R v HXY

Case [2017] QSC 108

SUPREME COURT OF QUEENSLAND

CITATION:

R v HXY & Ors [2017] QSC 108

PARTIES:

THE QUEEN

(respondent)

v
HXY, CEV and AQL

(applicants)

FILE NO/S:

BS No 77 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2017

JUDGE:

Douglas J

ORDER:

The applications are refused.

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 – APPLICATION TO OFFENCES – where defendants charged with offences with circumstances of aggravation supplied by Vicious Lawless Association Disestablishment Act 2013 (‘VLAD Act’) – where VLAD Act repealed prior to proceedings – whether s 20 of Acts Interpretation Act applies to permit proceeding to continue and for penalty to be imposed as though repeal had not occurred

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – REPEAL – EFFECT – GENERALLY – whether offence under Criminal Code includes within its definition circumstances of aggravation charged in respect of the offence – whether s 11(1) Criminal Code applies to offences where Act providing circumstances of aggravation is repealed – when person ‘charged’ with offence – whether s 11(2) Criminal Code applies to limit punishment available upon conviction – whether s 180 Penalties and Sentences Act applies to reduce the maximum sentences for alleged offences – whether 161Q Penalties and Sentences Act applicable to punishments for alleged offences

Criminal Code (Qld), ss 11, 36, 56, 229J, 328A, 554, 557, 558, 560, 562, 564, 567, 568, 569, 570, 572, 575, 576, 614, 651
Acts Interpretation Act 1954, s 20
Drugs Misuse Act 1986, s 5
Justices Act 1886, s 42
Penalties and Sentences Act 1992, ss 161O, 161P, 161Q, 161R, 180
Serious and Organised Crime Legislation Amendment Act 2016, ss 244, 245, 279, 282, 492
Vicious Lawless Association Disestablishment Act 2013, ss 3, 5, 7

Coco v The Queen (1994) 179 CLR 427 cited

Commissioner of Taxation v Price [2006] 2 Qd R 316; [2006] QCA 208 applied
Kingswell v The Queen (1985) 159 CLR 264 cited
Mansray v Rigby (2014) 292 FLR 404 cited
Perlman v Perlman (1984) 155 CLR 474 cited
Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 cited
R v Aniezue [2016] ACTSC 82 cited
R v Barlow (1997) 188 CLR 1; [1997] HCA 19 cited
R v Brancourt (2013) 280 FLR 356 cited
R v Graham [2016] QCA 73 considered
R v Phillips and Lawrence [1967] Qd R 237 considered
R v Ronen [2005] NSWSC 991 cited
R v Ronen [2006] NSWCCA 123; (2006) 161 A Crim R 300 cited
R v Wyles; Ex parte Attorney-General [1977] Qd R 169 cited
Rosser v Donges [1990] 1 Qd R 490 cited

Woodward v The Queen [2017] NSWCCA 44 cited

COUNSEL:

B J Power for the applicant HXY
D J Walsh for the applicant CEV
E P Mac Giolla…

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Details
AGLC
R v HXY [2017] QSC 108
Case
[2017] QSC 108
Decision Date

CaseChat Overview and Summary

In the case of R v HXY, the applicants were indicted on various drug-related charges, with circumstances of aggravation supplied by the Vicious Lawless Association Disestablishment Act 2013 (VLAD Act). The applicants sought to argue that the repeal of the VLAD Act prior to their proceedings should impact their charges and potential penalties. The central issues before the court were whether section 20 of the Acts Interpretation Act 1954 allowed the proceedings to continue as if the repeal had not occurred and whether the repeal affected the definition of the offence, the timing of being 'charged' with an offence, and the limits on punishment available upon conviction. Additionally, the court had to determine the applicability of sections 180 and 161Q of the Penalties and Sentences Act.

The court considered whether the repeal of the VLAD Act, which occurred before the indictment but after the initial charges, impacted the ongoing proceedings and penalties. It held that section 20(2)(d) of the Acts Interpretation Act preserved the applicants' potential liability to penalties incurred in relation to offences arising under both the Drugs Misuse Act and the VLAD Act. The court found that the repeal did not revive anything not in force at the time of the repeal and did not affect a penalty incurred in relation to an offence arising under the Act. Therefore, the applications were refused. The court reasoned that the repeal of the VLAD Act did not affect the potential penalties for the offences charged, which included circumstances of aggravation supplied by the VLAD Act. The reasoning extended to consider that the repeal did not affect the definition of the offence, the timing of being 'charged' with an offence, or the limits on punishment available upon conviction as per sections 11(1) and 11(2) of the Criminal Code and sections 180 and 161Q of the Penalties and Sentences Act.

The final orders of the court were to refuse the applications, allowing the proceedings to continue as if the repeal had not occurred. The applicants remained liable for the penalties incurred in relation to the offences charged, including those with circumstances of aggravation supplied by the repealed VLAD Act. The court's decision ensured that the repeal did not retroactively impact the applicants' charges or potential penalties.

Orders

Orders of the court

The applications are refused.

