R v Hardy[2009] QDC 413

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE IRWIN

Indictment No 1624 of 2009

DIS-00003735/09(5)

THE QUEEN

v.

BRADLEY ERNEST HARDY

CAIRNS 

DATE 16/12/2009

SENTENCE

HIS HONOUR:  The Crown has submitted in this case that in sentencing Mr Hardy, who on 10 December 2009 was found guilty by a jury of one count of failing to appear contrary to section 30, subsection (1), paragraph (a) of the Australian Crime Commission Act 2002, I should activate a suspended period of imprisonment that was imposed upon him on the 3rd of October 2005, and which has subsequently been extended as a result of a breach committed within the original operational period.

The basis of this submission is that the offence on which the offender has been convicted before me was committed within the extended operational period, and therefore involved another breach of the order.

The original suspended sentence was imposed by a Magistrates Court but it is accepted by both parties, in accordance with the law, that I have jurisdiction to deal with any breach arising out of that sentence, unless I consider it is in the interests of justice for the offender to be dealt with by the Magistrates Court.  I have not come to that position.

My response to this argument from the Crown will be relevant to my ultimate sentence of the defendant.  Logically, I should proceed to sentence him for the offence for which he was convicted by the jury, and then, if I have power to do so, consider what approach I should take as a result of the breach of the suspended sentence during the operational period.

The current issue that arises for consideration is as to whether I have power to activate the suspended period of imprisonment in circumstances which I will outline in a moment.  The submission by Mr Weston on behalf of his client is that I have no such power.

With the assistance of the Crown outline, I commence by setting out the chronology of this matter.  On the 3rd of October 2005, as I have mentioned, the defendant was convicted and sentenced by the Maroochydore Magistrates Court for offences of entering a dwelling with intent by break, stealing and entering premises with intent by break.  These offences were committed between the 25th of December 1994 and the 28th of December 1994.

Mr Hardy was sentenced to six months' imprisonment.  Pursuant to section 144 of the Penalties and Sentences Act that sentence was wholly suspended for a period of 18 months.  The operational period of the suspended sentence concluded on 2 April 2007.

On 12 February 2008 he was convicted and sentenced by the Maroochydore Magistrates Court for one offence each of possessing dangerous drugs, and possessing utensils or pipes.  Those offences were committed on 31 January 2007, within the operational period.  It is accepted that they are relatively minor examples of those type of offences.

Mr Hardy was sentenced to a fine for the subsequent offences, but since they were committed during the operational period of the suspended sentence imposed for the original offences, the Court, being required by section 146 to deal with the offender under section 147 for the breach of the suspended sentence, ordered that he be subject to a further stated operational period of six months for the suspended sentence of imprisonment.

The offence for which the defendant was convicted by a jury before me was committed on 17 April 2008, less than three months into the extended operational period which had been imposed on 12 February 2008.  I note, for completeness, that that extended operational period has now expired.

The prosecution accepts that the present offence for which I am sentencing Mr Hardy was committed before the enactment of the Criminal Code and Other Acts Amendment Act 2008, which, to my recollection, came into force on 1 December 2008.

As is conceded by the prosecution pursuant to the decisions of the Court of Appeal in The Queen v Muller [2005] QCA 147 and The Queen v Lam [2006] QCA 560, before the passing of the amending Act, it was not possible for the Court to deal with an offender such as Mr Hardy under section 146 for a suspended sentence of imprisonment if the breaching offence was committed during a further stated operational period but not within the original operational period.  The amending Act was passed after the commission of the present offence for which I am sentencing Mr Hardy but before he was convicted.

In these circumstances, the prosecution submits that I have the power to activate the suspended sentence on the basis of the amending Act.  The prosecution accepts there is no binding authority on whether the amendments to sections 146 and 147 operate retrospectively such that the Court is required to deal with the present offender under the amended version of section 146.  Fairly, I am referred to the decision of Judge Dearden in The Queen v Hay [2009] QDC 333 which it accepts is a case that is on all fours with the present case.  In that case, his Honour held that the amendments were not simply procedural but affected the offender's substantive rights.

