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R v CZN[2021] QSC 182

SUPREME COURT OF QUEENSLAND

CITATION:

R v CZN & Anor [2021] QSC 182

PARTIES:

R

(Respondent)

v

CZN

(First Applicant)

AND

LXE

(Second Applicant)

FILE NO/S:

BS 988 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application pursuant to s 590AA Criminal Code

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

30 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2021

JUDGE:

Jackson J

ORDER:

The order of the court is that:

  1. The applications are dismissed.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – PRESERVATION OF RIGHTS, LIABILITIES AND LEGAL PROCEEDINGS ON AMENDMENT, REPEAL, LAPSING ETC OF ACT OR PROVISION – CONTRARY INTENTION – where the applicants were charged with declared offences and as being a vicious lawless associate under the Vicious Lawless Association Disestablishment Act 2013 (Qld) (“VLAD Act”) – where the applicants had not been sentenced in respect of the relevant offences before the repeal of the VLAD Act by the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) (“SOCLA Act”) – where each applicant submits that a contrary intention appears in the SOCLA Act to displace the application of s 20(2) of the Acts Interpretation Act 1954 (Qld) to the sentencing regime under s 7 of the VLAD Act – whether s 7 of the VLAD Act will apply to the applicants at sentence – whether the regime under ss 245 and 246 of the Penalties and Sentences Act 1992 (Qld) applies to an offender who was sentenced before the repeal of the VLAD Act and to one who is sentenced after the repeal

Acts Interpretation Act 1954 (Qld), s 4, s 14(1), s 20(2)

Penalties and Sentences Act 1992 (Qld), s 13A, s 161O, s 161P, s 161Q, s 161R, s 244, s 245, s 246, sch 1, sch 1C

Serious and Organised Crime Legislation Amendment Act 2016 (Qld), s 282, s 492

Vicious Lawless Association Disestablishment Act 2013 (Qld), s 3, s 5, s 7, s 9, s 11

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, cited

Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1, cited

Pfeiffer v Stevens (2001) 209 CLR 57, cited

R v HXY & Ors [2017] QSC 108, distinguished

R v JAA [2019] 3 Qd R 242, distinguished

Sweeney v Fitzhardinge & Ors (1906) 4 CLR 716, cited

Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106, cited

COUNSEL:

A Kimmins and M Longhurst for the First Applicant

S Lynch for the Second Applicant

D Meredith for the Respondent

SOLICITORS:

Gatenby Law for the First Applicant

Dib & Associates for the Second Applicant

Office of the Director of Public Prosecutions for the Respondent

Jackson J:

  1. [1]
    The question in this case is whether s 7 of the now repealed Vicious Lawless Association Disestablishment Act 2013 (Qld) (“VLAD Act”) will apply to the applicants at sentence in respect of counts 5 and 7 of the indictment presented today.  As alleged, the two relevant offences, each of which was a “declared offence”[1] within the meaning of the VLAD Act, were as follows:

“Count 5 - “that on the twentieth day of April, 2015 at Stapylton in the State of Queensland, [CZN] and [LXE] unlawfully assaulted [AMB] and did [AMB] bodily harm.

And [CZN] and [LXE] was armed with an offensive weapon.

And [CZN] and [LXE] was in company with other persons.

And [CZN] and [LXE] was a vicious lawless associate.

And [CZN] was an office bearer of the relevant association.”

Count 7 - “that on the twentieth day of April, 2015 at Stapylton in the State of Queensland, [CZN] and [LXE] attempted by unlawfully assaulting [AMB] to obstruct the course of justice.

And [CZN] and [LXE] was a vicious lawless associate.

And [CZN] was an office bearer of the relevant association.”

