of exercise of the sentencing discretion is well established by Rodway and Siganto. 

[61]  It remains to mention a point that when the 2008 amendments were enacted no specific provision was made about their prospectivity or retrospectivity.  There is, perhaps, nothing remarkable about that except that when the Sexual Offences (Protection of Children) Amendment Act 2003 amended s 9, s 211 was inserted into the PSA.  That section provides that:

“Section 9 as amended by the Sexual Offences (Protection of Children) Amendment Act 2003, section 28, applies to the sentencing of an offender whether the offence or conviction happened before or after the commencement of that section.”

The omission of any such provision in the 2008 amendments might be thought deliberate, and to imply an expression of parliamentary intention that the amendments were not to have retrospective effect.

[62]  The implication becomes impossible to make when one has regard to the Explanatory Notes to the Sexual Offences (Protection of Children) Amendment Bill 2002.  It was there recognised that:

“... the application of the new sentencing principles to all offences is consistent with the approach of the Queensland Court of Appeal and the High Court.

The Court of Appeal, in considering similar amendments to section 9 ... found that the provisions were procedural (R v ... Truong ...), and therefore could operate retrospectively.”

[63]  Given this understanding it is puzzling why Parliament thought it necessary to make express provision for retrospectivity in s 211.  The existence of that understanding also makes it difficult to infer that the absence of such a provision in the 2008 amendments was meant to indicate that the changes to s 9 were to apply prospectively only.

[64]  The insertion of s 211 in 2003 without a similar insertion in 2008 is too equivocal to assist in the construction of the effect of the latter amendment.

[65]  Even if the conclusion were wrong and the primary judge erred in approach, it would not follow that the sentences were necessarily wrong.  It was conceded by counsel for the applicant that imprisonment was an appropriate punishment.  A lesser term than that imposed was contended for but that is, for present purposes, irrelevant.  Once it is conceded that it was appropriate to sentence the applicant to a term of actual imprisonment it cannot matter whether or not s 9(2)(a) applied.  Assuming it did, as the applicant contends, a term of imprisonment was still appropriate.  The learned primary judge concluded that the subsection did not apply and that he was not constrained to order imprisonment only as a last resort. 

[66]  On either approach imprisonment was an appropriate penalty.  In that circumstance an error in concluding that imprisonment was appropriate without first having considered whether it was appropriate as the last resort was irrelevant.  The error did not go to the length of the term of the imprisonment imposed.  The determination of the duration of imprisonment depended on factors wholly unconnected with the question whether imprisonment should be ordered at all.  On the hypothesis, which I have not accepted, that there was an error in the approach to the imposition of punishment the error had no consequence for the actual penalty imposed.

[67]  The applicant’s principal argument was that the sentences imposed were excessive having regard to the six months’ incarceration the applicant served consequent upon the suspension of his parole.  The argument was that the loss of parole and six months’ imprisonment was a consequence of committing the present offences.  To sentence him for a further six months for the same offences was said to make the penalty excessive.

[68]  Mr Simpson also referred to two decisions of this Court which dealt with appeals against sentences imposed for distributing CE material, R v Salsone; ex parte Attorney-General [2008] QCA 220 and R v Carson [2008] QCA 268.

[69]  I do not accept the applicant’s major premise, that he was twice punished by imprisonment for the offences against s 228C and s 228D of the Criminal Code.  The loss of parole may have been initiated, in part, by his arrest on the present charges but his return to custody and detention for six months was punishment for the assault occasioning bodily harm, not distributing or possessing CE material.  The punishment imposed in October 2007 was ameliorated by the immediate grant of parole but the amelioration was conditional upon the applicant not committing further offences.  When he re-offended he was required to undergo the punishment imposed for the assault.

[70]  The applicant broke the conditions of his parole in two respects.  The second, admittedly less serious, was the commission of offences against the Drugs Misuse Act on 9 January 2008.  It cannot be assumed, as the applicant’s submission assumes, that the commission of those offences would not by themselves have led to the loss of parole.  The applicant cannot legitimately argue that the imprisonment he served in 2008 was punishment for the present offences.

[71]  Comparison with Salsone and Carson does not advance the applicant’s case.  Salsone was decided before the removal of the sentencing principle found in s 9(2)(a).  Moreover, although Salsone was about the same age as the applicant and possessed and distributed about the same quantity of CE material of a similar nature, he had no criminal history.  He was remorseful and had undertaken counselling to address his abhorrent behaviour.  His overall prospects of rehabilitation were extremely good.  Salsone was initially sentenced to three years’ probation and 200 hours community service.  On appeal he was sentenced to 15 months’ imprisonment wholly suspended with an operational period of two years.  Another feature is that by the time the Attorney’s appeal was heard Salsone had performed the whole of the substantial period of community service imposed on him.  That fact necessarily occasioned some leniency in his punishment on appeal.