In such circumstances, his Honour held that the amendment was presumed not to have retrospective effect unless the intention for it appears with reasonable certainty, citing in support the decision of Atkinson J in The Queen v GT [2005] QCA 478, and a construction of the amendments that avoids retrospective application of penal consequences should be preferred.  His Honour held there was no clear intention in the amending Act for the amendments to be applied retrospectively.  He therefore held that the offender must be dealt with in accordance with the law prevailing at the time, a further extended operational period was imposed, following The Queen v Muller.

However, 22 days after his Honour's decision, the Court of Appeal delivered its decision in The Queen v Carlton [2009] QCA 241.  In that case, Chesterman JA, with whom Mullins J agreed, held that it should not necessarily be inferred that the amending Act did not have retrospective effect.  The Court in that case, dealing with separate amendments effected by the amending Act which involved amendment to section 9 of the Penalties and Sentences Act so as to make the last resort principle inapplicable in sentencing for offences involving child exploitation material, held that those amendments to sentencing law had retrospective effect and applied to sentencing for offences committed before the amendments were introduced.  The prosecution submits that I should apply the decision in that case to the different amendments made by the same Act with which I am currently concerned.

Mr Hanna, the Crown Prosecutor, reminds me that in Muller, Jerrard JA held that construing section 146(1) to include the operational period of an order made under section 144 as extended by an order made under section 147 would be a construction best achieving the purpose of the Act.  Although I note that that is not the law as Jerrard JA interpreted it at that time.  Reference is also made to the explanatory notes to the amending Act that state, "The amendments to section 146, 146A and 147 clarify that a Court may deal with an offender who re-offends during an extended operational period of a suspended sentence."

On the basis of this, the prosecution contends that it has always been consistent with the purpose of part 8 of the Penalties and Sentences Act, that offenders are to be dealt with under section 147 when an offence is committed during an extended operational period.  The amendment merely clarifies that that is how the provisions are intended to operate.  It is contended that the clear intention of the amending Act is to allow Courts to give real effect to orders that have been made under section 147(1)(a), in the past so that statements that have been made by judicial officers when sentencing defendants about the consequences of committing another offence during an extended operational period are not just hollow gestures, and that therefore such sentences will take effect as they were meant to and as the defendant would have understood the position to be.

It is submitted that this means that the amendments operate retrospectively in allowing the Court to deal with a breach of a further operational period, even though the law at the time of the breach as stated in Muller's case didn't provide for that to occur.  It is submitted that a retrospective effect of the amendments to section 146, 146A and 147 is consistent with the purpose of the amendments, consistent with the purpose of part 8 and consistent with the construction given in The Queen v Carlton to other amendments introduced by the amending Act.

It is therefore submitted that if I accept this construction, the consequence would be that I am required to proceed under the present version of 146(1) to deal with the offender under section 147 for the breach of the further stated operational period imposed on him on the 12th of February 2008 unless, as I have already indicated, I considered that it is in the interests of justice for the offender to be dealt with by the Magistrates Court.

In response, Mr Weston on behalf of Mr Hardy submits that the amending Act is not retrospective, there is no binding authority on me that establishes this, and that there is nothing on the face of the amending legislation which points to an intention that it be retrospective. 

He submits that the amendments to sections 146 to 148 are substantive and not procedural, and makes the point that if it was intended that they be retrospective, there must be a clear legislative statement to this effect.

He submits that Carlton is confined to its own facts because it deals with procedural matters under section 9 of the Penalties and Sentences Act, which are matters which merely purport to establish guidelines and criteria by which the Court should exercise its sentencing discretion by having regard to those guidelines and criteria in determining the appropriate sentence.

