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R v Mason and Saunders

R v Mason and Saunders

Case [1997] QCA 421 28 November 1997

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IN THE COURT OF APPEAL	[1997] QCA 421
SUPREME COURT OF QUEENSLAND

C.A. No. 355 of 1997
C.A. No. 357 of 1997

Brisbane

[R. v. Mason & Saunders]

THE QUEEN

MARK JOHN MASON
and
STANLEY JAMES SAUNDERS

(Applicants) Appellants
Davies J.A. Pincus J.A. de Jersey J.

Judgment delivered 28 November 1997

Joint reasons for judgment of Davies and Pincus JJ.A.; separate reasons of de Jersey J. concurring as to the orders made.

IN EACH CASE - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND APPEAL ALLOWED ONLY TO THE EXTENT OF SETTING ASIDE IN EACH CASE THE DECLARATION THAT THE OFFENCES COMMITTED ON 19-20 SEPTEMBER WERE SERIOUS VIOLENT OFFENCES.

CATCHWORDS:	CRIMINAL - sentence application - applicants convicted of assault occasioning bodily harm in company, rape and indecent assault - sentencing judge declared some of the convictions to be convictions of serious violent offences - whether Part 9A Penalties and Sentences Act 1992, which provided for these declarations, applied where offences were committed before but the sentences were imposed after the commencement of the Part.
R. v. Inkerman C.A. Nos. 294 and 302 of 1997 R. v. Sayers C.A. No. 104 of 1997 Acts Interpretation Act 1954, ss.14H, 20C Corrective Services Act, s.166 Criminal Code, s.11 Penalties and Sentences Act 1992, ss.161B, 161C, 204, 206
Counsel:	Mr. A. Vasta Q.C. for the applicants/appellants Mr. M. C. Chowdhury for the respondent
Solicitors:	Queensland Aboriginal and Islanders Legal Services Secretariat (QAILSS) for the applicants/appellants Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	6 November 1997

JOINT REASONS FOR JUDGMENT - DAVIES AND PINCUS JJ.A.

Judgment delivered 28 November 1997

Each of the appellants was convicted after a trial by jury on 21 August last of assault occasioning bodily harm in company, four counts of rape, two counts of indecent assault with an aggravating circumstance being anal intercourse, three counts of indecent assault with an aggravating circumstance being a penis coming into contact with the mouth of the complainant and indecent assault. Mason was sentenced to 14 years imprisonment and Saunders to 12 years imprisonment, that being the sentence in each case for rape, the other sentences being imposed concurrently. In each case the learned sentencing Judge declared the appellants' convictions, other than that for bodily harm in company and the first of those of indecent assault with an aggravating circumstance of bringing a penis into contact with the complainant's mouth, to be convictions of serious violent offences as part of the sentence.

Each appellant appealed to this Court against his conviction and also sought leave to appeal against his sentence. On the hearing of those appeals each abandoned the appeal against conviction and each of those appeals was dismissed. Mr. Vasta Q.C. who then appeared for each of the appellants in respect of their applications for leave to appeal against sentence informed the Court that the appellants sought to appeal only against the declarations to which we have referred.

Those declarations were made pursuant to s.161B of…

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 Mason and Saunders

Details

AGLC: R v Mason and Saunders [1997] QCA 421
Case: [1997] QCA 421
Decision Date: 28/11/1997

CaseChat Overview and Summary

In the case of R v Mason and Saunders, the applicants, Mason and Saunders, were convicted of various offences including assault occasioning bodily harm in company, rape, and indecent assault. The applicants sought to challenge the application of Part 9A of the Penalties and Sentences Act 1992, which was enacted after the commission of their offences but before the imposition of their sentences. The key issue for the court was whether Part 9A could be applied to the applicants' situation, given that the offences were committed prior to the commencement of Part 9A, but the sentences were imposed afterwards.

The applicants argued that applying Part 9A to their case would contravene the principle of legality, as it would retroactively classify some of their convictions as serious violent offences. They contended that the sentencing judge's declarations under Part 9A were not applicable to offences committed before the commencement of the legislation. The court was required to determine whether the sentencing judge had the authority to make such declarations under Part 9A and whether doing so was compatible with the principle of legality.

The court considered the legislative intent behind Part 9A and the principle of legality, which requires that criminal offences and penalties be clearly defined by law. The court found that Part 9A did not apply to the applicants' situation as the offences were committed before the commencement of the legislation. The court held that applying Part 9A to the applicants' case would effectively alter the nature of their convictions in a manner that was not contemplated by the law at the time the offences were committed. Consequently, the court ruled that the sentencing judge's declarations under Part 9A were invalid in this context, and the applicants' sentences would not be affected by the provisions of Part 9A.

The final orders of the court were that the declarations made by the sentencing judge under Part 9A were quashed, and the applicants' sentences were to remain unaffected by the provisions of Part 9A. This decision underscored the importance of the principle of legality in criminal sentencing and highlighted the limitations of applying retrospective legislation to alter the nature of convictions for offences committed prior to the enactment of such legislation.

Orders