R v JAA

[2018] QCA 365

SUPREME COURT OF QUEENSLAND

CITATION:

R v JAA [2018] QCA 365

PARTIES:

R
v
JAA
(applicant)

FILE NO/S:

[Redacted]

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: [Redacted]

DELIVERED ON:

21 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

[Redacted]

JUDGES:

Sofronoff P and Douglas and Brown JJ

ORDERS:

1.    The application for leave to appeal against sentence is granted.

2.    The appeal is dismissed.

CATCHWORDS:

[Redacted]

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 the applicant contends that the repeal of the VLAD Act prior to his guilty plea meant that thereafter, there was no power to impose any sentence for the circumstance of aggravation under the VLAD Act, pursuant to s 11(2) of the Criminal Code – whether s 11(2) of the Criminal Code prevails over s 20 of the Acts Interpretation Act 1954 (Qld)

Acts Interpretation Act 1954 (Qld), s 20
Criminal Code (Qld), s 11
Penalties and Sentences Act 1992 (Qld), s 9(2)(i), s 9(2)(r), s 13A, s 161, s 161R, s 161S, s 161Q, s 161V, s 188(4)(b)
Vicious Lawless Association Disestablishment Act 2013 (Qld), s 7, s 9

Commissioner of Taxation v Price [2006] 2 Qd R 316; [2006] QCA 108, considered
Mansray v Rigby (2014) 292 FLR 404; [2014] NTSC 62, cited
R v HBT[2018] QCA 227, considered
R v HXY[2017] QSC 108, considered
R v PAZ [2018] 3 Qd R 50; [2017] QCA 263, followed
R v Pritchard (1999) 107 A Crim R 88; [1999] NSWCCA 182, cited
Wilson v Director of Public Prosecutions (DPP) (NSW) (2017) 94 NSWLR 450; [2017] NSWCA 128, cited

COUNSEL:

B J Power for the applicant
V A Loury QC for the respondent

SOLICITORS:

McMillan Criminal Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P:  I agree with the reasons of Brown J and the orders her Honour proposes.

2. DOUGLAS J:  I agree with the reasons and orders proposed by Brown J.

3. BROWN J:  The applicant, JAA, pleaded guilty to the following offences contained on two indictments: assault occasioning bodily harm, while armed, in company; and, trafficking in a dangerous drug as a vicious lawless associate.  Trafficking in a dangerous drug while a vicious lawless associate was a circumstance of aggravation under the Vicious Lawless Association Disestablishment Act 2013 (Qld) (VLAD Act).

4. The sentencing judge considered that if it were not for the mitigating circumstances, the head sentence would have been an order for, in aggregate, seven years’ imprisonment.  His Honour however determined:

   “With the very substantial claims to leniency arising out of your significant cooperation with the administration of justice, in the result, the offences should attract sentences of imprisonment in respect of the trafficking of five years’ imprisonment, suspended after one year…