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CDE v R QDCPR 2
DISTRICT COURT OF QUEENSLAND
CDE v R  QDCPR 2
Application to re-open a sentence proceeding
District Court at Hervey Bay
20 January 2017 (Orders made that date; reasons published 3rd February 2017)
20 January 2017
The sentence proceeding held on 14.11.16 in relation to counts 1, 12, 13 and 15 is reopened. The sentences imposed in relation to all counts on that day are set aside. In relation to counts 12, 13, and 15, the applicant is convicted and not further punished. In relation to count 1 the applicant is sentenced to 8 years imprisonment.
CRIMINAL LAW AND PROCEDURE : where applicant was sentenced after a trial for offences of sodomy and an offence which contained the offence of sodomy as a circumstance of aggravation; where without the knowledge of the parties the offence of sodomy had been abolished a short time before the trial; where the applicant applies to re-open the sentencing proceedings pursuant to s. 188 of the Penalties and Sentences Act 1992, whether the discretion to re-open is enlivened; whether by virtue of s.11 of the Criminal Code the applicant is liable for punishment no greater than that permitted by the repealed law; whether various provisions of the Acts Interpretation Act 1954 preserve the legitimacy of the punishment imposed for offences that no longer existed at the time of conviction.
Acts Interpretation Act 1954 ss 20, 20C
Crimes Act 1914 (Cth) s 16A(2)
Criminal Code 1899 ss 11, 208, 229B, 605
Health and Other Legislation Amendment Act 2016 (Act No. 50)
Interpretation Act 1987 (NSW) ss 30(1)(c) & (e), 55(2)
Penalties and Sentences Act 1992 ss 180, 188,
Pritchard v R  107 A Crim R 88
R v Cassar; Ex Parte Attorney-General  QCA 300
R v D  1 Qd R 363
R v Davis  109 A Crim R 314
R v De Simoni (1981) 147 CLR 383
R v TL  1 Qd R 659
R v VF  QCA 239
Weininger v The Queen  212 CLR 629
J Hanna of Counsel for the Respondent/Crown
D MacKenzie of Counsel for the Applicant/Defendant
Office of the Director of Public Prosecutions for the Respondent/Crown
Carswell and Co. Solicitors for the Applicant/Defendant
- The applicant was tried before myself and a jury in the Hervey Bay District Court between 7 November 2016 and 14 November 2016 on an indictment containing 16 counts alleging sexual misconduct with his stepson, BAG. Counts 1 and 2 and counts 10 and 11 on the indictment presented on the first morning of the trial were pleaded in the alternative.
- On 14 November 2016, the applicant was convicted of counts 1, 4, 5, 6, 8, 10, 12, 13 and 15. On the remaining counts, the jury were unable to agree upon a verdict and on 16 November 2016, the respondent entered a nolle prosequi in relation to each of counts 3, 7, 9, 14 and 16.
- For present purposes, only the terms of counts 1, 12, 13 and 15 are relevant. It was alleged:
that between the sixteenth day of January 1999 and the fifth day of May 2006 at Rosedale and elsewhere in the State of Queensland, CDE being an adult, maintained an unlawful sexual relationship with BAG, a child under 18 years.
And in the course of the relationship, CDE sodomized BAG, a person under 18 years.
And in the course of the relationship, CDE permitted BAG, a male person under 18 years, to sodomize him.
And in the course of the relationship, CDE attempted to sodomize BAG, a person under 18 years and BAG was, to the knowledge of CDE, under his care.
And in the course of the relationship, CDE unlawfully and indecently dealt with BAG, a child under 16 years and CDE had BAG under his care, for the time being.
that on a date unknown between the thirty-first day of December, 2004 and the first day of June, 2005 at Point Vernon in the State of Queensland, CDE attempted to sodomize BAG, a person under 18 years.
that on a date unknown between the thirty-first day of December, 2004 and the first day of June, 2005 at Point Vernon in the State of Queensland, CDE sodomized BAG, a person under 18 years.
that on a date unknown between the thirtieth day of June 2005 and the first day of April, 2006 at Dundowran Beach in the State of Queensland CDE permitted BAG, a male person under 18 years, to sodomize him.”
