In this case, the applicant was convicted of maintaining an unlawful sexual relationship with a child and applied for leave to appeal against sentence because the sentence was based on the entirety of the period of maintaining notwithstanding that that included conduct after the complainant turned 16. At the time of the conduct and when the applicant was indicted, the prescribed age for sodomy was 18. Subsequently, but before conviction, the legislation was changed so that the relevant age became 16. The applicant argued s 11(2) of the Code applied because the law had changed, so the conduct that occurred after the applicant turned 16 ought not be considered. The Court of Appeal rejected this argument.
Morrison and McMurdo JJA and Bowskill J
21 September 2018
The applicant was convicted of a number of charges, including maintaining an unlawful sexual relationship with a child under the prescribed age (count 1). The other counts, of which he was convicted, formed part of the particulars of count 1. One of those (count 7) was permitting the complainant, a male under 18 years of age, to sodomise the applicant.
The applicant, amongst other things, sought leave to appeal against his sentence on the basis that the sentence was manifestly excessive because the trial judge erred when he based the sentence on the entirety of the period of maintaining (found to be from February 2007 to 1 September 2013, a period during which the complainant was between 10 and 16) even though the conduct constituting count 7 occurred after the complainant turned 16. The applicant submitted that the inclusion of count 7 as a particular of count 1 lengthened the period of maintaining past the prescribed age of 16. .
At the time of the conduct and at the time the applicant was indicted on 9 September 2016, the prescribed age for sodomy was 18 pursuant to s 229B(10) of the Criminal Code. . On 23 September 2016 s 208 was repealed and s 229B(10) was amended such that the relevant age became 16. –. The applicant conceded the conduct constituted a crime at the time of commission and on indictment. .
Where an offence is repealed or amended, s 11(2) of the Code provides:
“If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender can not 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.”
The applicant argued that it ought, therefore, have followed the shorter period of maintaining should have been reflected in the sentence, in accordance with s 11(2). It was submitted the sentence should not have considered the offences that occurred after the complainant turned 16. .
The Crown submitted s 11(2) did not preclude punishment in relation to count 7 because the conduct constituted an offence both when it was committed and when the applicant was charged. . Reliance was placed on s 20(2)(d) of the Acts Interpretation Act 1954 (“AIA”), which provides that the repeal or amendment of an act does not affect a penalty incurred. The applicant contended s 20 of the AIA gives way to the specificity of s 11(2) of the Code , such that conduct that occurred after the complainant turned 16 was improperly considered by the trial judge for the purposes of sentencing.
The interplay between s 20 of the AIA and s 11 of the Code was considered in R v PAZ  QCA 263. In PAZ the charge had been laid and the indictment presented before the amendments to the prescribed age. In PAZ the Court said the effect of s 20 was to preserve the offence and to preserve the penalty incurred when the offence was committed. .
Justice Morrison did not consider there to be any reason to doubt or distinguish PAZ. . However, his Honour agreed with Justice McMurdo’s reasons (at ) that s 11(2) had no scope for operation here. . Ultimately, Morrison J found there to be no misapplication of the sentencing discretion . His Honour said there can be no doubt that where a person commits a crime under a law then in force, and that law is, subsequently, repealed, that person can still be punished and the penalty for that crime, as it was, is also preserved pursuant to s 20(2)(d). .
Justice McMurdo agreed with Morrison JA that the application for leave to appeal against sentence should be dismissed but for “slightly different reasons”. . His Honour considered that s 11(2) of the Code did not apply to this case. . His Honour then considered the reasoning in PAZ. In PAZ it was held that the effect of s 20(2)(d) of the AIA was that “at all times from the commission of the offence the offender was subject to a penalty according to law both before and the repeal of s 208 of the Code.” . And, therefore, in the terms of s 11(2) the law in force at the time of commission of the offence and the law in force at the time of conviction did not change and s 11(2) was not engaged. . His Honour explained that the second limb of s 11(2) prevents an offender from being punished to any greater extent than is authorised by the law in force at the time of the conviction. It applies when the punishment has been decreased after the commission of an offence and prior to conviction. . His Honour determined that the reasoning in PAZ would make the second limb redundant. .
An interpretation of those two provisions – s 11(2) of the Code and s 20(2)(d) of the AIA – where s 11(2) qualifies the operation of s 20(2)(d) was preferred by McMurdo JA. . This was because where, for example, the maximum penalty for an offence is reduced after the commission of the crime, but before conviction, in accordance with s 11(2), the law in force at the time of conviction is the law in force generally and that section is engaged because the law has changed. . And, s 20(2)(d) of the AIA preserves the offender’s liability to punishment, but the extent of punishment may be influenced by s 11(2) of the Code. .
McMurdo JA concluded there is no change in the applicable law so s 11(2) could not be engaged. . The applicant was charged with the offences for which he was indicted, although that was prior to the legislative amendments. He was liable to be punished for those offences in accordance with s 11(1) . Importantly, his Honour said “[a]part from the acts which constituted the offences of sodomy, his other acts, as charged, constituted offences and on the jury’s verdicts, those acts would prove an offence under the present terms of s 229B of the Code”. . It is also important that under the former law, in force when those acts occurred, the maximum penalty was life imprisonment; that was also the case under the changed law. . So, s 11(2) could not be applied and McMurdo JA, therefore, refused the application for leave to appeal.
Justice Bowskill agreed with various aspects of each of Morrison and McMurdo JJA’s reasons. .