R v CZN

Case [2021] QSC 182

SUPREME COURT OF QUEENSLAND

CITATION:

R v CZN & Anor [2021] QSC 182

PARTIES:

R
(Respondent)
v
CZN
(First Applicant)

AND

LXE
(Second Applicant)

FILE NO/S:

BS 988 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application pursuant to s 590AA Criminal Code

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

30 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2021

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1.   The applications are dismissed.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – PRESERVATION OF RIGHTS, LIABILITIES AND LEGAL PROCEEDINGS ON AMENDMENT, REPEAL, LAPSING ETC OF ACT OR PROVISION – CONTRARY INTENTION – where the applicants were charged with declared offences and as being a vicious lawless associate under the Vicious Lawless Association Disestablishment Act 2013 (Qld) (“VLAD Act”) – where the applicants had not been sentenced in respect of the relevant offences before the repeal of the VLAD Act by the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) (“SOCLA Act”) – where each applicant submits that a contrary intention appears in the SOCLA Act to displace the application of s 20(2) of the Acts Interpretation Act 1954 (Qld) to the sentencing regime under s 7 of the VLAD Act – whether s 7 of the VLAD Act will apply to the applicants at sentence – whether the regime under ss 245 and 246 of the Penalties and Sentences Act 1992 (Qld) applies to an offender who was sentenced before the repeal of the VLAD Act and to one who is sentenced after the repeal

Acts Interpretation Act 1954 (Qld), s 4, s 14(1), s 20(2)
Penalties and Sentences Act 1992 (Qld), s 13A, s 161O, s 161P, s 161Q, s 161R, s 244, s 245, s 246, sch 1, sch 1C
Serious and Organised Crime Legislation Amendment Act 2016 (Qld), s 282, s 492
Vicious Lawless Association Disestablishment Act 2013 (Qld), s 3, s 5, s 7, s 9, s 11

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, cited
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1, cited
Pfeiffer v Stevens (2001) 209 CLR 57, cited
R v HXY & Ors [2017] QSC 108, distinguished
R v JAA [2019] 3 Qd R 242, distinguished
Sweeney v Fitzhardinge & Ors (1906) 4 CLR 716, cited
Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106, cited

COUNSEL:

A Kimmins and M Longhurst for the First Applicant
S Lynch for the Second Applicant

D Meredith for the Respondent

SOLICITORS:

Gatenby Law for the First Applicant
Dib & Associates for the Second Applicant

Office of the Director of Public Prosecutions for the Respondent

Jackson J:

  1. The question in this case is whether s 7 of the now repealed Vicious Lawless Association Disestablishment Act 2013 (Qld) (“VLAD Act”) will apply to the applicants at sentence in respect of counts…

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R v CZN [2021] QSC 182
Case
[2021] QSC 182
Decision Date

CaseChat Overview and Summary

The case R v CZN involved applicants who were charged with declared offences and as being a vicious lawless associate under the Vicious Lawless Association Disestablishment Act 2013 (Qld). The applicants had not been sentenced in respect of the relevant offences before the repeal of the VLAD Act by the Serious and Organised Crime Legislation Amendment Act 2016 (Qld). Each applicant argued that a contrary intention appeared in the SOCLA Act to displace the application of s 20(2) of the Acts Interpretation Act 1954 (Qld) to the sentencing regime under s 7 of the VLAD Act. The court had to decide whether s 7 of the VLAD Act would apply to the applicants at sentence and whether the regime under ss 245 and 246 of the Penalties and Sentences Act 1992 (Qld) applies to an offender who was sentenced before the repeal of the VLAD Act and to one who is sentenced after the repeal.

The court found that any contrary intention for the purposes of s 4 of the Acts Interpretation Act must appear in the SOCLA Act, not the VLAD Act. It was the purpose of s 492 of the SOCLA Act to repeal the VLAD Act, but nothing in the repealing section, per se, suggests retrospectivity in its operation. The purpose of Part 9D of the PS Act 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". The purpose of Part 14 Division 16 Subdivision 1 of the PS Act inserted by the SOCLA Act was 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. The court held that the provisions and contextual matters support an intention that and a construction of ss 245 and 246 of the PS Act that the provisions intended to replace the regime under the VLAD Act with the equivalent of the 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 extend both to an offender who was sentenced before the repeal of the VLAD Act and to one who is sentenced after the repeal.

The court dismissed the applications, finding that the contrary intention relied upon by the applicants did not arise from the operation of ss 245 and 246 as set out above. The applicants were liable under s 7 to a "further sentence" of 15 years imprisonment if they are a "vicious lawless associate" and a further 10 years imprisonment if they are an "office bearer", if the offender was not sentenced before the repeal of the VLAD Act. However, if the offender was sentenced before the repeal to a further sentence of one or both of the further mandatory periods of imprisonment, they were entitled to apply to reopen the sentence proceeding to that extent. The court was given power to reopen the proceeding and, if it did, 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) of the PS Act.