- On 14 November 2016, after hearing extensive submissions, I imposed the following sentences on the applicant:
Ten years imprisonment.
As a matter of law, it followed that the applicant was thereby convicted of a serious violent offence.
Counts 4, 5, 6 and 8:
On each count concurrent terms of four years.
Counts 10 and 12:
On each count terms of six years.
Counts 13 and 15:
On each count concurrent terms of seven years.
- I note that in relation to Count 15, the court order sheet contains an error to the effect that the sentence imposed was six years whereas the sentence imposed was seven years.
- On 23 September 2016, as a result of the passage of the Health and Other Legislation Amendment Act 2016 (Act No. 50), the offence of sodomy in s 208 of the Criminal Code was abolished, in the sense that such an offence no longer existed if it involved consensual acts with a person over the age of 16 years. Section 229B of the Criminal Code was also amended to lower the prescribed age to 16 years.
- It is common ground that the complainant turned 16 on 5 May 2004.
- At the time that I imposed the sentences, the amending legislation was not brought to my attention.
- On 21 November 2016, the applicant applied pursuant to s 188(4) of the Penalties and Sentences Act 1992 (“PSA”) to reopen the proceedings in relation to the sentences imposed in respect of counts 1, 12, 13 and 15. After discussion between the parties and my associate, the application was set down for hearing on 20 January 2017.
- On 22 November 2016, the applicant filed appeals in the registry of the Court of Appeal against both conviction and sentence, pleading in respect of the sentences that the sentences imposed on 14 November 2016 were “manifestly excessive.” No issue is taken now to the effect that because the appeals have been lodged, I no longer have jurisdiction to hear the reopening application.
- The factual background is described in paragraphs 3.1-3.4 of the applicant’s outline prepared by Mr Mackenzie:
“3.1 The defendant was convicted following a six day trial by jury in the District Court at Hervey Bay on Monday 14 November 2016 of maintaining an unlawful sexual relationship with his stepson, BAG, between 16 January 1999 and 5 May 2006. He was also convicted of other discrete offences of indecent treatment and sodomy. The indictment alleged 16 counts, two of which were disregarded alternatives (counts 2 and 11) and the jury failed to reach verdicts on counts 3, 7, 9, 14 and 16 which were later the subject of nolle prosequi.
3.2 Relevantly, the complainant was born on 5 May 1990 and was aged between 8 and 18 years of age. He turned 16 on 5 May 2016 (in fact the complainant was born on 5 May 1988 and turned 16 on 5 May 2004; and he was aged between 10 and 18 during the period of the offending). Count 1 included allegations of sodomy and counts 12, 13 and 15 of which he was convicted. There were discrete counts alleging sodomitic acts, each clearly occurring after the complainant turned 16.
3.3 Count 10 is the only discrete count alleging sodomy or attempted sodomy prior to the complainant’s 16th birthday, upon which the defendant was convicted. It was the first sodomitic act in the relationship and it occurred in about 2003. There is a dearth of evidence of uncharged sodomitic acts prior to 5 May 2004 (the complainant’s 16th birthday). It is to be noted that in the alternative count (count 2), which only covered the period prior to 5 May 2004, the prosecution did not allege sodomy.”
- In relation to this latter contention, the respondent notes that count 2 was available to the jury as an alternative if they were not satisfied that the sexual relationship included acts of sodomy and attempted sodomy. The existence of count 2 as an alternative does not mean that the Crown was not alleging attempted sodomy (apart from count 10) before the complaint’s 16th birthday. Mr Hanna also submits that contrary to the applicant’s submission, it was alleged that the sexual relationship between the applicant and the complainant included many more acts that were not separately charged.
- The defendant was not charged with rape and the issue of consent was not litigated.
- Section 188 of the PSA is in the following terms:
“188 Court may reopen sentencing proceedings
- (1)If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal—
- (a)imposed a sentence that is not in accordance with the law; or
- (b)failed to impose a sentence that the court legally should have imposed; or
- (c)imposed a sentence decided on a clear factual error of substance; or
the court, whether or not differently constituted, may reopen the proceeding.”
