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R v BNQ QDC 113
DISTRICT COURT OF QUEENSLAND
R v BNQ  QDC 113
Queensland District Court
12 May 2016 (delivered Ex tempore)
9, 12 May 2016
Moynihan QC DCJ
Section 9(10A) of the Penalties and Sentences Act 1992 (Qld) operates retrospectively and applies even though the offence and conviction happened before the section commenced.
CRIMINAL LAW – SENTENCING – DOMESTIC VIOLENCE OFFENCE – AGGRAVATING CIRCUMSTANCE - RETROSPECTIVITY – Where the respondent was convicted after trial of three counts of indecent treatment of a child under 16, under 12, under care – Where each offence was a “domestic violence offence” – Where amending legislation provides that the sentencing court must treat the fact that the offence was a “domestic violence offence” as an aggravating circumstance – Where amending legislation was passed after the offences were committed and after the convictions – Whether amendment has retrospective effect – Whether amendment is procedural or substantive.
Criminal Law (Domestic Violence) Amendment Act 2016 (Qld) s 5
Penalties and Sentences Act 1992 (Qld) s 9(10A)
Breeze v R (1999) 106 A Crim R 441
R v Carlton  2 Qd R 340
R v Flew  QCA 290
R v Koster  QCA 302
R v Pham (2009) 197 A Crim R 246
R v Truong  1 Qd R 663
Rodway v The Queen (1990) 169 CLR 515
V Trafford-Walker for the Applicant
C Bagley for the Respondent
ODPP for the Applicant
Michael Dwyer Solicitor for the Respondent
- The defendant was convicted on 1 April 2016 after a trial of three counts of indecent treatment of a child under the age of 16, who was under the age of 12 and under his care, between 31 December 2006 and 30 June 2009.
- The indictment states that each offence is a “domestic violence offence” as defined in section 1 of the Criminal Code.
- The defendant concedes that each offence is a “domestic violence offence”.
- The defendant was remanded in custody and his sentence was adjourned to 9 May 2016 for hearing.
- On 5 May 2016, the Criminal Law (Domestic Violence) Amendment Act 2016 (Qld), (the CLDVA), was passed.
- Section 5 of the CLDVA amends section 9 of the Penalties and Sentences Act 1992 (Qld), (the PSA), by inserting subsection (10A), which provides:
“In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonably because of the exceptional circumstances of the case.”
- The CLDVA does not contain a transitional provision that declares that section 9(10A) of the PSA is to operate retrospectively.
- The defendant contends, at his sentence hearing on 9 May 2016, that section 9(10A) of the PSA does not operate retrospectively.
- In Rodway v The Queen (1990) 169 CLR 515 at 518, the majority said:
“The rule at common law is that a statute ought not be given 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 statues 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 that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure … When they deal only with procedure, they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation, provided that they do not affect existing rights or obligations.”
- In R v Truong  1 Qd R 663, the Court of Appeal noted that section 9 of the PSA is a legislative attempt to summarise the principles upon which judicial officers are to act when sentencing offenders. The Court went on to deal with provisions that were inserted into section 9 of the PSA by the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld), which specified the primary matters to which the court must have regard when sentencing offenders. The Court found that such factors prescribed in section 9 of the PSA set out the way the judge is to approach the facts and the manner to proceed when passing sentence and, to that extent, is a procedural provision. The court held that:
“Section 9 of the PSA, both before and after the 1997 amendments, is a purely procedural provision, and that nothing in section 11 of the Code or in section 20 or 20C of the Acts Interpretation Act entitle the applicant to be sentenced according to the earlier version of section 9.”
- In Breeze v R (1999) 106 A Crim R 441 at 441, the Court of Appeal followed Truong when considering the retrospective operation of the 1997 amendment to section 9 of the PSA.
- In R v Flew  QCA 290, Justice Fraser, with whom Justice Atkinson agreed, said at paragraph 42:
“Whilst there were intervening amendments to the sentencing principles expressed in section 9 of the Act, the authorities confirm that the sentencing judge was right to apply section 9 in the form it was in at the time of sentence.”
- In R v Carlton  2 Qd R 340, the majority, constituted by Justices Chesterman and Mullins, held that section 9(6A) and (6B) of the PSA, which were inserted by the Criminal Code and Other Amendment Act 2008 (Qld), operated retrospectively. Section 9(6A) removed the principle in section 9(2)(a), that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable. Section 9(6B) required the court to give primacy to prescribed considerations when sentencing an offender in certain circumstances.
- In R v Pham (2009) 197 A Crim R 246, the majority, Justices Keane and Chesterman, followed Truong and Carlton. Justice Keane, as his Honour then was, made clear at paragraph 5:
“Section 9(6A), and section 9(6B), of the Penalties and Sentences Act are concerned, as were the provisions which they amended, including section 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.”
- Finally, in R v Koster  QCA 302, Justice Holmes, as her Honour then was, with whom the President and Justice Applegarth agreed, held that the insertion of section 9(5)(b) in the PSA in 2010 was, unlike the provisions within Truong, Carlton and Pham, not merely procedural. It has a substantive effect, making the imposition of actual imprisonment mandatory in the ordinary case. By doing so, it can be said to increase the minimum sentence within the meaning of section 180(1) of the PSA, with the result that the increase should be taken to apply only to offences committed after section 9(5)(b) commenced.
- Section 9(10A) of the PSA provides only that the court must treat the fact that it is a domestic violence offence as an aggravating factor. It is but one of the many circumstances the court treats as an aggravating or mitigating factor and takes into account and synthesises to determine a just sentence in all the circumstances.
- Section 9(10A) of the PSA lays down a principle to be applied by the court in sentencing an offender and informs the exercise of the sentencing discretion. I find it operates retrospectively and applies even though the offence and conviction happened before the section commenced.
- Published Case Name:
R v BNQ
- Shortened Case Name:
R v BNQ
 QDC 113
12 May 2016