Orders

Orders of the court

The order of the court is that:

1. The applications are dismissed.

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

The applicant submits that the contrary intention may also be found having regard to the provision in s 11 of the VLAD Act that its operation was to be reviewed by the Minister as soon as reasonably practicable after 3 years after its commencement. The argument must be rejected. First, any contrary intention for the purposes of s 4 of the AI Act must appear in the SOCLA Act, not the VLAD Act. Second, a provision that an Act must be reviewed by a stated time is not uncommon in modern legislation in Queensland. It does not have the effect that the Act expires at that time, as the applicant seemed to imply in written submissions.Conclusion In this context, the meaning to be ascertained is informed by a number of contextual points that are relevant to objectively ascertaining Parliament’s intention in passing the SOCLA Act as to any continued operation of the VLAD Act. It was undoubtedly the purpose of s 492 of the SOCLA Act to repeal the VLAD Act, but nothing in the repealing section, per se, suggests retrospectivity in its operation. Second, as a matter of wider context, the purpose of Part 9D of the PS Act 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”. Third, it was also the purpose of Part 14 Division 16 Subdivision 1 of the PS Act inserted by the SOCLA Act 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. Fourth, the Minister moving the second reading of the bill for the SOCLA Act stated that “[t]he VLAD Act is excessive and disproportionate… The bill replaces 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”.[20][20] Hansard, 13 September 2016, p 3403. I put to one side the argument that a contrary intention under s 4 of the Acts Interpretation Act 1954 (Qld) must appear “in” the Act in question, excluding reliance upon extrinsic materials: C & E Pty Ltd v CMC Brisbane Pty Ltd [2004] 2 Qd R 244. These provisions and contextual matters may support an intention that and a construction of ss 245 and 246 of the PS Act that the provisions intended to replace the regime under the VLAD Act with the equivalent of the 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 extend both to an offender who was sentenced before the repeal of the VLAD Act and to one who is sentenced after the repeal. It must be acknowledged that such a construction of ss 245 and 246 would yield a clumsy or anomalous procedure for the sentencing of a vicious lawless associate after the repeal, where first the defendant would be sentenced to the further sentence provided for under s 7 of the VLAD Act and then the sentence would be reopened and reduced under ss 245 and 246 of the PS Act.

Ratio Decidendi

Legal Principle Established

In R v JAA,[3] it was decided that an applicant in a similar position to the applicants in the present case fell to be punished under s 7 of the VLAD Act, the liability and penalty for which were preserved by s 20(2) of the AI Act. That section provides:[3] [2019] 3 Qd R 242.“20 Saving of operation of repealed Act etc.(1) In this section—Act includes a provision of an Act.repeal includes expiry.(2) The repeal or amendment of an Act does not—(a)…(b)affect the previous operation of the Act or anything suffered, done or begun under the Act; or(c)affect a right, privilege or liability acquired, accrued or incurred under the Act; or(d)affect a penalty incurred in relation to an offence arising under the Act; or(e)affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d)…” The question considered in JAA is not the same one as the applicants advance in the present case.[4] However, it must be acknowledged that the effect of the applicants’ contention in this case runs contrary to the result in that case.[4] Note, however, the reference to the relevant provisions of the PS Act at [2019] 3 Qd R 242, 245 [73] and footnote 1. The contrary intention relied upon is submitted to arise from the operation of ss 245 and 246 as set out above. According to the result in JAA, and subject to exceptions not presently relevant,[5] an offender such as JAA or the applicants who commits a declared offence is liable under s 7 to (and the court must impose) a “further sentence”[6] of 15 years imprisonment if they are a “vicious lawless associate”[7] and a further 10 years imprisonment if they are an “office bearer”[8], if the offender was not sentenced before the repeal of the VLAD Act. However, if the offender was sentenced before the repeal to a further sentence of one or both of the further mandatory periods of imprisonment, they were 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) of the PS Act. [5] Such as reduction of the sentence under s 13A of the Penalties and Sentences Act 1992 (Qld) – see Vicious Lawless Association Disestablishment Act 2013 (Qld), s 9.[6] Vicious Lawless Association Disestablishment Act 2013 (Qld), s 3 definition “further sentence”.[7] Vicious Lawless Association Disestablishment Act 2013 (Qld), s 5.[8] Vicious Lawless Association Disestablishment Act 2013 (Qld), s 3 definition “office bearer”. That section provides:“161R Court must impose term of imprisonment(1) This section applies to the sentencing of an offender convicted of a prescribed offence committed with a serious organised crime circumstance of aggravation.(2) The court must impose on the offender a term of imprisonment consisting of the following components—(a)a sentence of imprisonment for the prescribed offence imposed under the law apart from this part and without regard to the following (the base component)—(i)the sentence that must be imposed on the offender under paragraph (b);(ii)the control order that must be made for the offender under section 161V;(b)(other than if a sentence of life imprisonment is imposed as the base component or the offender is already serving a term of life imprisonment) a sentence of imprisonment (the mandatory component) for the lesser of the following periods—(i) 7 years;(ii)the period of imprisonment provided for under the maximum penalty for the prescribed offence.”