  1. [2]
    Section 7 of the VLAD Act provided, in part:

7 Sentencing

  1. (1)
    A court sentencing a vicious lawless associate for a declared offence must impose all of the following sentences on the vicious lawless associate—
  1. (a)
    a sentence for the offence under the law apart from this Act and without regard to any further punishment that may or will be imposed under this Act;
  1. (b)
    a further sentence of 15 years imprisonment served wholly in a corrective services facility;
  1. (c)
    if the vicious lawless associate was, at the time of the commission of the offence, or during the course of the commission of the offence, an office bearer of the relevant association — a further sentence of 10 years imprisonment served wholly in a corrective services facility which must be served cumulatively with the further sentence mentioned in paragraph (b).”
  1. [3]
    Section 7 was repealed by s 492 of the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) (“SOCLA Act”).  The repeal was made on the commencement of that Act on 9 December 2016.  No express provision was made about the application of the VLAD Act, including s 7, to an offender who had committed a declared offence and was a vicious lawless associate who had not been sentenced in respect of the relevant offence before the repeal.
  2. [4]
    However, s 282 of the SOCLA Act amended the Penalties and Sentences Act 1992 (Qld) (“PS Act”) by insertion of a new Part 14 Division 16 to the PS Act.  The division is headed “Transitional provisions for Serious and Organised Crime Legislation Amendment Act 2016” and Subdivision 1 of the division is headed “Transitional provisions for repeal of Vicious Lawless Association Disestablishment Act 2013”.  Those headings are part of the Act.[2]
  3. [5]
    The provisions of Subdivision 1 include:

244 Application of subdivision

This subdivision applies if a court has in, or in connection with, a criminal proceeding, including, for example, a proceeding on appeal, sentenced a person as a vicious lawless associate for a declared offence under the repealed VLAD Act, section 7.

245 Application to Supreme Court to reopen sentencing proceedings

  1. (1)
    The person may apply to the Supreme Court to reopen the proceeding to the extent the court imposed on the person either or both of the following—
  1. (a)
    a further sentence of 15 years imprisonment served wholly in a corrective services facility under the repealed VLAD Act, section 7(1)(b);
  1. (b)
    a further sentence of 10 years imprisonment served wholly in a corrective services facility under the repealed VLAD Act, section 7(1)(c).
  1. (2)
    The application must be made within 3 months after the commencement.
  1. (3)
    The court may, at any time, extend the period mentioned in subsection (2).
  1. (4)
    The court must give a copy of the application to the director of public prosecutions.
  1. (5)
    Within 10 business days after the making of the application, the court must give directions to enable the application to be heard.

246 Supreme Court may reopen sentencing proceedings

  1. (1)
    On the hearing of an application under section 245, the Supreme Court may reopen the proceeding to the extent mentioned in section 245(1).
  1. (2)
    The Supreme Court may also, at any time, reopen the proceeding to the extent mentioned in section 245(1) if a court reopens the proceeding under section 188.
  1. (3)
    If the Supreme Court reopens the proceeding under subsection (1) or (2), the court must—
  1. (a)
    give the parties an opportunity to be heard; and
  1. (b)
    if the person was sentenced under the repealed VLAD Act, section 7(1)(a) to a sentence other than life imprisonment or an indefinite sentence—resentence the person to a further sentence as if the law applicable to the further sentence were the law mentioned in section 161R(2)(b); and…”
  1. [6]
    Each applicant submits that s 7 does not apply to them after repeal of the VLAD Act as an offender who committed a declared offence and was a vicious lawless associate before the repeal of that Act.  Each submits that although there is no express provision dealing with the liability of such an offender who has not been sentenced at the time of the repeal, the proper construction of the SOCLA Act is such that a contrary intention appears in the SOCLA Act, within the meaning of s 4 of the Acts Interpretation Act 1954 (Qld) (“AI Act”), to displace the application of s 20(2) of the AI Act to s 7 of the VLAD Act.
  2. [7]
    In R v JAA,[3] it was decided that an applicant in a similar position to the applicants in the present case fell to be punished under s 7 of the VLAD Act, the liability and penalty for which were preserved by s 20(2) of the AI Act.  That section provides:

20 Saving of operation of repealed Act etc.

  1. (1)
    In this section—

Act includes a provision of an Act.

repeal includes expiry.