[72]  By way of contrast the applicant has a prior conviction for a serious offence and committed the present offences while on parole.  This was an aggravating circumstance, as the primary judge rightly noted.

[73] Carson was a more serious case.  He was older, 31, and possessed and distributed much more substantial quantities of CE material than did either Salsone or the applicant.  The CE material in his case involved the torture of children as well as their sexual degradation.  He was punished more severely than the applicant,  sentenced to three and a half years’ imprisonment for distributing the CE material with a  parole eligibility date set 14 months after conviction.

[74]  Philippides J pointed out in Carson that s 228C is a response to the evil of corrupting and degrading children for the sexual gratification of adults, and that the production of images such as the applicant distributed “create a market for corruption and exploitation of children”.  To distribute such material is to encourage those who produce it and who procure children to be mistreated and degraded in the process.  Punishment for the offence is both a powerful denunciation of the activity and a deterrent to those whose collection and distribution of the material encourages and rewards those who make it.

[75]  There is no substance in the applicant’s complaints.  Given the nature of the offence, the applicable maximum penalty, the applicant’s criminal history and the fact that the offences were committed while on parole the reasonableness of the sentence cannot be doubted.  The applicant’s concern about double punishment was met by the primary judge adopting a term of imprisonment towards the lower end of the available range and then suspending the sentence after a quarter of the term.  In my opinion the sentences were moderate and the application for leave to appeal against sentence should be refused.

[76]  WILSON J:  I consider that the application for leave to appeal against sentence should be dismissed for the reasons expressed in paragraphs 65 - 75 of Chesterman JA's reasons for judgment.  However, I respectfully disagree with what he and Keane JA have said about the application of s 9(6A) and s 9(6B) of the Penalties and Sentences Act 1999.

[77]  The applicant committed offences against ss 228C and 228D of the Criminal Code on 12 December 2007 and 9 January 2008.  He was sentenced on 27 February 2009. In the meantime s 9(6A) and s 9(6B) were inserted into the Penalties and Sentences Act.

[78]  In R v Carlton[5] this Court considered whether subsections (6A) and (6B) applied to offences committed before their insertion into s 9.  By majority it held that the new subsections were applicable.  The President dissented.  Her Honour comprehensively reviewed relevant authorities and concluded -

"Section 9(6A) and s 9(6B) set out the principles applicable when judicial officers exercise the sentencing discretion.  The exercise of that discretion and the sentencing process may be judicial ‘instinctive synthesis’: Markarian v The Queen.  But provisions like s 9(6A) and s 9(6B) are mandatory in their terms.  Section 9(6A) specifically excludes the provision of the sentencing principles in s 9(2)(a).  Section 9(6B) states that the court ‘must’ have regard primarily to the sentencing principles set out in it.  As I have explained, I consider that s 9(6A) and s 9(6B), which mandate that certain sentencing principles apply and do not apply when judicial officers exercise the sentencing discretion in respect of those found guilty of specified offences, are substantive law.  Section 11(2) [of the Criminal Code] has application unless specifically excluded.  The legislature does not seem to have done this.  I would not find a legislative intention to make s 9(6A) and s 9(6B) retrospective unless this was clearly stated: cf R v Pora.  It follows that the sentencing judge was wrong to rely on s 9(6A) and s 9(6B) if to do so would be to punish Carlton to a ‘greater extent than was authorised’ by s 9 when Carlton committed the offences."[6]

[79]  For the reasons given by Her Honour, I consider that the new subsections, which exclude certain principles in sentencing someone for offences such as those committed by the applicant and which prescribe seven factors to which the Court must have primary regard, are substantive in nature.  By force of s 11(2) of the Criminal Code, the applicant stood to be sentenced according to the law as it stood before the new subsections were introduced.  Accordingly, I do not agree with the views of Keane and Chesterman JJA on this aspect of the present case.

[80]  Further, I consider that the effect of s 204(1) of the Penalties and Sentences Act was correctly stated by Davies and Pincus JJA in R v Mason and Saunders.[7]  Chesterman JA considers that the effect of s 204 and s 14H(1)(a) of the Acts Interpretation Act 1954 is that the law to be applied when passing sentence is to be found in the Penalties and Sentences Act as it stands at the time the sentence is imposed regardless of when the offence was committed.[8]  It is not necessary for me to consider the full ramifications of that broad approach: suffice it to say that I do not accept that it is correct in relation to what I regard as a change to the substantive law effected by the insertion of subsections (6A) and (6B).