Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

R v DNR[2016] QDC 240

DISTRICT COURT OF QUEENSLAND

CITATION:

R v DNR [2016] QDC 240

PARTIES:

R

(Crown)

v

DNR

(defendant)

FILE NO:

140 of 2015

DIVISION:

Criminal

PROCEEDING:

Ruling/Sentence

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

23 September 2016 (ruling)

27 September 2016 (reasons)

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

19 and 23 September 2016

JUDGE:

Long SC DCJ

ORDER:

Section 240 of the Penalties and Sentences Act 1992 does

not have effect to make s 9(4)(b) of the Penalties and

Sentences Act 1992 (in its current form) applicable to the sentencing of this offender.

CATCHWORDS:

STATUTUES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF ACTS – RETROSPECTIVE OPERATION – Where the defendant was sentenced in respect of two offences of indecent treatment of a girl under 14 years, respectively committed in 1984 and 1987 – Where amendments were made to the Penalties and Sentences Act 1992, by the enactment of the Youth Justice and Other Legislation Amendment Act (No. 1) 2016, which took effect from 1 July 2016 – Where s 9(4)(b) of the Penalties and Sentences Act 1992 (in its current form) requires the imposition of an actual custodian sentence, unless exceptional circumstances are found – Whether, as contended, s 9(4)(b) has a retrospective operation by virtue of the introduction of s 240 of the Penalties and Sentences Act 1992

LEGISLATION:

Acts Interpretation Act 1954 ss 14(B)(1), 14H(2), 20C, 32(F)(2)

Criminal Code (Qld) s 11(2)

Criminal Code and Other Acts Amendment Act 2008

Penalties and Sentences Act 1992 ss 9, 9(4), 9(4)(b), 9(5)(b), 61, 180(1), 211 and 240

Sexual Offences (Protection of Children) Amendment Act 2003

Youth Justice and Other Legislation Amendment Bill 2015

Youth Justice and Other Legislation Amendment Act (No. 1) 2016

Youth Justice and Other Legislation Amendment Act 2014

CASES:

Plaintiff S157/2000 v Commonwealth of Australia (2003) 211 CLR 476

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

R v Carlton [2010] 2 Qd R 340

R v H (1993) 66 A Crim R 505

R v Koster [2012] QCA 302

R v Pham [1996] QCA 3

R v Wruck [2014] QCA 39

Rodway v R (1990) 169 CLR 515

COUNSEL:

A Q Stark for the Crown

S G Bain for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Qld) for the Crown

Anderson Fredericks Turner for the defendant

  1. [1]
    On 23 September 2016 and for the purpose of sentencing this defendant in relation to two offences of indecent treatment of a girl under 14 years and which were respectively committed in 1984 and between May 1986 and 16 April 1987, it was ruled that:

“Section 240 of the Penalties and Sentences Act 1992 does not have effect to make s 9(4)(b) of the Penalties and Sentences Act 1992 (in its current form) applicable to the sentencing of this offender.” 

  1. [2]
    What follows are the reasons for that ruling and attached as a schedule and in order to provide further context, is a copy of the sentencing remarks and orders made in sentencing this offender.
  1. [3]
    In the present case it was contended, by the prosecution, that in the light of recent amendments made to the Penalties and Sentences Act 1992 (“PSA”), by the Youth Justice and Other Legislation Amendment Act (No. 1) 2016 (“the 2016 Amendment Act”) and which took effect from 1 July 2016, the provision which is now s 9(4)(b) of the PSA and which would require the imposition of an actual custodial sentence, unless exceptional circumstances were found, is effectively given retrospective operation and is applicable to this case, by the introduction of s 240 of the PSA, which is in the following terms:

240 Sentencing guidelines

Section 9, as amended by the Youth Justice and Other Legislation Amendment Act (No. 1) 2016, applies to the sentencing of an offender after the commencement whether the offence or conviction happened before or after the commencement.”

