R v Nooryan - [2019] QCA 294

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nooryan [2019] QCA 294

PARTIES:

R
v
NOORYAN, Mohammad
(applicant)

FILE NO/S:

CA No 305 of 2018
DC No 2876 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 19 November 2018 (Ryrie DCJ)

DELIVERED ON:

13 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2019

JUDGES:

Morrison JA and Mullins AJA and Lyons SJA

ORDER:

Application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE – GENERALLY – SODOMY OF A PERSON UNDER THE AGE OF 18 YEARS – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – OTHER MATTERS – where the applicant was convicted of seven counts of sodomy of a person under the age of 18 years – where the applicant was sentenced to 14 months’ imprisonment, wholly suspended with an operational period of two years – where the applicant’s conduct was an offence at the time of offending but the section defining the conduct as an offence has since been repealed – where the applicant challenges their sentence on two grounds – where it is contended that no punishment should have been imposed on the applicant by operation of section 11 of the Criminal Code and section 180 of the Penalties and Sentences Act 1999 (Qld) – where it is contended that the sentence was manifestly excessive – where the applicant was not charged with sodomy until after the repeal of section 208 of the Criminal Code – whether the applicant should have been punished when considering the operation of section 11 of the Criminal Code and section 180 of the Penalties and Sentences Act 1999 (Qld) – whether the sentence imposed upon the applicant was manifestly excessive

Acts Interpretation Act 1954 (Qld), s 20
Criminal Code (Qld), s 11, s 208, s 578(1) (as at 3 February 2016)
Penalties and Sentences Act 1992 (Qld), s 180

R v Frame[2009] QCA 9, cited
R v JAA[2018] QCA 365, cited
R v PAZ [2018] 3 Qd R 50; [2017] QCA 263, cited

COUNSEL:

S E Harburg for the applicant
T A Fuller QC for the respondent

SOLICITORS:

Russo Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: When the applicant was aged 33 years old he became friends with the complainant, then aged 16 years. They met on Facebook. They spoke to one another, online and by telephone, for a few weeks. Soon after that they met in person while socialising with mutual friends. They then commenced a sexual relationship.
The relationship and the events the subject of the offences with which the applicant was charged, spanned the period 1 March 2015 to 6 January 2016. The complainant had turned 16 just 12 days before the start of that period.…

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 Nooryan

Details

AGLC: R v Nooryan [2019] QCA 294
Case: [2019] QCA 294
Decision Date: 13 December 2019

CaseChat Overview and Summary

In the case of R v Nooryan, the applicant was convicted of seven counts of sodomy of a person under the age of 18 years and was sentenced to 14 months’ imprisonment, wholly suspended with an operational period of two years. The applicant appealed against his sentence, arguing that no punishment should have been imposed on him by operation of section 11 of the Criminal Code and section 180 of the Penalties and Sentences Act 1999 (Qld), and that the sentence imposed was manifestly excessive. The applicant was not charged with sodomy until after the repeal of section 208 of the Criminal Code, which defined the conduct as an offence. The applicant argued that because the conduct was no longer criminal by the time of sentencing, imprisonment should have been a sentence of last resort, and the purposes of sentencing such as rehabilitation, deterrence, community denunciation, and community protection were not relevant.

The court was required to determine whether the applicant should have been punished under section 11 of the Criminal Code and section 180 of the Penalties and Sentences Act, and whether the sentence imposed was manifestly excessive. The court noted that section 180 of the Penalties and Sentences Act provides that if a provision of an Act reduces the sentence for an offence, the reduction applies to offences committed before the commencement of the provision but does not affect any sentence imposed before the commencement. The court also considered the operation of section 11 of the Criminal Code and section 180 of the Penalties and Sentences Act, and the purposes of sentencing in light of the decriminalisation of the conduct. The court concluded that the applicant should not have been punished and that the sentence imposed was manifestly excessive.

The court found that although criminal liability was preserved in respect of the offences, the applicant could not have been punished because of the operation of section 11 of the Criminal Code and section 180 of the Penalties and Sentences Act. The court noted that the applicant was not charged with sodomy until after the repeal of section 208 of the Criminal Code, and that prior to that time the charge was for an entirely different offence, namely rape. The court also found that the sentence imposed was manifestly excessive in light of the decriminalisation of the conduct and the purposes of sentencing. The court concluded that the appropriate sentence was to convict the applicant and not further punish him, with no conviction recorded.

The court refused the application for leave to appeal. The court found that the applicant should not have been punished and that the sentence imposed was manifestly excessive. The court held that the appropriate sentence was to convict the applicant and not further punish him, with no conviction recorded.

