R v Hardy

[2009] QDC 413

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Hardy [2009] QDC 413
PARTIES:	R V BRADLEY ERNEST HARDY
FILE NO/S:	Indictment No. 1624 of 2009 DIS – 00003735/09(5)
DIVISION:	Criminal
PROCEEDING:	Sentence
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED ON:	16 December 2009 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	16 December 2009
JUDGE:	Irwin DCJ
ORDER:	The defendant is not liable to be dealt with for breach of suspended sentence imposed originally on 3 October 2005, as extended by the Maroochydore Magistrates Court on 12 February 2008, by reason of the commission of the offence by him on 17 April 2008, on which he was convicted by a jury on 10 December 2009.
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – RETROSPECTIVE OPERATION – where the relevant sentencing provisions changed between the time when the offence was committed and the time of sentencing to clarify that a court may deal with an offender who re-offends during the extended operational period of a suspended sentence – whether the amendments altered substantive or procedural provisions – whether amendments had retrospective operation
Criminal Code and other Acts Amendment Act 2008 (Qld)
Penalties and Sentences Act 1992 (Qld), s 144, s 146, s 146A, s 147, s 148
R v Breeze (1999) 160 A Crim R 441, cited R v Carlton [2009] QCA 241, cited R v GT [2005] QCA 478, cited R v Hay [2009] QDC 333, applied

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R v Lam [2006] QCA 560, cited

R v Muller [2006] QCA 147, cited

R v Troung [2000] 1 Qd R 663, cited

COUNSEL:  J.N. Hanna for the Crown
N.V. Weston for the defendant

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SOLICITORS:	Director of Public Prosecutions (Commonwealth) for the Crown
Lacantro Lawyers for the defendant

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DISTRICT COURT	1
CRIMINAL JURISDICTION
JUDGE IRWIN
Indictment No 1624 of 2009 DIS-00003735/09(5)
THE QUEEN	10
v.
BRADLEY ERNEST HARDY CAIRNS ..DATE 16/12/2009
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SENTENCE
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3 SENTENCE 60

HIS HONOUR: The Crown has submitted in this case that in

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sentencing Mr Hardy, who on 10 December 2009 was found guilty
by a jury of one count of failing to appear contrary to
section 30, subsection (1), paragraph (a) of the Australian
Crime Commission Act 2002, I should activate a suspended

period of imprisonment that was imposed upon him on the 3rd of	10
October 2005, and which has subsequently been extended as a result of a breach committed within the original operational period.
The basis of this submission is that the offence on which the	20
offender has been convicted before me was committed within the extended operational period, and therefore involved another breach of the order.
The original suspended sentence was imposed by a Magistrates	30
Court but it is accepted by both parties, in accordance with
the law, that I have jurisdiction to deal with any breach
arising out of that sentence, unless I consider it is in the
interests of justice for the offender to be dealt with by the
Magistrates Court. I have not come to that position.	40
My response to this argument from the Crown will be relevant
to my ultimate sentence of the defendant. Logically, I should
proceed to sentence him for the offence for which he was
convicted by the jury, and then, if I have power to do so,	50

consider what approach I should take as a result of the breach
of the suspended sentence during the operational period.
The current issue that arises for consideration is as to 4 SENTENCE 60

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whether I have power to activate the suspended period of
imprisonment in circumstances which I will outline in a
moment. The submission by Mr Weston on behalf of his client

is that I have no such power.

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With the assistance of the Crown outline, I commence by
setting out the chronology of this matter. On the 3rd of
October 2005, as I have mentioned, the defendant was convicted
and sentenced by the Maroochydore Magistrates Court for

offences of entering a dwelling with intent by break, stealing	20
and entering premises with intent by break. These offences were committed between the 25th of December 1994 and the 28th of December 1994.
Mr Hardy was sentenced to six months' imprisonment. Pursuant	30
to section 144 of the Penalties and Sentences Act that sentence was wholly suspended for a period of 18 months. The operational period of the suspended sentence concluded on 2 April 2007.
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On 12 February 2008 he was convicted and sentenced by the
Maroochydore Magistrates Court for one offence each of
possessing dangerous drugs, and possessing utensils or pipes.
Those offences were committed on 31 January 2007, within the
operational period. It is accepted that they are relatively	50
minor examples of those type of offences.

Mr Hardy was sentenced to a fine for the subsequent offences, but since they were committed during the operational period of 5 SENTENCE 60

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the suspended sentence imposed for the original offences, the
Court, being required by section 146 to deal with the offender
under section 147 for the breach of the suspended sentence,
ordered that he be subject to a further stated operational

period of six months for the suspended sentence of	10
imprisonment.
The offence for which the defendant was convicted by a jury
before me was committed on 17 April 2008, less than three
months into the extended operational period which had been	20
imposed on 12 February 2008. I note, for completeness, that that extended operational period has now expired.
The prosecution accepts that the present offence for which I
am sentencing Mr Hardy was committed before the enactment of	30
the Criminal Code and Other Acts Amendment Act 2008, which, to my recollection, came into force on 1 December 2008.
As is conceded by the prosecution pursuant to the decisions of
the Court of Appeal in The Queen v Muller [2005] QCA 147 and	40
The Queen v Lam [2006] QCA 560, before the passing of the
amending Act, it was not possible for the Court to deal with
an offender such as Mr Hardy under section 146 for a suspended
sentence of imprisonment if the breaching offence was
committed during a further stated operational period but not	50

within the original operational period. The amending Act was
passed after the commission of the present offence for which I
am sentencing Mr Hardy but before he was convicted.
16122009 T(1)15/ALW(CAI) BRIS12 (Irwin DCJ) 6 SENTENCE 60

