R v BNQ - [2016] QDC 113

DISTRICT COURT OF QUEENSLAND

CITATION:

R v BNQ [2016] QDC 113

PARTIES:

R

(Applicant)

v

BNQ

(Respondent)

FILE NO/S:

1379/15

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

Queensland District Court

DELIVERED ON:

12 May 2016 (delivered Ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

9, 12 May 2016

JUDGE:

Moynihan QC DCJ

ORDER:

Section 9(10A) of the Penalties and Sentences Act 1992 (Qld) operates retrospectively and applies even though the offence and conviction happened before the section commenced.

CATCHWORDS:

CRIMINAL LAW – SENTENCING – DOMESTIC VIOLENCE OFFENCE – AGGRAVATING CIRCUMSTANCE - RETROSPECTIVITY – Where the respondent was convicted after trial of three counts of indecent treatment of a child under 16, under 12, under care – Where each offence was a “domestic violence offence” – Where amending legislation provides that the sentencing court must treat the fact that the offence was a “domestic violence offence” as an aggravating circumstance – Where amending legislation was passed after the offences were committed and after the convictions – Whether amendment has retrospective effect – Whether amendment is procedural or substantive.

Criminal Law (Domestic Violence) Amendment Act 2016 (Qld) s 5

Penalties and Sentences Act 1992 (Qld) s 9(10A)

Breeze v R (1999) 106 A Crim R 441

R v Carlton [2010] 2 Qd R 340

R v Flew [2008] QCA 290

R v Koster [2012] QCA 302

R v Pham (2009) 197 A Crim R 246

R v Truong [2000] 1 Qd R 663

Rodway v The Queen (1990) 169 CLR 515

COUNSEL:

V Trafford-Walker for the Applicant

C Bagley for the Respondent

SOLICITORS:

ODPP for the Applicant

Michael Dwyer Solicitor for the Respondent

The defendant was convicted on 1 April 2016 after a trial of three counts of indecent treatment of a child under the age of 16, who was under the age of 12 and under his care, between 31 December 2006 and 30 June 2009.

The indictment states that each offence is a “domestic violence offence” as defined in section 1 of the Criminal Code.

The defendant concedes that each offence is a “domestic violence offence”.

The defendant was remanded in custody and his sentence was adjourned to 9 May 2016 for hearing.

On 5 May 2016, the Criminal Law (Domestic Violence) Amendment Act 2016 (Qld), (the CLDVA), was passed.

Section 5 of the CLDVA amends section 9 of the Penalties and Sentences Act 1992 (Qld), (the PSA), by inserting subsection (10A), which provides:

“In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonably because of the exceptional circumstances of the case.”

The CLDVA does not contain a transitional provision that declares that section 9(10A) of the PSA is to operate retrospectively.

The defendant contends, at his sentence hearing on 9 May 2016, that section 9(10A) of the PSA does not operate retrospectively.

In Rodway v The Queen (1990)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BNQ

Details

AGLC: R v BNQ [2016] QDC 113
Case: [2016] QDC 113
Decision Date: 12 May 2016 (delivered Ex tempore)

CaseChat Overview and Summary

The respondent was convicted, following a trial, of three counts of indecent treatment of a child under 16, a child under 12, and a child under their care. Each of these offences was classified as a "domestic violence offence." The matter came before the court to determine whether the amending legislation that provides for the fact that the offence was a "domestic violence offence" to be treated as an aggravating circumstance applies retrospectively. The amending legislation was passed after the offences were committed and after the convictions were made.

The court had to decide if the amendment had retrospective effect and whether it was procedural or substantive. The respondent argued that the amendment should not apply as it was retrospective and procedural, and therefore in breach of the separation of powers doctrine. The prosecution contended that the amendment was substantive and did not have retrospective effect.

The court held that the amendment operates retrospectively and applies even though the offence and conviction happened before the section commenced. The court found that the amendment was substantive in nature and did not breach the separation of powers doctrine. The court reasoned that the amendment was not retrospective as it did not alter the legal consequences of the offence or punishment, but rather provided a sentencing court with additional information to consider when determining an appropriate sentence.

The court ordered that section 9(10A) of the Penalties and Sentences Act 1992 (Qld) operates retrospectively and applies even though the offence and conviction happened before the section commenced.

Orders

Orders of the court

Section 9(10A) of the Penalties and Sentences Act 1992 (Qld) operates retrospectively and applies even though the offence and conviction happened before the section commenced.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v BNQ [2016] QDC 113
PARTIES:	R (Applicant) v BNQ (Respondent)
FILE NO/S:	1379/15
DIVISION:	Criminal
PROCEEDING:	Application
ORIGINATING COURT:	Queensland District Court
DELIVERED ON:	12 May 2016 (delivered Ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	9, 12 May 2016
JUDGE:	Moynihan QC DCJ
ORDER:	*Section 9(10A) of the Penalties and Sentences Act* 1992 (Qld) operates retrospectively and applies even though the offence and conviction happened before the section commenced**.
CATCHWORDS:	CRIMINAL LAW – SENTENCING – DOMESTIC VIOLENCE OFFENCE – AGGRAVATING CIRCUMSTANCE - RETROSPECTIVITY – Where the respondent was convicted after trial of three counts of indecent treatment of a child under 16, under 12, under care – Where each offence was a “domestic violence offence” – Where amending legislation provides that the sentencing court must treat the fact that the offence was a “domestic violence offence” as an aggravating circumstance – Where amending legislation was passed after the offences were committed and after the convictions – Whether amendment has retrospective effect – Whether amendment is procedural or substantive. Criminal Law (Domestic Violence) Amendment Act 2016 (Qld) s 5 Penalties and Sentences Act 1992 (Qld) s 9(10A) Breeze v R (1999) 106 A Crim R 441 R v Carlton [2010] 2 Qd R 340 R v Flew [2008] QCA 290 R v Koster [2012] QCA 302 R v Pham (2009) 197 A Crim R 246 R v Truong [2000] 1 Qd R 663 Rodway v The Queen (1990) 169 CLR 515
COUNSEL:	V Trafford-Walker for the Applicant C Bagley for the Respondent
SOLICITORS:	ODPP for the Applicant Michael Dwyer Solicitor for the Respondent