  1. (2)
    The repeal or amendment of an Act does not—
  1. (a)
  1. (b)
    affect the previous operation of the Act or anything suffered, done or begun under the Act; or
  1. (c)
    affect a right, privilege or liability acquired, accrued or incurred under the Act; or
  1. (d)
    affect a penalty incurred in relation to an offence arising under the Act; or
  1. (e)
    affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d)…”
  1. [8]
    The question considered in JAA is not the same one as the applicants advance in the present case.[4]  However, it must be acknowledged that the effect of the applicants’ contention in this case runs contrary to the result in that case.
  2. [9]
    The contrary intention relied upon is submitted to arise from the operation of ss 245 and 246 as set out above.  According to the result in JAA, and subject to exceptions not presently relevant,[5] an offender such as JAA or the applicants who commits a declared offence is liable under s 7 to (and the court must impose) a “further sentence”[6] of 15 years imprisonment if they are a “vicious lawless associate”[7] and a further 10 years imprisonment if they are an “office bearer”[8], if the offender was not sentenced before the repeal of the VLAD Act.  However, if the offender was sentenced before the repeal to a further sentence of one or both of the further mandatory periods of imprisonment, they were entitled to apply to reopen the sentence proceeding to that extent.  The court is given power to reopen the proceeding and, if it does, in a case not involving a life sentence or an indefinite sentence, the court must resentence as if it were acting under s 161R(2)(b) of the PS Act. 
  3. [10]
    That section provides:

161R Court must impose term of imprisonment

  1. (1)
    This section applies to the sentencing of an offender convicted of a prescribed offence committed with a serious organised crime circumstance of aggravation.
  1. (2)
    The court must impose on the offender a term of imprisonment consisting of the following components—
  1. (a)
    a sentence of imprisonment for the prescribed offence imposed under the law apart from this part and without regard to the following (the base component)—
  1. (i)
    the sentence that must be imposed on the offender under paragraph (b);
  1. (ii)
    the control order that must be made for the offender under section 161V;
  1. (b)
    (other than if a sentence of life imprisonment is imposed as the base component or the offender is already serving a term of life imprisonment) a sentence of imprisonment (the mandatory component) for the lesser of the following periods—
  1. (i)
    7 years;
  1. (ii)
    the period of imprisonment provided for under the maximum penalty for the prescribed offence.”
  1. [11]
    If the further sentence of a vicious lawless associate under s 7 of the VLAD Act is reopened under s 246 of the PS Act, the further sentence must be reduced to 7 years or the maximum period of imprisonment for the offence, whichever is the lesser.  That is to say, it must be reduced to no more than 7 years.
  2. [12]
    It will be noticed that, by its terms, s 161R(1) applies that section to “an offender convicted of a prescribed offence committed with a serious organised crime circumstance of aggravation”.  Broadly speaking, but with differences, a “serious organised crime circumstance of aggravation”[9] corresponds in purpose to the concepts that informed what was a “vicious lawless associate” under the VLAD Act.  And the “prescribed offences” include the “declared offences” charged in counts 5 and 7.[10]
  3. [13]
    According to the result in JAA, if a vicious lawless associate committed a declared offence but was not sentenced before the repeal of the VLAD Act, s 7 of that Act continues to apply, notwithstanding the repeal.  If s 7 applies, the sentencing court must impose a further sentence of 15 years imprisonment for a vicious lawless associate who committed a declared offence before the repeal, and an additional 10 years if the offender was an office bearer.