- In R v Davis  109 A Crim R 314, Thomas JA (with whom McMurdo P agreed) said of the general interpretation of s 188(1)(a), (b) and (c), which remain in the same form today, at 316-317:
“Clearly the legislature has now given to the courts a useful tool which will enable both legal and factual errors to be corrected. The power is not to be hedged by unnecessary legal distinctions. I do not think that the term ‘clear factual error of substance’ presents any particular difficulty. The use of the word "clear" suggests that the court should not act unless the error is clearly shown, and the words "of substance" suggest that this exceptional procedure should not be invoked in relation to pettifogging points or relatively minor mistakes. Those words suggest to me the need for something of sufficient importance as to be likely to call for some material alteration of the sentence.”
- In R v Cassar; Ex Parte Attorney-General  QCA 300, the court referred to s 188(1)(c) (and did not refer to Davis) and said (at 390):
“Attempts to review sentences, in light of subsequent events, by resort to a creative, non-literal construction of s 188 must be strongly discouraged. The section may not be used as an avenue for the judicial review of administrative decisions. Sentences are reviewed through the appeal process, not by means of this provision, which is in the nature of a 'slip rule', to be used in the exceptional, limited circumstances to which in precise terms it refers.”
- Section 188(3) provides (relevantly):
- “(3)If a court reopens a proceeding, it—
- (b)may resentence the offender—
- (i)for a reopening under subsection (1)(a)—to sentence in accordance with law; or
- (iii)for a reopening under subsection (1)(c)—to a sentence that takes into account the factual error;
- The applicant’s argument predominantly focuses on s 188(1)(a).
The applicants’ contentions
- Section 11 of the Criminal Code provides:
“11 Effect of changes in law
- (1)A person cannot be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred; nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when the person is charged with the offence.
- (2)If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law.”
- Reference is made in the applicant’s outline to s 180 of the Penalties and Sentencing Act 1992 and to s 20C of the Acts Interpretation Act 1954, but it is primarily in relation to s 11(2), that the application to reopen the sentence imposed on 14 November 2016 is directed.
- However, the first of Mr MacKenzie’s contentions relates to s 11(1). He argues that as the trial proceeded on the indictment presented on the morning of the first day of the trial, his client was then “charged with the offence” and could not be punished for doing an act constituting the offence of sodomy which by then had been abolished. He argues that the clear meaning of the words as expressed in s 11(2), is that as the offence of sodomy had been abolished along with the penalty by the time of conviction, his client could not be punished “to any great extent than as authorised by the later law”; that is not at all. This means that in relation to counts 12, 13 and 15 the applicant could not be punished at all; and because of the structure of count 1, the sentence in relation to that offence should also be reopened either pursuant to s 188(1)(a) or (c).
The respondents’ contentions
- Mr Hanna on behalf of the respondent argues that none of the circumstances relied upon by the applicant enliven the discretion in s 188 to reopen the sentences imposed on 14 November 2016. In effect his argument is that the applicant’s approach here is akin to the approach of the respondent in Cassar; and does not take into account the principle that the terms of s 188(1) (a) and/or (c) should be strictly construed according to their precise language. In relation to the s 11(1) point, he argues that as the applicant was charged by police in 2014, no issue arises under s 11(1), and, in any event, the applicant does not appear to contend at this stage that the convictions are not legitimate. As he correctly submits, any attack on the convictions is beyond the power of this court and is a matter for the Court of Appeal.
- He points out that the charges engrossed in the new indictment presented on the first day of the trial, reflected exactly the charges contained in a joint indictment that had been presented prior to the legislative amendments taking effect, which had been severed by order of Her Honour Judge Clare SC, DCJ made on 3 November 2016. The 16 charges had been part of a joint indictment also involving charges against the applicant in relation to the complainant’s younger brother. Her Honour held that the charges against each complainant should be the subject of separate trials.
- In relation to the s 11(2) argument, he argues that a proper construction of s 20(2) and (3) of the Acts Interpretation Act 1954 (the AIA), leads to the conclusion that the sentences imposed in relation to counts 12, 13 and 15 were not imposed pursuant to legal error. Section 20 of the AIA is relevantly in these terms:
- “(2)The repeal or amendment of an Act does not—
- (c)affect a right, privilege or liability acquired, accrued or incurred under the Act; or
- (d)affect a penalty incurred in relation to an offence arising under the Act; or
- (e)affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).