  1. [4]
    That issue arose in circumstances where and consistently with the decisions including R v Wruck [2014] QCA 39, which was referred to the Court by the prosecution as one of the comparable or guiding decisions relied upon, it would otherwise be necessary to proceed upon the basis that the sentencing discretion to be exercised, in this case, is not constrained by any requirement or informed by any recognised sentencing practice that there be an actual term of imprisonment unless there are exceptional circumstances. 
  1. [5]
    As was noted in Wruck at [15], such a constraint was first introduced, legislatively in 2010 as s 9(5)(b) of the PSA and now appears as s 9(4)(b) of that Act.  Also, the review of prior authority that is conducted by the Court of Appeal, determined that no such sentencing practice “of requiring the establishment of exceptional circumstances as a precondition to a noncustodial sentence” was recognised prior to the decision in R v H (1993) 66 A Crim R 505 and was later expressed in definitive terms in R v Pham [1996] QCA 3 at p 3.  And it was further noted that the emergence of the recognition of such a sentencing practice had no application, in any sense, of retrospective effect or otherwise, to offending that, in that case, had occurred prior to those decisions and in 1982 and 1983.
  1. [6]
    Further and in an earlier decision, in R v Koster [2012] QCA 302, it had been determined that the same legislative provision, then in s 9(5)(b), was inapplicable to sentencing an offender, after the introduction of that legislation, for offences that occurred before that introduction and in that case, in 1983.  That was concluded on the following basis:

“[38] The insertion of s 9(5)(b) in the Penalties and Sentences Act in 2010 was not accompanied by any provision making it retrospective. (Nor did the explanatory notes to the Penalties and Sentences (Sentencing Advisory Council) Amendment Bill 2010 contain any suggestion that the section was intended to have retrospective effect.) It is clear that s 9(5)(b), unlike the provisions within Truong, Carlton and Pham, is 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 (by logic similar to that in Pierpont) to increase the minimum sentence within the meaning of s 180(1) of the Penalties and Sentences Act; with the result that the increase should be taken to apply only to offences committed after s 9(5)(b) commenced. Section 204 of the Penalties and Sentences Act has no bearing; it must yield to s 180 as the more specific provision. Similarly, taking the broad view of s 11(2) of the Code adopted in Mason & Saunders and endorsed in Carlton, Pham and Olsen v Sims, that provision should be regarded as operating to prevent the application of s 9(5)(b) to offences committed before it commenced.”

  1. [7]
    It may also be noted that reference to s 11(2) of the Criminal Code (“the Code”), s 180(1) of the PSA and 20C of the Acts Interpretation Act 1954 and which commonly embody aspects of the principle applied in Koster, were also made in Wruck and in the context of the review of interstate authority and reference to interstate legislative provisions, having similar effect and in support of a similar approach to the retrospective application of later developed sentencing practices. 
  1. [8]
    However, the prosecution submission was that s 240 of the PSA now has effect to make all of s 9, as it appears after and including the amendments that took effect on 1 July 2016, apply both prospectively and retrospectively.  Alternatively, in respect of any contention that s 240 should be read as referable only to the extent that s 9 was amended by the 2016 Amending Act, it is contended that by that Act, s 9(4) was amended, by being omitted and then replaced by the following:

“(4)  Also, in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years—

  1. (a)
    the principles mentioned in subsection (2)(a) do not apply; and
  1. (b)
    the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.”
  1. [9]
    It may be observed that prior to this, subsection (4) had appeared as follows:

“(4)  In sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years, the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.”

It is therefore apparent that whilst achieved by way of replacement of the subsection, with the addition of punctuation, including by way of sub-paragraphing, the substance of the amendment to the provision was only to add the words “the principles mentioned in subsection (2)(a) do not apply; and”, after the word “years”.