The anomaly

  1. [14]
    One view of the operation of ss 245 and 246 of the PS Act is that s 245(1) only applies to a further sentence imposed under s 7 of the VLAD Act before the repeal.  This view seems to have been assumed or accepted in at least two cases.[11]  It might be argued that there is no provision that limits the time within which the application under s 245(1) must be made for a sentence passed under s 7 after the repeal.  However, that view and argument do not sit well with either the structure or the text of ss 246 and 245.  As to the structure, s 246, and the power to reopen it confers, applies “on the hearing of an application under section 245”.  As to the text, an application provided for under s 245(1) must be brought within 3 months of the repeal as provided under s 245(2) or the extended time (from that time) allowed by the court under s 245(3).  The extension in contemplation is an extension of the time of three months.  As a matter of ordinary meaning, ss 245 and 246 do not appear to apply to a sentence passed under s 7 after the commencement of the repeal.
  2. [15]
    It is anomalous that an offender who was fortunate enough to be sentenced before the repeal may have had his or her 15 year or 25 year further period of imprisonment imposed under s 7 reduced to no more than 7 years under ss 245 and 246 of the PS Act but an offender who is sentenced after the repeal in otherwise identical circumstances must be sentenced to the further 15 or 25 year periods.  That anomaly[12] informs the applicant’s submission that a contrary intention appears in the SOCLA Act so that s 20(2) of the AI Act does not apply to s 7 of the VLAD Act.
  3. [16]
    Although that conclusion and a construction of the repeal of s 7 of the VLAD Act to have retrospective operation would remove that anomaly, it would create another anomaly of a similar kind.  If the SOCLA Act retrospectively repealed the application of s 7 to a declared offence committed by a vicious lawless associate who had not been sentenced before the repeal, such an offender would not be liable to any further period of imprisonment under either the VLAD Act or the SOCLA Act.  But an offender who had been sentenced to a further period of imprisonment under s 7 before the repeal, could only apply to have their sentence reopened and the further period of imprisonment imposed under s 7 reduced under s 161R(2)(b) of the PS Act to either 7 years imprisonment or the maximum period provided for as punishment for the offence, whichever is the lesser.  Similarly, an offender who committed an offence in comparable circumstances to those alleged in the present case after the repeal that engaged Pt 9D of the PS Act would also be liable to a mandatory further component of imprisonment under s 161R(2)(b).
  4. [17]
    It should be observed that neither of the possible anomalies is caused by the repeal of s 7 of itself.  It is a commonplace for the penalty for an offence or attaching to circumstances of aggravation for an offence to be altered by amendment or repeal in a way that creates a difference in liability to punishment for an offence committed before and after the relevant change in the law.  No anomaly is involved.  The repeal of s 7, by itself, is such a change.
  5. [18]
    The anomaly in the present case is caused by the partial retrospective change in the law as to the punishment that applies to a declared offence committed by a vicious lawless associate before the repeal of s 7.  If the offender was sentenced before the repeal commenced, the reopening and reduction provisions of ss 245 and 246 of the PS Act apply.  But on the ordinary meaning of the text of ss 245 and 246, they do not apply to an offender who was not sentenced before the repeal commenced.  It is unlikely that result was intended.  It is more likely that it was a drafting oversight or mistake.

Contrary intention

  1. [19]
    The precise question for decision is whether the anomaly and any other relevant constructional indicators are such that a contrary intention to the application of s 20(2)(d) of the AI Act can be discerned.  If it can, this application must be allowed.  Summarising, there are two possible other views.  One is that s 20(2)(d) applies in a way that is subject to the operation of ss 245 and 246 of the PS Act for all vicious lawless associates who committed a declared offence before the repeal.  The other is that it applies in that way but only to those offenders who were sentenced before the repeal.  On either of those alternatives, this application must be dismissed.
  2. [20]
    Although a contrary intention may appear from the general character of legislation, in addition to appearing from the express terms or necessary implication of a provision,[13] it cannot appear from mere conjecture,[14] as opposed to an inconsistency or incompatibility.[15]  The accepted principle is that actual contrariety must be apparent.[16]  It is a principle recently traced in the general context of the implied repeal of a provision by an inconsistent later Act to Lord Blackburn in 1878,[17] and may be expressed to be a consequence of the “principle of harmonious operation”, that a legislature does not intend to contradict itself but intends that both relevant enactments should operate.[18]  An analogous principle is that where there is an anomaly raising an absurdity in operation that must have been a drafting mistake, the court may give the text a meaning other than the ordinary grammatical meaning.[19]

Other arguments

  1. [21]
    The applicant submits that the contrary intention may also be found having regard to the provision in s 11 of the VLAD Act that its operation was to be reviewed by the Minister as soon as reasonably practicable after 3 years after its commencement.  The argument must be rejected.  First, any contrary intention for the purposes of s 4 of the AI Act must appear in the SOCLA Act, not the VLAD Act.  Second, a provision that an Act must be reviewed by a stated time is not uncommon in modern legislation in Queensland.  It does not have the effect that the Act expires at that time, as the applicant seemed to imply in written submissions.