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In these circumstances, the prosecution submits that I have
the power to activate the suspended sentence on the basis of
the amending Act. The prosecution accepts there is no binding

authority on whether the amendments to sections 146 and 147

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operate retrospectively such that the Court is required to a case that is on all fours with the present case. In that
deal with the present offender under the amended version of
section 146. Fairly, I am referred to the decision of Judge

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case, his Honour held that the amendments were not simply
procedural but affected the offender's substantive rights.

In such circumstances, his Honour held that the amendment was presumed not to have retrospective effect unless the intention

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for it appears with reasonable certainty, citing in support
the decision of Atkinson J in The Queen v GT [2005] QCA 478,
and a construction of the amendments that avoids retrospective
application of penal consequences should be preferred. His

Honour held there was no clear intention in the amending Act

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for the amendments to be applied retrospectively. He
therefore held that the offender must be dealt with in
accordance with the law prevailing at the time, a further
extended operational period was imposed, following The Queen v

Muller.

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However, 22 days after his Honour's decision, the Court of
Appeal delivered its decision in The Queen v Carlton [2009]
QCA 241. In that case, Chesterman JA, with whom Mullins J
16122009 T(1)15/ALW(CAI) BRIS12 (Irwin DCJ) 7 SENTENCE 60

agreed, held that it should not necessarily be inferred that	1
the amending Act did not have retrospective effect. The Court in that case, dealing with separate amendments effected by the amending Act which involved amendment to section 9 of the
Penalties and Sentences Act so as to make the last resort

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principle inapplicable in sentencing for offences involving
child exploitation material, held that those amendments to
sentencing law had retrospective effect and applied to
sentencing for offences committed before the amendments were

introduced. The prosecution submits that I should apply the

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decision in that case to the different amendments made by the

same Act with which I am currently concerned.

Mr Hanna, the Crown Prosecutor, reminds me that in Muller,

Jerrard JA held that construing section 146(1) to include the

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operational period of an order made under section 144 as
extended by an order made under section 147 would be a
construction best achieving the purpose of the Act. Although
I note that that is not the law as Jerrard JA interpreted it

at that time. Reference is also made to the explanatory notes

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to the amending Act that state, "The amendments to section
146, 146A and 147 clarify that a Court may deal with an
offender who re-offends during an extended operational period

of a suspended sentence."

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On the basis of this, the prosecution contends that it has
always been consistent with the purpose of part 8 of the
Penalties and Sentences Act, that offenders are to be dealt
with under section 147 when an offence is committed during an
16122009 T(1)15/ALW(CAI) BRIS12 (Irwin DCJ) 8 SENTENCE 60

extended operational period. The amendment merely clarifies	1
that that is how the provisions are intended to operate. It is contended that the clear intention of the amending Act is to allow Courts to give real effect to orders that have been made under section 147(1)(a), in the past so that statements

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that have been made by judicial officers when sentencing
defendants about the consequences of committing another
offence during an extended operational period are not just
hollow gestures, and that therefore such sentences will take

effect as they were meant to and as the defendant would have

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understood the position to be.

It is submitted that this means that the amendments operate retrospectively in allowing the Court to deal with a breach of a further operational period, even though the law at the time

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of the breach as stated in Muller's case didn't provide for
that to occur. It is submitted that a retrospective effect of
the amendments to section 146, 146A and 147 is consistent with
the purpose of the amendments, consistent with the purpose of

part 8 and consistent with the construction given in The Queen

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v Carlton to other amendments introduced by the amending Act.

It is therefore submitted that if I accept this construction, the consequence would be that I am required to proceed under the present version of 146(1) to deal with the offender under

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section 147 for the breach of the further stated operational
period imposed on him on the 12th of February 2008 unless, as
I have already indicated, I considered that it is in the
interests of justice for the offender to be dealt with by the
16122009 T(1)15/ALW(CAI) BRIS12 (Irwin DCJ) 9 SENTENCE 60

Magistrates Court.	1
In response, Mr Weston on behalf of Mr Hardy submits that the amending Act is not retrospective, there is no binding authority on me that establishes this, and that there is

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nothing on the face of the amending legislation which points
to an intention that it be retrospective.

He submits that the amendments to sections 146 to 148 are substantive and not procedural, and makes the point that if it

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was intended that they be retrospective, there must be a clear
legislative statement to this effect.

He submits that Carlton is confined to its own facts because it deals with procedural matters under section 9 of the

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Penalties and Sentences Act, which are matters which merely purport to establish guidelines and criteria by which the Court should exercise its sentencing discretion by having regard to those guidelines and criteria in determining the appropriate sentence.