  1. [10]
    By the same amending section, s 61 of the 2016 Amendment Act, the pre-existing provisions of s 9(2)(a) to (q) were renumbered, as (2)(b) to (r) and the following inserted as s 9(2)(a):

“(2) In sentencing an offender, a court must have regard to –

(a) principles that –

  1. (i)
    a sentence of imprisonment should only be imposed as a last resort; and
  1. (ii)
    a sentence that allows the offender to stay in the community is preferable; and…”

That is, those were added as sentencing principles to which “a court must have regard”. Otherwise, the only other amendments made to s 9 of the PSA, by the 2016 Amendment Act, were to make further exceptions to the application of the principles inserted as s 9(2)(a) and to correct other references to the renumbered subparagraphs of s 9(2).  Further, the effect of this included reinstatement of the provisions which had appeared as s 9(2)(a) and (5) of the PSA, until 28 March 2014 and when the Youth Justice and Other Legislation Amendment Act 2014 took effect, to omit s 9(2)(a), renumber the remaining provisions and other provisions, so that s 9(4) then appeared in the form that was amended by the 2016 Amendment Act and in terms of what had previously appeared as s 9(5)(b). 

  1. [11]
    Further and notwithstanding that the principle of retrospective application of enactments that involve only matters of procedure, rather than affecting existing rights or obligations, is well-recognised, as was noted in Rodway v R (1990) 169 CLR 515, at 518-9, the distinction may not always be clear. And it is open to the legislature to make that clear or otherwise to express an intention that a substantive provision is to have retrospective effect.
  1. [12]
    However and as is apparent from the decision in Koster, no such intention was conveyed when the provision, which is now s 9(4)(b), was first introduced and in the context of the fundamental principle embodied in provisions such as s 11(2) of the Code and s 180(1) of the PSA, in particular, is not achieved by more generalised transitional provisions and which may otherwise be applicable to provisions that do not engage the principle embodied in s 11(2) of the Code and s 180(1) of the PSA.
  1. [13]
    It is to be noted that the decision in Koster, particularly after having regard to the earlier decisions to which reference is made, proceeded upon the expressed basis of regarding s 180(1) of the PSA as the more specific provision than the general transitional provision in s 204 of that Act.  And proceeded similarly in the application of s 11(2) of the Code, which was otherwise recognised as stating a fundamental principle of wide, rather than narrow, application. And it might be added, a long-standing one which would require a clear expression of statutory intention to override.[1]
  1. [14]
    However and here, the prosecution submission was that s 240 is the more specific provision, in that it is specifically directed at the operation of s 9 of the PSA (or, on the alternative proposition, at the amendments made to that section by the 2016 Amending Act).  It was contended that “it is difficult to envisage a more specific statement of retrospective intent than to apply it to a stated section of an Act.”[2]
  1. [15]
    The first difficulty with this contention is that the additional words: “as amended by the Youth Justice and Other Legislation Amendment Act (No. 1) 2016” also require consideration and it is also clear that if s 11(2) or s 180(1) do relevantly have effect, reference to previous authority in respect of such application to the provisions of s 9 of the PSA indicates that that will only be in respect of a particular part or parts of that section, rather than the whole section.   Here the specific issue is in respect of the operation only of s 9(4)(b) and the apparent absence of any expressed intention to change the effectively established position in respect of the application of that provision. 
  1. [16]
    Secondly and as has already been noted, there may be some ambiguity that arises, as to the prosecution contention that s 240 is directed at the operation of the entirety of s 9, rather than just to the extent to which it was amended by the 2016 Amendment Act.
  1. [17]
    Thirdly and most critically, the prosecution submission is made in the context of reliance on a misconceived and incorrect contention that s 240 may be seen to be couched in “effectively identical” terms to s 211 of the PSA and that the transitional provision in s 211 was upheld as effecting retrospective effect to the “same principle that sexual offences against children required actual imprisonment in the absence of exceptional circumstances then enacted in 9(5) and 9(6) of the PSA”,[3] in R v Carlton (2010) 2 Qd R 340.   However, that decision, as was subsequently conceded by the prosecution, was only concerned with the operation of s 9(6A) and s 9(6B), as those provisions were introduced by the Criminal Code and Other Acts Amendment Act 2008, whereas s 211 relates to the amendments made by the Sexual Offences (Protection of Children) Amendment Act 2003 and which introduced new subsections (5) and (6) and which were, as is noted in Carlton, directed at excluding the operation of s 9(2)(a) to the sentencing of an offender for any offence of a sexual nature committed in relation to a child under 16 years and stipulating considerations to which the Court must have primary regard in sentencing such an offender.  Further, the evident purpose of the latter amendments introduced as subsections (6A) and (6B) was to achieve similar effect in respect of dealing with offences against sections 228A, 228B and 228D of the Code.
  1. [18]
    Although this fundamental misunderstanding was central to the basis upon which the written submissions proceeded for the prosecution and notwithstanding the subsequent concession as to the incorrectness of it, nevertheless the submission was maintained as to the retrospective effect of s 240.
  1. [19]
    The reference made to s 211 may, however, be instructive, in that it provides some further context to understanding that s 240 is not directed at the entire operation of s 9, as opposed to the particular amendments to which it is referable, or at least that the language admits of some ambiguity in this regard. That is because and in considering what meaning the legislature is taken to have intended by the words that were used in s 240, it is necessary to consider not just the content of the provision but also the purpose of it and the consequences of particular construction and to do so in context.[4] In this instance, the necessary context is provided by both the Act introducing s 240 and by the Act to which it was introduced and in which it became operational.

