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

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

SOLICITORS: Director of Public Prosecutions (Commonwealth) for the
Crown
Lacantro Lawyers for the defendant
20
30
40
50

2 SENTENCE 60

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
20
SENTENCE
30
40
50

3 SENTENCE 60

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

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…

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 Hardy

Details

AGLC: R v Hardy [2009] QDC 413
Case: [2009] QDC 413
Decision Date: 16/12/2009

CaseChat Overview and Summary

In the matter of R v Hardy, the defendant, Mr Hardy, challenged the legality of a sentence that was imposed by the Maroochydore Magistrates Court on 12 February 2008, extending a suspended sentence originally imposed on 3 October 2005. The dispute centred on the retrospective application of sentencing provisions and whether these provisions could be applied to conduct that occurred before their enactment. The case was heard in the relevant court, which had to determine the legal implications of applying the new sentencing laws to a conduct that predated their enactment.

The court was required to decide whether the retrospective operation of the sentencing provisions was valid and whether it could be applied to Mr Hardy's conduct that occurred before the provisions came into effect. This involved examining the legislative intent behind the new provisions and whether they were meant to have retrospective effect. The court also needed to consider whether applying the new sentencing laws to Mr Hardy's conduct would be just and whether it would contravene any constitutional principles.

The court found that the retrospective application of the sentencing provisions was not valid as it contravened constitutional principles that generally prohibit retrospective legislation. The court reasoned that the new sentencing provisions were not intended to have retrospective effect and applying them to conduct that occurred before their enactment would be unjust. The court concluded that Mr Hardy was not liable to be dealt with for the breach of the suspended sentence as extended by the Maroochydore Magistrates Court on the basis that the retrospective operation of the sentencing provisions was invalid.

As a result of the court's decision, Mr Hardy was not subject to any penalties for the breach of the suspended sentence imposed originally on 3 October 2005 and extended on 12 February 2008. The court's decision clarified the boundaries of retrospective operation of sentencing provisions and emphasised the importance of legislative intent and constitutional principles in the application of the law.

Orders

Orders of the court

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.

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 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

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