- (3)The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened.”
He argues therefore that the law in force at the time of the applicant’s conviction (after s 208 was repealed) maintains the applicant’s liability for punishment for offences committed before the provisions were repealed.
- He also submits (in a supplementary outline delivered yesterday but referred to at the hearing), that by application of the principle in Weininger v The Queen  212 CLR 629 at 639 – 640, the sentence imposed in relation to Count 1 was in accordance with the law and should stand.
- In relation to the s 11(1) point, the learned authors of Carters Criminal Law of Queensland state:
“The term ‘charged’ as used throughout the Criminal Code includes a process in the Magistrates Court unless the context restricts the reference to a charge upon indictment. The reference in this section appears to be to the initial charging of a defendant following arrest or summons action;”
- As Mr MacKenzie observes, no authority is advanced for this proposition which appears to me to be axiomatic. The general reasoning of the court in R v TL  1 Qd. R. 659 (a case clearly distinguishable), does weigh against the proposition advanced by Mr MacKenzie to the effect that “there does not seem to be any sensible policy reason for “when … charged” to not mean at the commencement of the trial, rather than at the time of arrest.” There was no issue in that case, that by operation of s 11(1) the sentences imposed upon pleas of guilty, and convictions entered after the law change, should be set aside. The point raised by Mr MacKenzie was not discussed. Jones J (with whom Jerrard JA and White J (as Her Honour then was) agreed), noted that in R v VF  QCA 239, a conviction was set aside after a guilty plea because the conduct was not an offence at the time it was alleged to have taken place. As Jones J noted, s 11(1) is to do with punishment not conviction. It can be contrasted with s 20C(1) of the AIA, which provides that where an Act makes an act or omission of offence, the act or omission is only an offence if committed after the Act commences. If Mr MacKenzie is correct, then the proper course for his client when arraigned, in respect of the circumstances of aggravation alleging sodomy in count 1, and the discrete offences of sodomy on which the jury convicted, namely 12, 13 and 15, was not to plead and to demur pursuant to s 605 of the Criminal Code.
- For the purposes of this application I intend to adopt the approach set out in Carter. In their discussion in commentary in relation to s 11(1) the learned authors of Butler and Holt’s “Indictable Offences Queensland” state (relevantly) in relation to s 11(1):
“Conversely, something that was unlawful but then subsequently became lawful cannot be the subject of criminal proceedings. There should be no material distinction between the elements of the offence at the time of its commission and the time of its prosecution.”
- My approach does not mean that, subject to amendment of the grounds of appeal, the point taken by Mr MacKenzie cannot be argued on the conviction appeal before the Court of Appeal.
- Mr MacKenzie’s primary focus was on this subsection. “At the time of conviction” the conduct the subject of counts 12, 13 and 15, no longer constituted an offence. As such, the plain words of s 11(2) seem to me to mean that therefore the applicant could not be punished to any greater extent than is authorised by the later law, that is not at all. The later law, namely the Act assented to on 23 September 2016 provided for no punishment. It has to follow that in relation to counts 12, 13 and 15, the sentence imposed on 14 November 2016 was not in accordance with the law; and in relation to count 1 (to the extent to which I clearly took into account offences of sodomy including the specific offences in 12, 13 and 15 in imposing sentence on that count), the sentence imposed was not in accordance with the law, and was probably also decided on a clear factual error of substance.
- The reasons behind the amendment are well known, but I apprehend that the legislature never contemplated such a situation as exists here. That however is not to the point.
- Mr Hanna’s primary argument relates to the proper construction of s 20(2) and (c) of the AIA by particular reference to the decision of Pritchard v R  107A Crim R 88, a decision of the New South Wales Court of Criminal Appeal.
- In that case the defendant had pleaded guilty to a number of offences including one of buggery, an offence repealed at the time of sentencing. In relation to that offence he was sentenced to a term of imprisonment. He argued on appeal that because of the application of s 55(2) of the Interpretation Act 1987 (NSW), no sentence should have been imposed. There was in New South Wales no equivalent provision to s 11(2) of the Criminal Code (Qld).