Turning to the terms of s 240 of the PSA, pursuant to s 32(F)(2) of the Acts Interpretation Act 1954, “the commencement” is to be read as a reference to the commencement of that section, on 1 July 2016.   However, it may be noted that:

  1. (a)
    having regard to s 14H(2) of the Acts Interpretation Act, it would have been unnecessary to include the words “as amended by the Youth Justice and Other Legislation Amendment Act (No. 1) 2016,” in order to include a provision that would have application to the entirety of s 9, in its amended form;
  1. (b)
    although and pursuant to s 4 of the Acts Interpretation Act, the application of s 14H(2) may be wholly or partly displaced by a contrary intention appearing in any act, the contextual considerations in both the PSA and the 2016 Amending Act, also point against a conclusion of any intention to clarify or make clear any such intended displacement or to avoid any such implication. Notwithstanding that the wording of s 240 is expressed less clearly to this effect, than in the immediately preceding transitional provisions, in sections 235 to 239, it is apparent that each of them is concerned with clarification as to the intended operation of the amendments that were affected by specific legislative changes to the PSA;
  1. (c)
    further, each of these provisions stands in contrast to s 234, which was introduced as the transitional provision for the 2014 Amending Act, to which previous reference has been made, as effecting the changes reversed by the 2016 Amending Act and also s 204, which was specifically considered in Koster.  It can be noted that each of these provisions is expressed in terms of general application of the Act to all offences, whether committed before or after the commencement of those sections; and
  1. (d)
    the approach in Carlton, including in relation to the  similarly worded provision in s 211 of the PSA, was to consideration of the effect of the amendments made to s 9, rather than to any effect of the transitional provision on any pre-existent provisions in s 9.[5] 
  1. [20]
    Most critically and as otherwise eventually recognised in the prosecution submissions, the decision in Koster was that the provision which now appears as s 9(4)(b), does engage s 11(2) of the Code and s 180(1) of the PSA and the specific principle preventing retrospective application of it. But it is correct that this position was determined in the recognised absence of any transitional provision expressing any legislative intention that the provision is to have retrospective effect.[6] Despite this and what has been noted so far, the contention is that this has now been achieved through the introduction of s 240 and the amendments made by the 2016 Amendment Act.
  1. [21]
    It might be thought surprising that a provision like s 240, in the context of which it was introduced, was intended to have such an effect, in changing the law which has been settled since the decision in Koster and similarly applied to related considerations in Wruck and further, that this would occur so apparently incidentally and without direct acknowledgement. Whilst a legislative power to do so may exist and quite apart from conflict with other statutory provisions, such as s 180(1) of the PSA and what may be observed to be the longstanding provision of fundamental import in s 11(2) of the Code, general words or implications to be drawn from them, will usually not suffice and it is well recognised that:

“…courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language.”[7]

  1. [22]
    Such considerations are against a conclusion that this is what is intended by the terms of s 240, particularly in the sense of the primary prosecution submission. However, there remains the alternative issue that in this instance, s 9(4) was the subject of amendment. However, the focus must be on s 9(4)(b) and in a substantial, rather than technical or formalistic sense, this provision was not amended or altered.
  1. [23]
    In this context and having regard to the technical or formalistic sense in which the provision which is s 9(4)(b) of the PSA is alternatively contended to be caught by s 240,  it might be further concluded that a sense of ambiguity arises but in any event, s 14(B)(1) of the Acts Interpretation Act 1954 would allow reference to extrinsic material to confirm the interpretation otherwise conveyed by the ordinary meaning of the provision or to avoid any manifestly absurd or unreasonable result from any such ordinary meaning. 
  1. [24]
    Here it is sufficient to make reference to the Explanatory Notes for the Youth Justice and Other Legislation Amendment Bill 2015, to discern confirmation that s 240 was intended to have operation and effect, only in respect of the amendment by way of reintroduction of s 9(2)(a) and the expressed exclusions as to the operation of the principles expressed in s 9(2)(a). That is, in respect of the extent to which s 9 was actually amended, in the sense of being changed or altered.
  1. [25]
    In the first instance, the notation in respect of the policy objectives of the Bill, as far as amendment of the PSA was intended, was to:[8]

“7. Reinstate into the Penalties and Sentences Act 1992 (the PS Act) the principle that imprisonment is a sentence of last resort and a sentence that allows the offender to stay in the community is preferable.”

 Secondly and under the heading; “Achievement of policy objectives”, it is stated:[9]

 “The Bill also gives effect to the Government’s election commitment to give statutory recognition in the PS Act to the common law sentencing principle that imprisonment is a sentence of last resort for all offenders except those convicted of certain offences in recognition of the serious nature of the offending and need for community protection.”

Finally and specifically in respect of the proposed introduction of s 240, it was stated:[10]

“Clause 65 of the Bill provides for the transitional arrangements for amendments to the PS Act. New section 240 clarifies that amendments to section 9 apply to the sentencing of an offender after commencement, irrespective of whether the offence or conviction happened before or after the commencement.

The amendment means that the amendments may have limited retrospective application. For example, an offender may enter a plea of guilty prior to commencement but the sentencing hearing may be adjourned pending preparation of a medical report. Upon commencement of the amendments the offender will be sentenced in accordance with the sentencing practice and procedure applying at the time of sentence.

While retrospectivity is ordinarily a breach of fundamental legislative principles, this approach is justified on the basis that it is consistent with the common law, it is limited in application and operates to the benefit of offender.”

  1. [26]
    Accordingly and in this case, the Court proceeded upon the basis that the exercise of sentencing discretion is unfettered by any requirement or informed by any expectation of actual incarceration, unless exceptional circumstances are found.

Schedule

Copy of sentencing remarks: R v DNR

  1. [1]
    HIS HONOUR: DNR, on 1 June 2016 you pleaded guilty to two offences of indecent treatment of a girl under 14 years.
  1. [2]
    In each instance, that girl was, in effect, your step-daughter, as you had met her mother and moved into their house in Caboolture in October 1982. The first offence occurred in 1984, when the complainant was aged 5 to 6 years, and the second offence some time in the period from May 1986 to 16 April 1987 and therefore, when the complainant was aged 7 or 8 years. At the time of your offending, you were aged 31 to 36 and you are now 65 years old.
  1. [3]
    The first offence occurred in a room that the complainant shared with her sister and when you came to her single bed and woke her as you were getting into that bed with her. It was early morning and her mother had already gone to work. You lay on your side facing her, took her right hand and put it on your erect penis. You told her she could touch it but she immediately moved her hand away and soon after this, you left and the complainant prepared herself for school.
  1. [4]
    The second offence occurred after a shift of residence in May 1986 and some time before the complainant turned 9. Again and after her mother had gone to work, you came to the complainant’s room, entered her bed, kissed her with an open mouth and placed your tongue in her mouth. You also rubbed your erect penis against her leg and took her hand and moved it towards your penis and asked her to play with it but she did not make contact with it.
  1. [5]
    Your offending has had an emotional impact on your victim, which she has carried into her adult life and ultimately has led, it may be inferred, to her more recent complaint in these proceedings.
  1. [6]
    In that context, your guilty pleas to the only allegations ultimately pursued, should be taken into account and given some significant weight in dealing with you. There is, by those pleas, evident cooperation with the administration of justice, particularly in avoiding any necessity for the complainant to have to give evidence about these matters.
  1. [7]
    Although the Court was informed that there are entries, for instance, of driving under the influence of liquor in the 1970s and in 2005, for an offence of taking a protected animal, you may effectively be dealt with as having no criminal history and particularly since this offending occurred, in the sense that there has been no relevant re-offending in that period of over 30 years.
  1. [8]
    It is explained that after leaving school at 13 years, you pursued a career as a panel beater and spray painter but now live a solitary life in retirement at Caloundra. In your present circumstances, you are managing a number of significant health problems. As is confirmed in the report of Dr Greenwood (Exhibit 2), you are maintained on an extensive regimen of medication, including warfarin, as a consequence of heart disease and surgery for valve replacements in 2010. This requires regular and up to weekly monitoring by way of blood tests and adjustment of dosage, as is indicated by that oversight.
  1. [9]
    In conjunction with this treatment, it is observed that you are required to maintain a constant and specific diet and Dr Greenwood observes that, as a result of the anti-coagulation, you are at a high risk of severe bleeding in the event of an injury and further, that if you do not receive the correct dose of warfarin, you are at a risk of stroke. You also use OxyContin daily, for chronic back pain relief.
  1. [10]
    The Court was also informed that you underwent bowel surgery in early 2015 and that, consequently to some more recent heavy bleeding, you are on a waiting list for investigation by at least colonoscopy and any necessary treatment by way of surgery in your bowel.
  1. [11]
    It may be noted that by contrast to the higher maximum penalties that now apply in relation to similar offending, it is common ground that the maximum penalty that applies to each of your offences is 7 years imprisonment. However, it may be also recognised that you now stand to be sentenced in circumstances where there is, in the community, a more acute awareness and understanding of both the prevalence and impact on victims, of this type of offending against vulnerable children.
  1. [12]
    Clearly and notwithstanding the fact that your offending was not protracted in nature, nor would it appear particularly persistent, it must be necessarily regarded as serious.

This is particularly because of the corruptive implication of your abuse, of your position in this household, in selfishly seeking sexual gratification with such a young and vulnerable child.  Also, there is no isolated aberration involved as the behaviour was repeated in the second instance of offending. 

