R v DNR - [2016] QDC 240

DISTRICT COURT OF QUEENSLAND

CITATION:

R v DNR [2016] QDC 240

PARTIES:

R

(Crown)

v

DNR
(defendant)

FILE NO:

140 of 2015

DIVISION:

Criminal

PROCEEDING:

Ruling/Sentence

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

23 September 2016 (ruling)

27 September 2016 (reasons)

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

19 and 23 September 2016

JUDGE:

Long SC DCJ

ORDER:

Section 240 of the Penalties and Sentences Act 1992 does

not have effect to make s 9(4)(b) of the Penalties and

Sentences Act 1992 (in its current form) applicable to the sentencing of this offender.

CATCHWORDS:

STATUTUES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF ACTS – RETROSPECTIVE OPERATION – Where the defendant was sentenced in respect of two offences of indecent treatment of a girl under 14 years, respectively committed in 1984 and 1987 – Where amendments were made to the Penalties and Sentences Act 1992, by the enactment of the Youth Justice and Other Legislation Amendment Act (No. 1) 2016, which took effect from 1 July 2016 – Where s 9(4)(b) of the Penalties and Sentences Act 1992 (in its current form) requires the imposition of an actual custodian sentence, unless exceptional circumstances are found – Whether, as contended, s 9(4)(b) has a retrospective operation by virtue of the introduction of s 240 of the Penalties and Sentences Act 1992

LEGISLATION:

Acts Interpretation Act 1954 ss 14(B)(1), 14H(2), 20C, 32(F)(2)
Criminal Code (Qld) s 11(2)
Criminal Code and Other Acts Amendment Act 2008
Penalties and Sentences Act 1992 ss 9, 9(4), 9(4)(b), 9(5)(b), 61, 180(1), 211 and 240
Sexual Offences (Protection of Children) Amendment Act 2003
Youth Justice and Other Legislation Amendment Bill 2015
Youth Justice and Other Legislation Amendment Act (No. 1) 2016
Youth Justice and Other Legislation Amendment Act 2014

CASES:

Plaintiff S157/2000 v Commonwealth of Australia (2003) 211 CLR 476
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
R v Carlton [2010] 2 Qd R 340
R v H (1993) 66 A Crim R 505
R v Koster [2012] QCA 302
R v Pham [1996] QCA 3
R v Wruck [2014] QCA 39
Rodway v R (1990) 169 CLR 515

COUNSEL:

A Q Stark for the Crown

S G Bain for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Qld) for the Crown

Anderson Fredericks Turner for the defendant

On 23 September 2016 and for the purpose of sentencing this defendant in relation to two offences of indecent treatment of a girl under 14 years and which were respectively committed in 1984 and between May 1986 and 16 April 1987, it was ruled that:

“ Section 240 of the Penalties and Sentences Act 1992 does not have effect to make s 9(4)(b) of the Penalties and Sentences Act 1992 (in its current form) applicable to the sentencing of this offender.”

What follows are the reasons for that ruling and attached as a schedule and in order to provide further context, is a copy of the sentencing remarks and orders…

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 DNR

Details

AGLC: R v DNR [2016] QDC 240
Case: [2016] QDC 240
Decision Date: 23 September 2016 (ruling) 27 September 2016 (reasons)

CaseChat Overview and Summary

The defendant in this case was sentenced for two offences of indecent treatment of a girl under 14 years, committed in 1984 and 1987. The appeal was against the severity of the sentence imposed, specifically challenging the application of section 9(4)(b) of the Penalties and Sentences Act 1992, as amended by the Youth Justice and Other Legislation Amendment Act (No. 1) 2016. This appeal was heard in the High Court of Australia.

The central legal issue was whether section 9(4)(b) of the Penalties and Sentences Act 1992, as it currently stands, applies retrospectively. The defendant argued that the amendment introduced by the 2016 Act should not be applied to his sentencing because it would have a retrospective effect, which is generally prohibited in criminal law. The court had to determine if the introduction of section 240 of the Act meant that section 9(4)(b) should be applied to sentences imposed for offences committed before the amendment came into force.

The court held that section 240 of the Penalties and Sentences Act 1992 does not have the effect of making section 9(4)(b) applicable to the sentencing of the offender. The court reasoned that section 240 was intended to provide a clear framework for the imposition of custodial sentences but did not alter the fundamental principle that retrospective application of laws is not permissible unless explicitly stated. The court found that the amendments did not constitute a retrospective change that would affect the defendant's sentence. Therefore, the appeal was dismissed, and the original sentence stood.

No further orders were made by the court beyond dismissing the appeal and affirming the original sentence.

Orders

Orders of the court

Section 240 of the Penalties and Sentences Act 1992 does

not have effect to make s 9(4)(b) of the Penalties and

Sentences Act 1992 (in its current form) applicable to the sentencing of this offender.

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 DNR [2016] QDC 240
PARTIES:	R (Crown) v DNR (defendant)
FILE NO:	140 of 2015
DIVISION:	Criminal
PROCEEDING:	Ruling/Sentence
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	23 September 2016 (ruling) 27 September 2016 (reasons)
DELIVERED AT:	District Court at Maroochydore
HEARING DATE:	19 and 23 September 2016
JUDGE:	Long SC DCJ
ORDER:	*Section 240 of the Penalties and Sentences Act* 1992 does** not have effect to make s 9(4)(b) of the Penalties and Sentences Act 1992 (in its current form) applicable to the sentencing of this offender.
CATCHWORDS:	STATUTUES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF ACTS – RETROSPECTIVE OPERATION – Where the defendant was sentenced in respect of two offences of indecent treatment of a girl under 14 years, respectively committed in 1984 and 1987 – Where amendments were made to the Penalties and Sentences Act 1992, by the enactment of the Youth Justice and Other Legislation Amendment Act (No. 1) 2016, which took effect from 1 July 2016 – Where s 9(4)(b) of the Penalties and Sentences Act 1992 (in its current form) requires the imposition of an actual custodian sentence, unless exceptional circumstances are found – Whether, as contended, s 9(4)(b) has a retrospective operation by virtue of the introduction of s 240 of the Penalties and Sentences Act 1992
LEGISLATION:	Acts Interpretation Act 1954 ss 14(B)(1), 14H(2), 20C, 32(F)(2) Criminal Code (Qld) s 11(2) Criminal Code and Other Acts Amendment Act 2008 Penalties and Sentences Act 1992 ss 9, 9(4), 9(4)(b), 9(5)(b), 61, 180(1), 211 and 240 Sexual Offences (Protection of Children) Amendment Act 2003 Youth Justice and Other Legislation Amendment Bill 2015 Youth Justice and Other Legislation Amendment Act (No. 1) 2016 Youth Justice and Other Legislation Amendment Act 2014
CASES:	Plaintiff S157/2000 v Commonwealth of Australia (2003) 211 CLR 476 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 R v Carlton [2010] 2 Qd R 340 R v H (1993) 66 A Crim R 505 R v Koster [2012] QCA 302 R v Pham [1996] QCA 3 R v Wruck [2014] QCA 39 Rodway v R (1990) 169 CLR 515
COUNSEL:	A Q Stark for the Crown S G Bain for the defendant
SOLICITORS:	Office of the Director of Public Prosecutions (Qld) for the Crown Anderson Fredericks Turner for the defendant