Queensland Judgments
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Unreported Citation:

[2018] QCA 365


This judgment considered whether a person who had been charged under the Vicious Lawless Association Disestablishment Act 2013 (VLAD) but who was yet to be sentenced when that Act was repealed was still subject to the mandatory penalty imposed for the circumstance of aggravation of being a “vicious lawless associate”.  The applicant contended that s 11(2) Criminal Code ought to prevail over s 20(2) Acts Interpretation Act 1954 such that the punishment was nil.  The Court found that in the circumstances of this case, s 11(2) Criminal Code had no application because there was no law in force imposing punishment for the same circumstances of aggravation as under the VLAD.  In affirming its previous decisions in R v PAZ and R v HXY the Court held that the applicant fell to be punished by the repealed law, the liability and penalty for which was preserved by s 20(2) AIA.

Sofronoff P and Douglas and Brown JJ

21 December 2018

The applicant pleaded guilty to assault occasioning bodily harm, while armed, in company and trafficking in a dangerous drug as a vicious lawless associate.  At the time of the offending, trafficking while a vicious lawless associate was a circumstance of aggravation under the VLAD Act.  [1], [71]. The Act was repealed on 9 December 2016, prior to the guilty pleas being entered but after the applicant was charged. [72].

The repealing act, the Serious and Organised Crime Legislation Amendment Act 2016 (the SOCLA), omitted to deal with the position of someone who had been charged under the VLAD Act but was yet to be sentenced. [73].  At first instance, the learned sentencing judge determined that the VLAD Act applied to the applicant despite its repeal, relying on R v HXY [2017] QSC 108. [75].

The applicant sought to have R v HXY and the subsequent decision of R v PAZ [2018] 3 Qd R 50 overturned, arguing that those decisions were plainly wrong. [77].  He argued that, as a matter of statutory construction, the specific provisions in s 11(2) of the Criminal Code should prevail over the general provisions in s 20 of the Acts Interpretation Act 1954 (AIA). [78].   Section 11(2) provides, relevantly, that a person cannot be punished to any greater extent than is authorised by the law in force at the time of the conviction. [79]. Section 20(2)(d) provides that repeal or amendment of an Act does not affect a penalty incurred in relation to an offence arising under the Act. [80].

Justice Brown, with whom Sofronoff P and Douglas J agreed, considered the competing arguments and relevant caselaw, including Commissioner of Taxation v Price [2006] 2 Qd R 316. [88]–[94].  The reasons note the obiter of McMurdo JA in R v HBT [2018] QCA 227, which preferred a construction whereby s 11(2) qualified s 20(2)(d), rather than the converse. [93]–[94].

The Court followed the reasoning in R v HXY and concluded that s 11(2) of the Code did not apply.  By operation of s 20(2)(d) of the AIA, the “law in force” at the time of conviction included the potential liability to the mandatory penalty and did not differ from the law applicable at the time the act or omission occurred. [95]–[107].  The Court found that R v HXY and R v PAZ were not plainly wrong and upheld both decisions.  The appeal was dismissed however the reasons note that it may be appropriate for the legislature to revisit the issue. [110]–[111].

K Gover of Counsel

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