R v CLN - [2016] QDC 111

DISTRICT COURT OF QUEENSLAND

CITATION:

R v CLN [2016] QDC 111

PARTIES:

THE QUEEN

v

CLN

FILE NO/S:

511 of 2016

DIVISION:

Criminal

PROCEEDING:

Sentence

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

12 May 2016 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2016

JUDGE:

Jones JDC

COUNSEL:

S J Hedge for the Crown

C Reid for the Defendant

SOLICITORS:

Office of Director of Public Prosecutions for the Crown

Wallace Davies Solicitors for the Defendant

HIS HONOUR: In this case I was required to make a preliminary ruling concerning recent legislative amendments. I made my ruling and indicated that I would give brief reasons today if possible, and these are indeed those reasons.

The defendant in this case pleaded guilty to one count of rape and three counts of assault occasioning bodily harm in circumstances where all of the offences were deemed to be domestic violence offences. Those offences were committed on 17 October 2015. On 5 May 2016, the Criminal Law (Domestic Violence) Amendment Act 2016 was passed. Section 5 of that Act amended section 9 of the Penalties and Sentences Act 1992 relevantly by inserting a new subsection 10A which provided:

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 reasonable because of the exceptional circumstances of the case.

The Domestic Violence Amendment Act does not contain any transitional provisions that stated that the amendment was to act retrospectively. At the sentence before me today, the defendant contended that section 9 subsection (10A) did not operate retrospectively and the Crown submitted to the contrary. The issue then came down to deciding whether, in reality, the amendment was one of a procedural nature or whether it went to substantive matters affecting the rights and obligations of the defendant. If it was the former, it might well have a retrospective effect. If it is the latter, then the defendant would be sentenced under the regime that existed at the time.

Coincidentally, Judge Moynihan, in the matter of R v BNQ, handed down reasons today dealing with the same matter. I have had the opportunity to read his reasons and can indicate that I agree, not only with his conclusion, which was the same as mine, but I also agree with his reasoning. His Honour has informed me that he intends to publish those reasons on the court website and, in those circumstances I consider it is only necessary for me to make some further brief comments.

Reliance on the part of the defence was placed on a passage of the Court of Appeal decision of R v Breeze [1999] QCA 303, where, in paragraphs 9 and 10, it was said in part:

The decision in Truong was contrary to the decision in Mallard and White (CA numbers 450, 452 of 1997, 17 April 1998). Truong should…

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 CLN

Details

AGLC: R v CLN [2016] QDC 111
Case: [2016] QDC 111
Decision Date: 12 May 2016 (delivered ex tempore)

CaseChat Overview and Summary

The District Court of Queensland was asked to decide a matter concerning the retrospective application of a recent legislative amendment to the Penalties and Sentences Act 1992. The defendant pleaded guilty to domestic violence offences and the Crown argued that the new sentencing guidelines, which require courts to treat domestic violence as an aggravating factor, should be applied. The defendant argued that the amendment did not apply retrospectively. The court had to determine whether the amendment was procedural or substantive in nature to decide if it should be applied to the defendant's case.

The court considered the relevant legal principles in determining whether the amendment was procedural or substantive. The court noted that, in previous cases, the Court of Appeal had held that amendments to the factors to be considered in sentencing were procedural, not substantive, because they related to the manner in which the sentencing discretion was to be exercised, rather than changing the substantive law. The court also considered the explanatory notes of the amendment, which stated that an aggravating factor increased the culpability of the offender and would result in a higher sentence. The court concluded that the amendment was procedural because it required a particular matter to be considered as an aggravating factor, but the actual imposition of a sentence still involved the exercise of a discretion.

The court agreed with Judge Moynihan's reasoning in a similar case, R v BNQ, and concluded that the amendment was procedural and should be applied to the defendant's case. The court noted that domestic violence was often considered an aggravating feature because it involved an assault by an assailant on a victim who would ordinarily trust that assailant not to behave in such a way.

The court did not make any final orders in this case, as it was only required to make a preliminary ruling concerning the retrospective application of the legislative amendment. However, the court's decision meant that the defendant's sentence would be determined under the new sentencing guidelines.

Orders