Queensland Corrective Services v McKenzie
[2015] QMC 5
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- Unreported Judgment
- Queensland Corrective Services v McKenzie[2015] QMC 5
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Queensland Corrective Services v McKenzie[2015] QMC 5
Queensland Corrective Services v McKenzie[2015] QMC 5
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Queensland Corrective Services v McKenzie [2015] QMC 5 |
PARTIES: | QUEENSLAND CORRECTIVE SERVICES (Plaintiff) v JOANNE MCKENZIE (Defendant) |
FILE NO/S: | 00001970/15 |
DIVISION: | Magistrates Courts |
PROCEEDING: | Sentence |
ORIGINATING COURT: | Caboolture |
DELIVERED ON: | 28 April 2015 |
DELIVERED AT: |
|
HEARING DATE: | 28 April 2015 |
MAGISTRATE: | Magistrate Bucknall |
ORDER: | Finding of Guilty – Breach of Probation Order |
CATCHWORDS: | Penalties and Sentences Act 1992 (Q) s 123 Acts Interpretation Act 1954 (Q) s 45 Pearce v R [1998] HCA 57 R v S; R v L [2015] QChC 3 |
PROSECUTION: | Mr R Vize for the plaintiff (Queensland Corrective Services) |
DEFENCE: | Mr L Watling solicitor for the defendant |
- [1]This is a matter where the defendant is charged with an offence arising out of s 123(1) of the Penalties and Sentences Act 1992 that is having breached the terms of a community based order by way of committing a further offence during the currency of the community based order.
- [2]A submission was made by the lawyer representing Ms McKenzie that to convict Ms McKenzie of the charge before the court would be contrary to the provisions of s 16 of the Criminal Code, that is it would amount to a double punishment.
- [3]Section 16 of the Criminal Code is as follows:
16 Person not to be twice punished for same offence
A person cannot be twice punished either under the provisions of this code or under the provisions of any other law for the same act or omission, except…
- [4]The High Court considered a similar provision in the decision of Pearce v R [1998] HCA 57; and at paragraph 40 of that decision stated:
40. To the extent to which two offences of which an offender stands convicted contain common elements it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt the general principle may yield to any contrary legislative intention, (my emphasis) but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts.”
- [5]I also note s 45 of the Acts Interpretation Act 1954.
- [6]That section is as follows:
Offence Punishable Only Once
- (1)If an act or omission is an offence under each of two or more laws, the offender may be prosecuted and punished under any of the laws, but the offender may not be punished more than once for the same offence.
- (2)Subsection (1) applies to a law, unless an act otherwise expressly (my emphasis) provides.
- (3)In this section –
law includes the common law.
- [7]It is clear from both the Acts Interpretation Act, together with a consideration of s 16 of the Criminal Code and when considering the comments made by their Honours in the High Court decision of Pearce, that any provision which allows for an offender to be punished more than once for the same act or omission (so far as it relates to two or more criminal offences) requires an express provision in the legislation to bring about this result.
- [8]In support of the submission that to convict Ms McKenzie would be contrary to the provisions of s 16 of the Criminal Code the duty lawyer relies upon a recent decision of the Childrens Court of Queensland; R v S; R v L [2015] QChC 3.
- [9]That decision concerned a provision of the Youth Justice Act, s 59A(2) whereby the learned judge found that to convict a young person of the offence provided for in s 59A(2) would be contrary to the provisions of s 16 of the Criminal Code.
- [10]Her honour in that decision found that the provision operated in a similar way to a breach of a probation order and said as follows:
…Probation is a sentence which carries a number of conditions one of which is not to commit another offence during the probation order. When an offender appears on a breach of probation order for reoffending the usual outcome is that they are resentenced for the original offences. If they are charged with an offence of breach of probation the reoffending is often coupled with other breaches such as failure to attend programmes or appointments. If they are simply charged with the offence of breach of probation as a result of reoffending and charged with the offending as well then it may well be arguable that the provisions of s 16 of the Criminal Code apply in that case as well.
- [11]The provision which her honour was examining was s 59A of the Youth Justice Act.
- [12]When looking at that particular provision there is no express provision that a young person can be punished more than once for the same act or omission and in the absence of any express provision, and as her honour decided, the provision is contrary to the provisions contained in s 16 of the Criminal Code and s 45 of the Acts Interpretation Act.
- [13]When making reference to s 123 of the Penalties and Sentences Act her honour held that a similar argument as to the one before her at the time may well be arguable.
- [14]Section 123 of the Penalties and Sentences Act is as follows:
123 Offence to contravene requirement of community based orders
(1) An offender who contravenes, without reasonable excuse, a requirement of a community based order commits an offence.
Maximum penalty-10 penalty units.
(2) Subsection (1) applies-
(a) whether or not the contravention is an offence against another Act or law; and
(b) whether the contravention happens in or out of Queensland.
- [15]I am of the view that when reading that provision, and unlike s 59A of the Youth Justice Act, that s 123 of the Penalties and Sentences Act does expressly provide for an additional penalty to that which may have been imposed in relation to the conviction for the offence which gave rise to a breach of the community based order in the first place.
- [16]Given my finding I am of the view that to convict the defendant of the offence before me does not run contrary to law either when considering s 16 of the Criminal Code or s 45 of the Acts Interpretation Act and accordingly I find the defendant guilty of the offence as charged.