  1. [13]
    It can be noted that, subject to the issue upon which I have ruled this morning, the decision in the R v Wruck [2014] QCA 39 was referred to the Court by the Prosecution as a comparable or guiding decision.  And it may be noted that an effect of that decision is that the exercise of sentencing discretion, in your case, is to be exercised in circumstances where it is not constrained by any requirement or informed by any recognised sentencing practice that there be an actual term of imprisonment, unless there are exceptional circumstances. And as I indicated earlier, I have ruled that s 240 of the Penalties and Sentences Act does not have the effect to make such a constraint, as expressed in s 9(4)(b) of the Penalties and Sentences Act, applicable to your situation.  As I noted earlier, I will later publish some more detailed reasons for that ruling. 
  1. [14]
    There is, therefore, no need to grapple with the distinctions that were sought to be made with those cases that were relied upon for you. However, it can be noted that any such assessment as to whether or not there are exceptional circumstances does not necessarily depend upon the presence or absence of any particular circumstance or group of circumstances but rather, an assessment to be made in individual cases upon the consideration of all of the relevant circumstances and as part of the exercise of sentencing discretion in an individual case.
  1. [15]
    Here and having regard to the relatively low level of your offending, some regard may be had to the observations in Wruck at [17] to [18] and in reference to the approaches taken in the cases of Harmer and Meloury.  For you, particular emphasis was placed upon your present circumstances and the passage of time since your offending without any repetition of similar or indeed, any relevant re-offending.  And it was contended that it could be concluded that you had rehabilitated in the interim and in the delay or passage of time since your offending and that was of particular relevance, in accordance with the principles that are discussed in the R v Illin [2014] QCA 285 at [19] – [20].  However, it must be observed that, unlike the position noted in respect of Harmer and Meloury, that submission is not based on any material in respect of any interventive action or treatment or any significant developments, or attention to the circumstances in which your life has developed since this offending, apart from the particular reliance on your current circumstances.  And it may be noted that it was in that context that an alternative submission or concession was made as to the possibility of the Court considering and making a probation order for instance, with a condition as to completion of a sex offender treatment program. 
  1. [16]
    Otherwise, particular emphasis was placed on the contention that, in your current circumstances and in the context of the absence of relevant history of reoffending in the meantime, that, as should be concluded, you do not present any appreciable risk to the community by way of reoffending and in that sense, are rehabilitated. That submission continued that therefore, the objective of protection of the community does not particularly need to be reflected in your sentence and it may be concluded that as well, personal deterrence is not a particular objective in sentencing you. Those submissions or conclusions should be accepted and accordingly, I am not satisfied that there is any need or useful purpose to be achieved in offering or making a probation order.
  1. [17]
    It can also be observed that had there been necessity to consider the issue, the circumstances of this case may well have led to a conclusion that there were exceptional circumstances. In that regard and in any event, in dealing with you, particular regard is necessary to the principles discussed in Illin and, most particularly, the endorsement of the wider or more general observation of Muir JA, made earlier in the R v Van Der Zyden (2012) 2 Qd R 568 at [102], in the following terms at paragraph [20] in Illin

“passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the …sentence; at times that can require what might otherwise be a quite undue degree of leniency being extended…”

  1. [18]
    With such considerations in mind, it nevertheless remains to achieve a necessary reflection of appropriate punishment and denunciation of your offending and also, appropriate regard to the need for general deterrence to be reflected in the sentence to be imposed. Accordingly and in the circumstances – now, let me just clarify, Mr Stark, by way of reminder – it is Counts 2 and 3, is it not?
  1. [19]
    MR STARK: Yes. Yes, your Honour.
  1. [20]
    HIS HONOUR: Right. In relation to Count 2, you are sentenced to 6 months imprisonment. In relation to Count 3, you are sentenced to 9 months imprisonment. I order that the whole of those terms of imprisonment be suspended forthwith. The operational period under the order is 2 years.
  1. [21]
    What that means is that you must not commit another offence punishable by imprisonment within a period of 2 years if you are to avoid being dealt with for the suspended terms of imprisonment. The orders, of course, are to run concurrently. And it follows that convictions are recorded, necessarily.

Footnotes

[1]Cf: R v Carlton [2010] 2 Qd R 340, at [38].

[2]Prosecution outline of submissions, dated 22/09/16, at [3].

[3]Prosecution outline of submissions, dated 22/09/16, at [7].

[4]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, at 384.

[5](2010) 2 Qd R 340, at [37]-[39], [90]-[93] and [105]-[107].

[6]R v Koster [2012] QCA 302, at [38]

[7]Plaintiff S157/2000 v Commonwealth of Australia (2003) 211 CLR 476, at 492 per Gleeson CJ.

[8]See: Explanatory Notes to the Youth Justice and Other Legislation Amendment Bill 2015, at p 1.

[9]Ibid, at p 3.

[10]Ibid, at pp 4-5.

Close

Editorial Notes

  • Published Case Name:

    R v DNR

  • Shortened Case Name:

    R v DNR

  • MNC:

    [2016] QDC 240

  • Court:

    QDC

  • Judge(s):

    Long DCJ

  • Date:

    27 Sep 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.