Background

Background to the litigation

The submissions require me to consider:(1)whether s 20 of the Acts Interpretation Act 1954 applies to permit the proceeding to continue and be completed and that any penalty be imposed as if the repeal of the VLAD Act had not happened; and(2)whether an offence under the Criminal Code includes within its definition circumstances of aggravation charged in respect of the offence; and(3)whether s 11(1) of the Criminal Code applies to the case and, in the context of s 11(1) in particular, when is a person charged with an offence; and(4)whether s 11(2) of the Criminal Code applies to limit the punishment applicable on any conviction;(5)whether s 180 of the Penalties and Sentences Act applies to reduce the maximum sentences for these alleged offences;(6)whether s 161Q of the Penalties and Sentences Act inserted as part of Part 9D is applicable to the punishment for any offence charged on the indictment.Background The applicants were indicted on 10 April 2017, after the repeal of the VLAD Act on 9 December 2016, with several offences related to trafficking in dangerous drugs both before the VLAD Act came into force on 17 October 2013 and since its introduction. Count 1 on the indictment charges all three applicants in respect of the period before the VLAD Act came into force with the offence of trafficking in heroin. Count 2 charges HXY and CEV with trafficking in heroin and methylamphetamine between 16 October 2013 and 31 January 2014 when the VLAD Act was in force. They are also charged with the circumstances of aggravation created by the VLAD Act that they were vicious, lawless associates and office bearers of an association. Count 3 similarly charges AQL that, between 16 October 2013 and 4 April 2014, he trafficked in heroin with the same circumstances of aggravation. Counts 4 and 5 against HXY and CEV, are charges of production and possession of heroin with the same circumstances of aggravation. Count 7, against AQL, is also a charge of production and possession of heroin with the same circumstances of aggravation. Because of the argument about the possible relevance of the dates when charges were laid before the indictment was presented, I was also informed that on 30 January 2014, HXY and CEV were charged by police with production and possession of a dangerous drug. On 3 April 2014, AQL was arrested and charged with possession of a dangerous drug. All of those charges alleged that the applicants were in possession of an amount of the dangerous drug in excess of two grams. None of them had a circumstance of aggravation alleged against them pursuant to the VLAD Act. On 14 July 2014, CEV was charged with trafficking as a vicious, lawless associate and as an office bearer. On 17 July 2014, HXY was charged with an identical offence. Again on 17 July 2014, AQL was charged with trafficking as a vicious, lawless associate but it was not alleged against him that he was an office bearer. Then, after committal hearings had occurred, HXY was the subject of an indictment presented on 22 April 2016 charging him with trafficking as a vicious, lawless associate and as an office bearer, producing a dangerous drug as a vicious, lawless associate and as an office bearer and possessing in excess of two grams of a dangerous drug as a vicious, lawless associate and as an office bearer. That was still within the currency of the VLAD Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

That may well be a gap in the legislation which could be addressed to rectify the anomaly that will occur in respect of these applicants compared to those who may have been sentenced already before the SOCLA Act commenced. Conclusion Consequently, s 20(2)(d) of the Acts Interpretation Act preserves the potential liability of the applicants to a penalty incurred in relation to an offence arising under the Drugs Misuse Act as well as to a penalty incurred in relation to such an offence under the VLAD Act. The applications will be refused.

Ratio Decidendi

Legal Principle Established

Section 20 of the Acts Interpretation Act provides:“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)revive anything not in force or existing at the time the repeal or amendment takes effect; or(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).(3)The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened.(4)Without limiting subsections (2) and (3), the repeal or amendment of an Act does not affect—(a)the proof of anything that has happened; or(b)any right, privilege or liability saved by the operation of the Act; or(c)any repeal or amendment made by the Act; or(d)any savings, transitional or validating effect of the Act.(5)This section is in addition to, and does not limit, sections 19 and 20A, or any provision of the law by which the repeal or amendment is made.” Section 11 of the Criminal Code says:“11 Effect of changes in law(1)A person can not be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred; nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when the person is charged with the offence.(2)If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender can not be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law.” The Acts Interpretation Act over many years until 1995 had made it explicit that s 20 did not affect the provisions of s 11 of the Criminal Code.[2][2] See the 1962 Reprint and Reprint Nos 1, 3 and 5 and note the reference in Reprint 3 where s 20(3)(a) provides that that section does not affect the operation of s 11 of the Criminal Code in its application to punishments on charges and the provisions of the Code. It had also until 1995 been explicit that s 20 of the Acts Interpretation Act did not affect the operation of s 180 of the Penalties and Sentences Act. Section 180(2) was also said to be significant in this context as it provides that if a provision of the Penalties and Sentences Act or another Act reduces the sentence for an offence, the reduction extends to offences committed before the commencement of the provision but does not affect any sentence imposed before the commencement. Those express references to s 11 of the Criminal Code and s 180 of the Penalties and Sentences Act were removed from s 20 of the Acts Interpretation Act in 1995 without an explanation that counsels’ researches have uncovered.[3] The effect of s 20 of the Acts Interpretation Act and whether a penalty incurred in relation to an offence includes a penalty referable to a circumstance of aggravation[3] See Reprint No 8.