R v CZN & Anor

The question in this case was whether s 7 of the now repealed Vicious Lawless Association Disestablishment Act 2013 (“VLAD Act”) would apply to the applicants at sentence for two relevant offences, each of which was a “declared offence” within the meaning of the VLAD Act. In this ex tempore decision, his Honour Justice Jackson examines whether the provisions and context of the Serious Organised Crime Legislation Amendment Act 2016 (“SOCLA”) support an intention, contrary to s 20(2)(b) of the Acts Interpretation Act 1954 (“AIA”), that the repeal of the VLAD Act operates retrospectively. His Honour held that notwithstanding the anomalies that arose from the operation of the provisions (which were likely a drafting oversight) no actual contrariety was apparent.

Jackson J

30 July 2021 (delivered ex tempore)

Section 7 VLAD Act imposed liability upon a person, who committed a declared offence, to a “further sentence” of 15 years’ imprisonment if he or she was a “vicious lawless associate”, and a further 10 years’ imprisonment if he or she was an “office bearer”. [2].

Section 7 was repealed by s 492 SOCLA Act. [3].

No express provision was made in the SOCLA Act about the application of the VLAD Act, including s 7, to a person who was to be sentenced in relation to a declared offence after its repeal. [3].

However, transitional provisions for repeal of the VLAD Act were inserted into the Penalties and Sentences Act 1992 (“PSA”) by the insertion of a new Pt 14, Div 16. [4].

By those amendments, if the offender was sentenced before the repeal to a further sentence of one or both of the further mandatory periods of imprisonment, the offender was 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) PSA. [9]. That is to say, the further sentence must be reduced to either 7 years’ imprisonment or the maximum period provided for as punishment of the offence, whichever is the lesser. [11], [16].

Arguments in support of the application

Each applicant submitted that s 7 did not apply to their sentences, which would take place after the repeal of the VLAD Act.

Each submitted 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 transitional provisions gave rise to a “contrary intention” within the meaning of s 4 AIA which displaces the application of s 20(2) AIA which otherwise would preserve the liability and penalty created under s 7 VLAD Act. [6].

That contrary intention was submitted to arise out of an anomaly created by the operation of ss 245–246 PSA (at [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 [PSA] but an offender who is sentenced after the repeal in otherwise identical circumstances must be sentenced to the further 15 or 25 year periods”.

Decision

Justice Jackson accepted that the partial retrospective change in the law as to the punishment that applies to a declared offence committed by a vicious lawless associate created an anomaly: one which was likely to have been “a drafting oversight or mistake”. [18].

His Honour also accepted that construing the repeal of s 7 VLAD Act to have retrospective operation would “remove that anomaly”. However, “it would create another anomaly of a similar kind”. [16]. Namely,

“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) [PSA] … ” [16].

His Honour emphasised that the “precise question” for decision was whether the anomaly and other relevant constructional indicators are such that a contrary intention to the application of s 20(2)(d) AIA could be discerned. The accepted principle is that “actual contrariety must be apparent”. It cannot appear from mere conjecture. [20].

In ascertaining Parliament’s intention in passing the SOCLA Act as to any continued operation of the VLAD Act, his Honour noted that there were four “contextual points” of relevance (at [22]):

1. It was undoubtedly the purpose of s 492 SOCLA Act to repeal the VLAD Act, but nothing in the repealing section per se suggests retrospectivity in its operation.

2. As a matter of wider context, the purpose of Pt 9D PSA 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”.

3. It was also the purpose of Pt 14 Div 16 Subdiv 1 PSA 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.

4. The Minister moving the second reading of the SOCLA bill stated that, “[t]he VLAD Act is excessive and disproportionate … The bill replaced 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”.

His Honour reasoned that although these provisions and contextual matters may support an intention that ss 245 and 246 extended both to an offender who was sentenced before and after the repeal of the VLAD Act, the SOCLA Act does not evidence the “actual contrariety that must be apparent” to displace the application of s 20(2)(d) AIA. [25].

Disposition

The application was dismissed. [26].

Z Brereton of Counsel