Conclusion

  1. [22]
    In this context, the meaning to be ascertained is informed by a number of contextual points that are relevant to objectively ascertaining Parliament’s intention in passing the SOCLA Act as to any continued operation of the VLAD Act.  It was undoubtedly the purpose of s 492 of the SOCLA Act to repeal the VLAD Act, but nothing in the repealing section, per se, suggests retrospectivity in its operation.  Second, as a matter of wider context, the purpose of Part 9D of the PS Act inserted by the SOCLA Act was to replace the regime under the VLAD Act with liability for a mandatory component of a further period of imprisonment of up to 7 years for an offender convicted of a “prescribed offence” committed with a “serious organised crime circumstance of aggravation”.  Third, it was also the purpose of Part 14 Division 16 Subdivision 1 of the PS Act inserted by the SOCLA Act to retrospectively provide for the reduction of the period of further sentence applicable to a vicious lawless associate who had committed a declared offence, at least if the offender had been sentenced at the repeal.   Fourth, the Minister moving the second reading of the bill for the SOCLA Act stated that “[t]he VLAD Act is excessive and disproportionate… The bill replaces the VLAD Act and circumstances of aggravation introduced into the Criminal Code in 2013 with a new serious organised crime circumstance of aggravation… [that] will apply to a specific, targeted list of offences”.[20]
  2. [23]
    These provisions and contextual matters may support an intention that and a construction of ss 245 and 246 of the PS Act that the provisions intended to replace the regime under the VLAD Act with the equivalent of the mandatory component of a further period of imprisonment of up to 7 years for an offender convicted of a prescribed offence committed with a serious organised crime circumstance of aggravation extend both to an offender who was sentenced before the repeal of the VLAD Act and to one who is sentenced after the repeal.
  3. [24]
    It must be acknowledged that such a construction of ss 245 and 246 would yield a clumsy or anomalous procedure for the sentencing of a vicious lawless associate after the repeal, where first the defendant would be sentenced to the further sentence provided for under s 7 of the VLAD Act and then the sentence would be reopened and reduced under ss 245 and 246 of the PS Act.
  4. [25]
    But, in my view, notwithstanding those matters, the SOCLA Act does not evince the actual contrariety that must be apparent for the conclusion that there is a contrary intention in the SOCLA Act to the application of s 20(2)(d) of the AI Act to s 7 of the VLAD Act.
  5. [26]
    It follows, in my view, that the application must be dismissed.

Footnotes

[1] Vicious Lawless Association Disestablishment Act 2013 (Qld), s 3 definition “declared offence” and sch 1.

[2] Acts Interpretation Act 1954 (Qld), s 14(1).

[3]  [2019] 3 Qd R 242.

[4]  Note, however, the reference to the relevant provisions of the PS Act at [2019] 3 Qd R 242, 245 [73] and footnote 1.

[5]  Such as reduction of the sentence under s 13A of the Penalties and Sentences Act 1992 (Qld) – see Vicious Lawless Association Disestablishment Act 2013 (Qld), s 9.

[6] Vicious Lawless Association Disestablishment Act 2013 (Qld), s 3 definition “further sentence”.

[7] Vicious Lawless Association Disestablishment Act 2013 (Qld), s 5.

[8] Vicious Lawless Association Disestablishment Act 2013 (Qld), s 3 definition “office bearer”.

[9] Penalties and Sentences Act 1992 (Qld), ss 161Q, 161O and 161P.

[10] Penalties and Sentences Act 1992 (Qld), sch 1C.

[11] R v HXY & Ors [2017] QSC 108; R v JAA [2019] 3 Qd R 242.

[12]  In R v HXY & Ors [2017] QSC 108, [39] Douglas J referred to this operation of the provisions as an “anomaly” deserving the attention of the legislature.

[13] Pfeiffer v Stevens (2001) 209 CLR 57, 73 [56].

[14] Sweeney v Fitzhardinge & Ors (1906) 4 CLR 716, 727.

[15] Sweeney v Fitzhardinge & Ors (1906) 4 CLR 716, 735.

[16] Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1, 14 [43].

[17] Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106, [8].

[18] Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106, [11]-[13].

[19] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, 306, 311 and 321-322.

[20]  Hansard, 13 September 2016, p 3403.  I put to one side the argument that a contrary intention under s 4 of the Acts Interpretation Act 1954 (Qld) must appear “in” the Act in question, excluding reliance upon extrinsic materials: C & E Pty Ltd v CMC Brisbane Pty Ltd [2004] 2 Qd R 244.

Close

Editorial Notes

  • Published Case Name:

    R v CZN & Anor

  • Shortened Case Name:

    R v CZN

  • MNC:

    [2021] QSC 182

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    30 Jul 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

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

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