He submits that it is clear from the Judgment of at least the majority in Carlton's case that their decision was based on the fact that section 9 was a procedural section, whereas in contrast he submits that the sections with which I am concerned are substantive in nature because they require the Court, in determining sentence, to have regard to the matters therein outlined in determining whether a particular punishment should be enlivened.

He concedes that while I am not sentencing afresh as the Court of Appeal has clearly decided in The Queen v Skinner, the question of whether to activate whole or part of the sentence involves a significant infringement of the liberty of the defendant and therefore the provisions relate to substantive matters.

He submits in particular that rather than simply involving a re-arrangement of principles and guidelines, the amendments empower the Court to impose a punishment that has not already been imposed.  As he submits, under the statute as it was at the time that the operational period was extended and the time that the present offence was committed, Mr Hardy could not be re-sentenced whatever the legislative intent may have been which was not reflected in the legislation.

He submits that he has now been placed in jeopardy of having the sentence activated which was a situation which did not exist when he breached the suspended sentence in 2008.  I agree with Mr Weston that although the Court of Appeal in Carlton dealt with the issue of whether provisions in the same amending Act were retrospective in nature, it proceeded on the basis that those provisions related to the procedure pertinent to sentencing.

For example, in the Judgment of Chesterman JA, with reference to an earlier decision of the Court of Appeal in The Queen v Truong [2000] 1 QR 663, his Honour said at paragraph 59, "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."

At paragraph 88 the point is made clearly when discussing the Judgment of the Court of Appeal in the case of Breeze [1999] 106 ACR 441.  In relation to this his Honour said, "The point made was that laws relating to the substantive matters taken into account in determining the level of sentence are... substantive or arguably so.  This is to suggest that a change to section 9 is a change of substantive law.

I respectfully disagree and would follow and endorse the categorisation given in Truong.  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 weighing of factors to be taken into account and balanced.

A change to the factors or a re-ordering of their priorities is not, in my opinion, properly described as changing a substantive law.  It affects only the manner in which the Judge goes 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, affect an alteration to the substantive law of sentencing."

On the other hand, so far as the sections in the amending Act that I am now considering are concerned, I consider that they go beyond the manner in which Judges go about exercising the discretionary power of sentencing and to adopt what was said by Judge Dearden at paragraph 20 in Hay: "...the amendment to the Penalties and Sentences Act section 147 operative as of 1 December 2008 (and the associated amendments to earlier sections) was not simply a procedural amendment.  It clearly affected substantive rights, that is whether or not a defendant is liable to serve all or some portion of a prison sentence otherwise subject to suspension.  It is clearly amending legislation which affects an existing right or obligation."

I also adopt what his Honour then said at paragraph 21 as follows, "Consequently as a substantive law amendment, rather than a procedural law amendment, it is presumed not to have a retrospective effect, unless the intention for it so to apply appears with reasonable certainty".  It is that proposition that is supported by reference to the judgment of Atkinson J in The Queen v GT.

I also agree with his Honour that the amendment Act does not implicitly or explicitly seek to impose a retrospective operation with respect to the amended definition of "subsequent offence" in section 147(5) of the Penalties and Sentences Act.

I also conclude that there is no clear intention for the amendment to be applied retrospectively.  Any ambiguity, especially given the penal consequences to which the defendant is exposed, should be construed to favour non-retrospectivity,  again, with reference to the judgment of Atkinson J at paragraph 28 in The Queen v GT.

Like Judge Dearden, I do not consider there is any ambiguity, but if any ambiguity arguably exists, the non-retrospective operation of the legislation is to be preferred

Consequently, I find that Mr Hardy is not liable to be dealt with for breach of the suspended sentence imposed originally on the 3rd of October 2005, as extended by the Maroochydore Magistrates Court on the 12th of February 2008, by reason of the commission of the offence by him on 17 April 2008, on which he was convicted by a jury on 10 December 2009.  On that basis I will proceed to sentence Mr Hardy for the offence of which he was convicted before me.