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He submits that it is clear from the Judgment of at least the majority in Carlton's case that their decision was based on the fact that section 9 was a procedural section, whereas in contrast he submits that the sections with which I am

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concerned are substantive in nature because they require the therein outlined in determining whether a particular punishment should be enlivened.

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16122009 T(1)16/MT(CAI) BRIS2 (Irwin DCJ)

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He concedes that while I am not sentencing afresh as the Court of Appeal has clearly decided in The Queen v Skinner, the question of whether to activate whole or part of the sentence involves a significant infringement of the liberty of the

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defendant and therefore the provisions relate to substantive
matters.

He submits in particular that rather than simply involving a re-arrangement of principles and guidelines, the amendments

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empower the Court to impose a punishment that has not already
been imposed. As he submits, under the statute as it was at
the time that the operational period was extended and the time
that the present offence was committed, Mr Hardy could not be

re-sentenced whatever the legislative intent may have been

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which was not reflected in the legislation.

He submits that he has now been placed in jeopardy of having the sentence activated which was a situation which did not exist when he breached the suspended sentence in 2008. I

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agree with Mr Weston that although the Court of Appeal in amending Act were retrospective in nature, it proceeded on the basis that those provisions related to the procedure pertinent to sentencing.

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For example, in the Judgment of Chesterman JA, with reference
to an earlier decision of the Court of Appeal in The Queen v

Truong [2000] 1 QR 663, his Honour said at paragraph 59, "The

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16122009 T(1)16/MT(CAI) BRIS2 (Irwin DCJ)

Judgment in Truong proceeded on the basis that these remarks	1
are apposite to the procedure pertinent to sentencing: to paraphrase, "a person who commits a crime does not have a right to be sentenced in any particular way, merely a right to
be sentenced according to the practice and procedure

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prevailing at the time of sentence."

At paragraph 88 the point is made clearly when discussing the
Judgment of the Court of Appeal in the case of Breeze [1999]

106 ACR 441. In relation to this his Honour said, "The point

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made was that laws relating to the substantive matters taken
into account in determining the level of sentence are...
substantive or arguably so. This is to suggest that a change

to section 9 is a change of substantive law.

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I respectfully disagree and would follow and endorse the
categorisation given in Truong. What the section does is to
identify factors, but not all factors to which a Court must
have regard when imposing a sentence. The actual imposition

of a sentence is an exercise of discretion. Section 9 seeks to

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regulate the manner in which the discretion is to be exercised
by an identification and weighing of factors to be taken into

account and balanced.

A change to the factors or a re-ordering of their priorities

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is not, in my opinion, properly described as changing a sentencing. To add to or subtract from the list of factors to

substantive law. It affects only the manner in which the

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16122009 T(1)16/MT(CAI) BRIS2 (Irwin DCJ)

be considered, even the removal of a factor normally regarded	1
as important as a plea of guilty would not, in my opinion, affect an alteration to the substantive law of sentencing."
On the other hand, so far as the sections in the amending Act

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that I am now considering are concerned, I consider that they
go beyond the manner in which Judges go about exercising the
discretionary power of sentencing and to adopt what was said
by Judge Dearden at paragraph 20 in Hay: "...the amendment to

the Penalties and Sentences Act section 147 operative as of 1

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December 2008 (and the associated amendments to earlier sections) was not simply a procedural amendment. It clearly affected substantive rights, that is whether or not a defendant is liable to serve all or some portion of a prison sentence otherwise subject to suspension. It is clearly

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amending legislation which affects an existing right or

obligation."

I also adopt what his Honour then said at paragraph 21 as

follows, "Consequently as a substantive law amendment, rather	40
than a procedural law amendment, it is presumed not to have a retrospective effect, unless the intention for it so to apply appears with reasonable certainty". It is that proposition
that is supported by reference to the judgment of Atkinson J
in The Queen v GT.	50

I also agree with his Honour that the amendment Act does not implicitly or explicitly seek to impose a retrospective operation with respect to the amended definition of 4-13 SENTENCE 60

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"subsequent offence" in section 147(5) of the Penalties and

Sentences Act.

I also conclude that there is no clear intention for the

amendment to be applied retrospectively. Any ambiguity,	10
especially given the penal consequences to which the defendant is exposed, should be construed to favour non-retrospectivity, again, with reference to the judgment of Atkinson J at
paragraph 28 in The Queen v GT.
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Like Judge Dearden, I do not consider there is any ambiguity, but if any ambiguity arguably exists, the non-retrospective operation of the legislation is to be preferred
Consequently, I find that Mr Hardy is not liable to be dealt	30
with for breach of the suspended sentence imposed originally
on the 3rd of October 2005, as extended by the Maroochydore
Magistrates Court on the 12th of February 2008, by reason of
the commission of the offence by him on 17 April 2008, on
which he was convicted by a jury on 10 December 2009. On that	40
basis I will proceed to sentence Mr Hardy for the offence of which he was convicted before me.
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