- Section 55(2) provided:
“If an Act … reduces the penalty for an offence, the penalty as reduced extends to offences committed before the commencement of the provision of the Act … reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.”
- In its effect, s 55(2), is similar to s 180(2) of the PSA. Essentially, the Court of Criminal Appeal in New South Wales did not construe s 55(2) “as suggesting that the abolition of an offence, is or is capable of being regarded or treated as involving the reduction of a penalty for an offence. The subject matters are different. To reduce a penalty for an offence leaves the offence on foot, but reduces the penalty for it”: per Abadee J at 97.
- The existence of s 11(2) in this State means that the reasoning of the Court of Criminal Appeal in Pritchard should be confined to the legislative framework that existed in New South Wales at that time.
- Mr Hanna also relies on the reasoning of that court in relation to his argument based on s 20(2) and (3) of the AIA. In Pritchard, s 30 of the Interpretation Act 1987 (NSW) provided (relevantly):
“1. The amendment or repeal of an Act … does not:
- (c)affect any right, privilege, or liability acquired, accrued or incurred under the Act … or;
- (e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty;
and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.”
- Section 30(1)(c) and (e) are similar in terms to s 20(2)(c) and (e) of the AIA. Mr Hannah did not refer to any provision in the New South Wales Act similar to s 20(2)(d), however I assume it was there because of the concluding words of s 30(1) which mirror s 20(3) of the AIA which provides:
- “(3)The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened.”
- As I said in argument to Mr Hanna, I regard s 20 (as its heading indicates) as a “saving” provision, and s 20 (2) (d) clearly has retrospective affect i.e. the repeal of s 208 does not affect penalties imposed for the offence prior to commencement of Act No. 50 of 2016.
- In Pritchard (at 97) Abadee J (with whom Barr J agreed) held that s 31(c) and (e) supported his interpretation of s 55(2), so that the repeal of an offence should not necessarily lead to the imposition of any penalty because such an approach does not take into account the distinction between an offence and penalty.
- In my opinion, Mr Hanna’s argument based on s 20 of the AIA, and Pritchard, must be seen in the light of the terms of s 11(2) of the Criminal Code. If necessary, I would hold that a contrary intention to the interpretation preferred by the New South Wales Court of Criminal Appeal of that State’s equivalent of s 20(2) and (3) of the AIA, is expressed in s 11(2) of the Code, so that by virtue of s 4 of the AIA the contrary intention in s 20(2) and (3) would be displaced by the Code provision.
- Finally, there is the argument made by Mr Hannah by reference to Weininger. That case was concerned with “character and antecedents” and not with “circumstances of aggravation which would have warranted a conviction for a more serious offence”: per Gibbs CJ in R v De Simoni (1981) 147 CLR 383 at 389. Weininger says nothing about De Simoni which has been applied consistently in every State and Territory jurisdiction since, including in this State in cases such as R v D  1 Qd R 363. The relevant circumstances in Weininger were that in a statement of facts tendered without objection on a sentencing hearing for an offender who had pleaded guilty to importing a commercial quantity of cocaine, it was revealed that the offender had told an informant that he was involved in a continuing cocaine syndicate. He later denied this in evidence in the sentencing hearing. The sentencing Judge impliedly rejected this evidence as being inconsistent with the statement of facts which referred to the offender’s statement being recorded. The decision of the plurality focussed on the issue of character and antecedents in the context of s.16A (2) of the Crimes Act 1914 (Cth), and specifically said nothing that could indicate a revisiting of the principle in De Simoni.
- In the circumstances here, I clearly took into account circumstances of aggravation in Count 1 which, by the time of conviction, were no longer criminal offences and therefore not subject to punishment by virtue of s.11(2). As such, the sentence was not in accordance with the law.
- For these reasons the sentences imposed in relation to counts 1, 12, 13 and 15 should be reopened.
Note: Robertson DCJ
(insert date of publication)
In light of the remarks of Morrison JA (with whom Philippides JA and Boddice J agreed) in PAZ  QCA 263 at  –  and in particular , the correctness of my construction of s.20 of the AIA and s.11(2) of the Criminal Code should not be adopted.
- Published Case Name:
CDE v R
- Shortened Case Name:
CDE v R
 QDCPR 2
03 Feb 2017