Orders

Orders of the court

Application for leave to appeal is refused.

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

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Ratio Decidendi

Legal Principle Established

Section 180 of the Penalties and Sentences Act provides as follows:“180 Effect of alterations in sentences(1)If a provision of this or another Act increases the sentence, or the maximum or minimum sentence, for an offence, the increase applies only to offences committed after the commencement of the provision.(2)If a provision of this or another Act reduces the sentence, or the maximum or minimum sentence, for an offence, the reduction—(a) extends to offences committed before the commencement of the provision; but(b) does not affect any sentence imposed before the commencement.”Submission Ms Harburg of Counsel, appearing for the applicant, submitted that although s 20(2) of the Acts Interpretation Act preserved criminal liability in respect of the offences, the applicant could not have been punished because of the operation of s 11(1) or s 11(2) of the Criminal Code, and s 180 of the Penalties and Sentences Act. Further, the sentence was manifestly excessive by reference to the head sentence, the automatic recording of a conviction and the result that the applicant became a reportable offender under the Child Protection (Offender Reporting) Act 2004 (Qld). It was contended that the applicant was not charged with sodomy until the presentation of the indictment on 14 December 2017, at which time sodomy was no longer a criminal offence because of the repeal of s 208 of the Criminal Code. It was submitted the case was unlike that in R v PAZ[3] because there was no charge of sodomy until after the repeal of that offence. When the indictment was presented on 14 December 2017, that was the first time that the applicant was charged “with the offence” for the purpose of s 11(1) of the Criminal Code. Prior to that time the charge was for an entirely different offence, namely rape.[3][2018] 3 Qd R 50. As to the operation of s 11(2) of the Criminal Code, it was submitted that this Court should adopt the construction referred to by McMurdo JA in R v HBT.[4] It was acknowledged that the submission ran contrary to the decision of this Court in PAZ, but it was urged that PAZ should not be followed because to do so would give no effect to s 11(2) of the Criminal Code or s 180 of the Penalties and Sentences Act. The contentions accepted that s 20(2)(d) of the Acts Interpretation Act preserved the applicant’s liability to conviction, but given the repeal of the offence provision prior to his conviction and sentence, the appropriate sentence was that he be convicted and not further punished, with no conviction recorded.[4][2018] QCA 227. As to the question of manifest excess, it was contended that the fact that the applicant’s conduct was no longer criminal by the time of sentence meant that imprisonment should have been a sentence of last resort. Further, given the decriminalisation of the conduct it was said that rehabilitation, deterrence, community denunciation and community protection were not relevant purposes of sentencing. As the applicant had spent 28 days in presentence custody the appropriate sentence was to convict, without recording the conviction, and not further punish.

CITATION:	R v Nooryan [2019] QCA 294
PARTIES:	R v NOORYAN, Mohammad (applicant)
FILE NO/S:	CA No 305 of 2018 DC No 2876 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 19 November 2018 (Ryrie DCJ)
DELIVERED ON:	13 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2019
JUDGES:	Morrison JA and Mullins AJA and Lyons SJA
ORDER:	Application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE – GENERALLY – SODOMY OF A PERSON UNDER THE AGE OF 18 YEARS – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – OTHER MATTERS – where the applicant was convicted of seven counts of sodomy of a person under the age of 18 years – where the applicant was sentenced to 14 months’ imprisonment, wholly suspended with an operational period of two years – where the applicant’s conduct was an offence at the time of offending but the section defining the conduct as an offence has since been repealed – where the applicant challenges their sentence on two grounds – where it is contended that no punishment should have been imposed on the applicant by operation of section 11 of the Criminal Code and section 180 of the Penalties and Sentences Act 1999 (Qld) – where it is contended that the sentence was manifestly excessive – where the applicant was not charged with sodomy until after the repeal of section 208 of the Criminal Code – whether the applicant should have been punished when considering the operation of section 11 of the Criminal Code and section 180 of the Penalties and Sentences Act 1999 (Qld) – whether the sentence imposed upon the applicant was manifestly excessive Acts Interpretation Act 1954 (Qld), s 20 Criminal Code (Qld), s 11, s 208, s 578(1) (as at 3 February 2016) Penalties and Sentences Act 1992 (Qld), s 180 R v Frame[2009] QCA 9, cited R v JAA[2018] QCA 365, cited R v PAZ [2018] 3 Qd R 50; [2017] QCA 263, cited
COUNSEL:	S E Harburg for the applicant T A Fuller QC for the respondent
SOLICITORS:	Russo Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent