Woolard v Ellis
[1996] QCA 383
•15/10/1996
| IN THE COURT OF APPEAL | [1996] QCA 383 |
| SUPREME COURT OF QUEENSLAND | C.A. No. 31 of 1996 |
| Brisbane | |
| Before | Fitzgerald P. Ambrose J. Helman J. |
[Woolard v. Ellis]
HAYLEY MELISSA WOOLARD
v.
COLIN GRAHAM ELLIS Appellant
FITZGERALD P.
AMBROSE J. HELMAN J.
Judgment delivered 15/10/1996
JOINT REASONS FOR JUDGMENT FITZGERALD P. AND HELMAN J., SEPARATE
REASONS OF AMBROSE J. DISSENTING IN PART.
Appeal against conviction dismissed.
Application for leave to appeal against sentence granted.
Appeal against sentence allowed and the sentence imposed set aside.
The appellant is fined $500 and it is ordered that the fine be paid within four months of this
judgment, in default imprisonment for 14 days.
CATCHWORDS: | CONVICTION - assault occasioning bodily harm - whether verdict on all the evidence unsafe and unsatisfactory - credibility of the complainant’s evidence. |
| SENTENCE - whether the sentence was manifestly excessive - maximum penalty provision applicable at the material time - consideration of the history of the relevant legislation - statutory interpretation. | |
| s. 343A Criminal Code s. 5(1) Penalty Units Act 1985 Penalty Units Act Amendment Act 1988 Penalties and Sentences Act 1992 ss. 19(3), 20(2)(a), (b), (4)(c) and (5) Acts Interpretation Act 1954 | |
| Counsel: | S. Hamlyn-Harris for the Appellant S.C. Butler for the Crown |
| Solicitors: | Legal Aid Office for the Appellant Queensland Director of Public Prosecutions for the Crown |
| Date(s) of Hearing: | 12 March 1996 |
JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND HELMAN J.
Judgment delivered 15/10/1996
The circumstances giving rise to this appeal and application for leave to appeal against sentence are set out in the reasons for judgment of Ambrose J. We will supplement his Honour’s account only briefly; the appeal against conviction seems wholly without merit.
The complainant was medically examined on the day after she was assaulted by the appellant, and the medical practitioner, Dr Lambie, noted tenderness and superficial bruising to her face, a superficial laceration to the bridge of her nose, and bruising to her upper arms and buttocks. Dr Lambie described the complainant as a “highly emotional young woman”, and expressed the opinion that she exaggerated matters relating to her health; further, he considered that her injuries were more consistent with glancing blows than direct strikes. While he was of the view that her injuries were consistent with a “scuffle” and subsequent fall onto a sharp surface or object, he also accepted that they were generally consistent with her account of what had occurred. In our opinion, nothing in Dr Lambie’s evidence precluded the magistrate from accepting the essential truth of the complainant’s evidence.
Nor did such inconsistencies and other deficiencies as were pointed to in the complainant’s evidence have that effect. The magistrate was conscious of such matters, and, while considering that the complainant was generally “over-reactive”, with a tendency to exaggerate regarding her health and that she might have been mistaken and forgetful in some aspects of her evidence, she regarded her as honest and accepted her evidence, which was uncontradicted by sworn testimony. That course was open to the magistrate, who was entitled to find, as she did, that the prosecution had negatived self-defence and provocation beyond reasonable doubt.
The application for leave to appeal against sentence raises questions concerning the maximum penalty applicable to the appellant’s offence at the material time. As is pointed out in the reasons for judgment of Ambrose J., the appellant submitted that the fine of $1,125 was in excess of the maximum permissible penalty and, alternatively, that such a fine, to be paid within nine months, with a proviso that, in default, he be imprisoned for 22 days, was manifestly excessive in the circumstances.
The appellant was summarily convicted of assault occasioning bodily harm, and hence liable to a fine of $1,000 had the penalty provided by s. 343A of the Criminal Code when it was inserted in 1975 not been subsequently altered. Ambrose J., in his reasons for judgment, sets out or summarises the material provisions of the Penalty Units Act 1985 and the Penalty Units Act Amendment Act 1988. Shortly stated, after those provisions the maximum penalty was 20 penalty units and the value of a penalty unit was $60; i.e., the maximum penalty was $1,200.
Prior to the appellant’s offence on 21 September 1995, both the Penalty Units Act 1985 and the Penalty Units Act Amendment Act 1988 had been repealed by s. 205 of the Penalties & Sentences Act 1992. Submissions were made that, in consequence, the the maximum fine reverted to $1,000 as originally provided in s. 343A of the Code or, alternatively, was maintained at $1,200 in accordance with the Penalty Units Act 1985 and the Penalty Units Act Amendment Act 1988. The third possibility was that a new increased maximum fine was imposed by the Penalties & Sentences Act.
Section 3 of the Penalties & Sentences Act describes the purposes of that Act as including “collecting into a single Act general powers of courts to sentence offenders” (sub-s. 3(a)) and “generally reforming the sentencing laws of Queensland” (sub-s. 3(h)). Part 4 of the Penalties & Sentences Act deals with fines. Under sub-s. 45(3)(a), the maximum fine that a court may impose is “the appropriate maximum applicable to the offence under a provision of this or another Act relating to the offence”. Section 46 prescribes the maximum fine which may be imposed for a single offence dealt with in a particular court if an Act does not provide otherwise. The maximum fine that can be imposed if the offender is an individual and is sentenced in the Magistrates Court is 165 penalty units. At the time when this offence was committed, the value of a penalty unit as provided in sub-s. 5(1) of the Penalties & Sentences Act was $60, and by sub-s. 5(2) the maximum fine which could be imposed was the amount obtained by multiplying the value of a penalty unit by the number of penalty units, i.e., $9,900.[1]
Which of the three possibilities referred to above is correct depends on the effect of the Acts Interpretation Act 1954, which in turn depends on the effect which sub-s. 5(1) of the Penalty Units Act (as introduced into that Act by the Penalty Units Act Amendment Act 1988) had had upon s. 343A of the Code.
After the Penalty Units Act Amendment Act came into force, sub-s. 5(1) of the Penalty Units Act materially provided:
“5. Monetary penalties deemed to be expressed in penalty units. (1) Where
provision made before the commencement of this Act exists -(a) in any Act, for a penalty or for a maximum penalty that may be prescribed under the Act;
...
expressed in terms of money, then, subject to subsections (3) and (4), the
provision shall be construed as prescribing the penalty in terms of a number of
penalty units equal to the quotient obtained by dividing the amount of money so
expressed by 50.”
Sub-sections 19(3) and 20(2)(a) and (b), (4)(c) and (5) of the Acts Interpretation Act, so far as presently material, provide:
“19(3) If an Act (the ‘first Act’) is amended by another Act (the ‘other Act’), the continuing operation of the amendments made by the other Act is not affected merely because the other Act is repealed and, in particular, the first Act is not revived in the form in which it was in before the amendments took effect merely because of the repeal.”
“20(2) The repeal ... of an Act does not -
(a) revive anything not in force or existing at the time the repeal ... takes effect; or
(b) affect the previous operation of the Act ...
.... (4) Without limiting subsections (1) and (2), the repeal ... of an Act does not
affect -
...(c) any repeal or amendment made by the Act, or
...
(5) This section is in addition to, and does not limit, [section] 19 ..., or any
provision of the law by which the repeal ... is made.”
As we understand the effect of those provisions of the Acts Interpretation Act:
(a) If sub-s. 5(1) of the Penalty Units Act had repealed the part of s. 343A of the Code which referred to “$1,000.00 inclusive of costs”, s. 343A would no longer provide the maximum fine prescribed for a breach and the third possibility referred to above would have resulted from the enactment of the Penalties and Sentences Act by virtue of sub-ss. 20(2) and (4) of the Acts Interpretation Act.
(b) If sub-s. 5(1) of the Penalty Units Act had amended s.343A of the Code by effectively deleting the phrase referred to in the previous paragraph and substituting words to the effect of either “a number of penalty units ascertained by dividing the amount presently specified by 50" or “an amount ascertained by dividing the amount presently specified by 50 and multiplying the quotient by the value of a penalty unit”, the second possibility referred to above would have resulted from the repeal of sub-s. 5(1) of the Penalty Units Act by virtue of the provisions of the Acts Interpretation Act.
(c) If sub-s. 5(1) of the Penalty Units Act neither repealed nor amended the material phrase in s. 343A of the Code but merely provided how that phrase was to be “construed” - as sub-s. 5(1) of the Penalty Units Act stated - the requirement that s. 343A be so “construed” terminated when sub-s. 5(1) of the Penalty Units Act was repealed, leaving s. 343A to operate according to its terms; i.e., the first possibility referred to above.
Whatever its effect on sub-s. 343A of the Code, sub-s. 5(1) of the Penalty Units Act must have had a similar effect on numerous other statutes with consequences in individual instances which cannot now be identified. Nonetheless, it is reasonable to assume that the most convenient course generally would be to treat sub-s. 5(1) of the Penalty Units Act as having amended the legislation which it required to be “construed” in the manner which it specified. Some support for that approach might also be found in s. 5 of the Penalties and Sentences Act, which perhaps proceeds on an implicit assumption that that was the effect which sub-s. 5(1) of the Penalty Units Act had prior to its repeal by the Penalties and Sentences Act. Nonetheless, it cannot be said that it is essential that sub-s. 5(1) of the Penalty Units Act be regarded as a provision which amended numerous other provisions; as this case demonstrates, if the effect of sub-s. 5(1) is exhausted, alternative penalties exemplified by either the first or third possibilities referred to above will continue to apply.
No authority was cited which would support a conclusion that sub-s. 5(1) of the Penalty Units Act partially repealed or amended either the material phrase in s. 343A of the Code or the other provisions which it required to be “construed” in the manner which it specified. Such a conclusion would undesirably complicate the hitherto simple and well-understood concepts of amendment and repeal. Further, the question for decision arises in a penal context and, at least in this case, if sub-s. 5(1) is construed according to its terms - so that its operation is now exhausted - a lesser maximum fine may be imposed. In our opinion, a course which would permit a higher maximum fine cannot be justified on the basis of convenience or some presumed legislative intent which cannot be distilled from the language of the material statutes.
We consider that sub-s. 5(1) of the Penalty Units Act neither amended nor partially repealed s. 343A of the Code and that the first possibility is correct; the maximum fine for an offence against s. 343A of the Code is that provided by the section itself, namely $1,000.00. It follows that the fine imposed by the magistrate exceeded the maximum permissible, and should be set aside. This Court must itself impose the appropriate sentence.
While the appellant had a criminal history which included offences involving violence, all had occurred a considerable period prior to the present offence. Further, the appellant suffers physical disabilities, which limit his capacity to work; at the material time, he was in receipt of less than $120 per week by way of disability pension, was paying board of $60 per week, and had no savings. While it was necessary that he be punished and that such offences be deterred, the circumstances of the offence and his personal circumstances make the fine of $500 suggested by the appellant’s solicitor to the magistrate sufficient to meet the occasion.
We would dismiss the appeal against conviction, grant the application for leave to appeal against sentence, allow the appeal, set aside the sentence imposed, fine the appellant $500 and order that the fine be paid within four months of this judgment, in default imprisonment for 14 days.
Irrespective of the outcome of this case, it would be appropriate for the unsatisfactory interaction between the now repealed Penalty Units Act and the Penalties and Sentences Act to be brought to the attention of the legislature.
REASONS FOR JUDGMENT - B. W. AMBROSE J
Judgment delivered 15/10/1996
This is an appeal against conviction upon a charge of assault occasioning bodily harm and against the penalty imposed which was a fine of $1125 in default imprisonment for twenty-two days with nine months allowed to pay the fine.
The notice of appeal contained four grounds.
Upon the hearing of the appeal however only two of the specified grounds were argued -
"(1)that the verdict of the learned stipendiary magistrate was on all the evidence unsafe and
unsatisfactory; and
(4)that the sentence in all the circumstances is manifestly excessive."
In addition to the fourth ground it was also contended that the penalty imposed exceeded the maximum penalty available under s.343A of the Criminal Code.
It is convenient to deal firstly with the appeal against conviction.
The events leading to the conviction of the appellant occurred in a caravan in Toowoomba in
which the complainant and the appellant were residing together in a de facto relationship. A good deal of evidence was led as to the events which preceded the infliction of bodily
harm on the complainant by the appellant.
The appellant did not give evidence and therefore the learned stipendiary magistrate heard only the evidence of the complainant and two witnesses called to support her.
The application of force about which complaint was made involved punches to the face and buttocks. The complainant said that these punches were delivered after several days of domestic disharmony between her and the appellant. Earlier than the time in question there had been a less injurious application of force after which the appellant had left the caravan and consumed some alcohol. Upon his return there were further disputes which according to the complainant led to her being thrown from a bed in the caravan and punched about the head and buttocks. She received medical attention for the injuries she sustained. It was not suggested that they did not cause her bodily harm.
The complainant was cross-examined with a view to showing that she was not a credible witness. It was also endeavoured to show in the course of cross-examination that defences of self- defence and provocation were available to the appellant which had not been negatived.
Obviously the credibility and reliability of the witnesses in the case brought against the appellant were of critical importance and it is clear from the decision of the stipendiary magistrate that she carefully considered the evidence that the complainant had given and the way she had faired under a long and vigorous cross-examination on behalf of the appellant.
After a careful consideration of the evidence given by the complainant both in chief and under cross-examination the stipendiary magistrate concluded that she was giving her evidence honestly; she found that she had been punched about the face and buttocks and forcibly kicked or pushed off a bed in the caravan by the appellant. In effect she found that although the complainant had perhaps exaggerated the force applied to her, nevertheless that force had been sufficiently significant to produce bruising the existence of which had been confirmed by a medical practitioner consulted after the assault. There were also photographs of injuries to the complainant's face which confirmed her evidence on essential matters.
She found upon the uncontradicted evidence that self-defence and provocation had been negatived. To the extent that the complainant had offered any violence to the appellant she had been motivated to do so by insulting accusations he had made against her and by his conduct towards her generally. The magistrate held that the force which the appellant had obviously applied to the complainant was disproportionate to any force that could have been justified in the circumstances.
The evidence called to support the charge against the appellant was uncontradicted. The only basis for the contention that defences of provocation or self-defence were open to the appellant could be facts emerging in the evidence of the complainant herself. The facts that emerged in that way in my view were not sufficiently compelling or even persuasive to justify this court in concluding that it was unsafe and unsatisfactory for the stipendiary magistrate to conclude that the complainant had negatived beyond reasonable doubt defences of provocation or self-defence.
I would dismiss the appeal against conviction.
The appeal against sentence involves two matters -
(i)whether in fact a fine of that size was greater than the maximum penalty which might be imposed under s.343A of the Criminal Code; and
(ii)whether the imposition of a fine of $1125 in default twenty-two days' imprisonment with nine
months to pay was in any event manifestly excessive in the circumstances.
Section 343A of the Criminal Code provides, inter alia -
"343A Any person who unlawfully assaults another and thereby does the other person bodily harm is liable on summary conviction to a fine of $1000 inclusive of costs and in default of payment thereof to imprisonment for two years or to imprisonment for two years in the first instance."
That section was inserted in the Criminal Code in 1975.
In 1985 the Penalty Units Act 1985 came into effect. Section 5 of that Act provided -
"5. Conversion of monetary references to penalty units
(1) Where in any Act, Regulation or Order in Council there is provision whether made before or after the commencement of this Act for a monetary penalty that may be recovered by proceedings before a court in respect of an offence by reference to an amount of money then subject to subsection (2) the provision shall be construed as describing a penalty of a number of penalty units equal to the quotient obtained by dividing the amount of money referred to by the value of a penalty unit as prescribed by this Act."
[Emphasis added].
The provisions of s.5(2) of the Act are not relevant to the matters under consideration.
Section 9 of the 1985 Act prescribed the value of a penalty unit to be $50 to arrive at the
prescribed penalty.
Section 7 of the 1985 Act provided that the application of s.5 should not in any case render an offender "liable to a penalty greater to than that to which he would have been liable if this Act had not been passed". The section obviously addressed the effect of conversion of penalties expressed in monetary terms to penalty units and not the intended increase in monetary penalty from time to time upon increase in the value of penalty units by statutory amendment.
The 1985 Act was amended by the Penalty Units Act Amendment Act 1988 which repealed s.5 of the 1985 Act and substituted the following s.5:
"5. Monetary penalties deemed to be expressed in penalty units
(1) Where provision made before the commencement of this Act exists -
(a)In any Act for a penalty or for a maximum penalty that may be prescribed under the Act;
or
(b)...
expressed in terms of money then subject to subsections (3) and (4) the provision shall be
construed as prescribing the penalty in terms of a number of penalty units equal
to the quotient obtained by dividing the amount of money so expressed by 50."
[Emphasis added].
S. 5(2), s.5 (3) and s.5(4) do not appear relevant to the matters debated upon this appeal.
Under s.8 of the 1988 Act, s.9 of the 1985 Act was amended to substitute $60 for the $50 specified as the value of a penalty unit under the 1985 Act. S.5 of the Penalties and Sentences Act 1992 headed "Meaning of Penalty Unit" does not attempt to deal with the many penalties expressed in terms of monetary fines in legislation enacted prior to 1988 as did s. 5(1)(c) of the Penalty Units Act Amendment Act 1988.
Subsequent to the 1988 amendment of the Penalty Units Act 1985 therefore it was no longer necessary to consider the value of a penalty unit when "construing" a monetary penalty. The terms of s.5 of the Act following its 1988 amendment simply required a dividing of the monetary penalty so expressed by 50.
On 24 November 1992 the Penalties and Sentences Act 1992 came into force.
S.45(3) of that Act provided that the maximum fine that a court may impose is -
"(a)the appropriate maximum applicable to the offence under a provision of this or another
Act relating to the offence."
Section 46(1) then goes on to provide a limitation as to the maximum fine that may be imposed for a single offence if the Act creating it does not expressly provide a sentence.
Section 46 of the Act has no direct application to the present appeal. Nevertheless s.46(1) (a)
and (b) provide:
"46.(1) If an Act creates an offence and does not provide a sentence the maximum fine that a
court may impose for a single offence is -
(a)if the court is a Magistrates Court and the offender is -
(i)an individual - 165 penalty units; or
(ii)a corporation - 835 penalty units; or
(b)if the court is a District Court and the offender is an individual - 4175 penalty units."
| The term "penalty units" used in s.46(1) is not expressly defined in that Act which not deal with the translation of a monetary penalty provided in legislation into the equivalent penalty | does |
Under s.47 of the Penalties and Sentences Act the Court in this case was empowered to impose a lesser fine than that expressly provided for under s.343A of the Criminal Code.
Section 206 of the Penalty and Sentences Act repealed the Penalty Units Act 1985 as amended by the 1988 Act.
Upon its plain wording, s.343A of the Code provides that the maximum fine for an offence under that section is $1000. Under the Penalty Units Act Amendment Act 1988, the Court imposing a penalty was required to construe the maximum monetary penalty of $1000 as prescribing a penalty in terms of 20 penalty units. That consequence flowed inevitably from the express terms of s.5(1) of the 1988 Act. Once that act was repealed, s.5 had no application unless prior to repeal it had in effect amended s.343A of the Code to provide a maximum monetary penalty of 20 penalty units.
The question then arises as to the effect of the 1988 amendment to s.5 of the 1985 Act which in express terms required that a court construe a monetary penalty expressly provided in a prior Act in terms of penalty units.
In my view the amendment certainly did alter basically the method of calculation of penalty required while the Penalty Units Act 1985 as amended in 1988 remained in force. The 1988 Act made it unnecessary to have regard to the value of a penalty unit for the purpose of construing an expressed monetary penalty in terms of penalty units as was the case under the 1985 Act. It merely required that the monetary penalty be divided by 50.
In my view it was the clear intent of the 1988 amendment that from the commencement of its operation all monetary penalties were to be construed as the equivalent of the number of penalty units resulting from a division of the monetary penalty specified by 50. A court was thus required under s.5(1) of the Penalty Units Act 1985 as amended in 1988 to construe s.343A of the Criminal Code as providing for a maximum fine of 20 penalty units.
By s.9 of the Penalty Units Act 1985 as amended in 1988, penalty units were specified to be the equivalent of $60. The effect of the 1988 Amendment therefore was that the maximum pecuniary penalty for an offence under s.343A was $1200.
Subsequent to the 1988 amendment the value of a penalty unit specified under s.9 was irrelevant to the conversion of a monetary penalty to the appropriate number of penalty units under s.5(1) of the Act.
In my view it was the clear intent of the amending legislation in 1988 to permit from time to time a variation in the value of monetary penalties to be imposed by merely amending s.9 of the Penalty Units Act (as was in fact done in 1988). It then became unnecessary to amend the provisions of each Act which prescribed a maximum fine for offences when it was desired to increase monetary penalties across the board.
The Penalty and Sentences Act 1992 which repealed the Penalty Units Act 1985 as amended did not define a penalty unit although it did specify the monetary value of a penalty unit to be $60; it also specifically referred to penalty units in s.46(1)(a).
The Crown contends that in spite of its repeal, the Penalty Unit Act 1985 as amended in 1988 had the effect of amending s.343A by providing in effect a maximum penalty of the equivalent of 20 penalty units which at the material time had a value of $1200 for an offence under that section.
This was obviously the approach taken by the learned stipendiary magistrate in imposing the
penalty of $1125.
Section 5 of the Penalties and Sentences Act 1992, the operation of which commenced 27 November 1992, specified the value of a penalty unit without defining that term.
Section 5 provided:
"5(1) For the purposes of this or another Act the value of a penalty unit is $60.
(2) If an Act expresses a penalty or other matter as a number (whether whole or fractional) of penalty units, the monetary value of the penalty or other matter is the number of dollars obtained by multiplying the value of a penalty unit by the number of penalty units.
(3) If an order of a court expresses a penalty or other matter as a monetary value, the number of penalty units is to be calculated by dividing the monetary value by the value of a penalty unit as at the time the order is made."
By Act No 36 of 1993 an additional subsection (4) was added but that amendment is of no assistance in considering this point.
There is nothing in the Penalties and Sentences Act which defines the term "penalty unit" or specifies how a penalty expressed in an Act as a monetary fine is to be expressed in terms of penalty units. The only Act to do that is the Penalty Units Act 1985, as amended in 1988, which was repealed by s.206 of the Penalties and Sentences Act 1992.
| By Act 54 of 1995 s.5(1)(b) was amended to increase the value of a penalty unit from $60 to In my view the legislative intent to substitute for penalties expressed in differing monetary amounts in various Acts penalties expressed in terms of penalty units, the value of which may be varied from time to time, is clear on the terms of the repealed legislation. The repealing act - the Penalties and Sentences Act 1992 - in the express terms of s.46(1) - assumes the continued operation of penalties expressed in terms of units as distinct from penalties expressed in monetary terms. Indeed the Penalties and Sentences Amendment Act was amended in 1995 to provide for an increase in the value of a penalty unit to $75. | $75. |
| In my view when it enacted the 1995 amendment to s.5 of the Penalties and Sentences Act 1992, the Legislature proceeded on the basis that the repeal of the Penalty Units Act 1985 as amended did not have the result of reverting to the prescription of monetary penalties as if the Penalty Units Act had never been passed. Section 5 of the Penalties and Sentences Act 1992 can be read as assuming that the penalties in effect provided by the 1988 Penalty Units Act remained in force and had not been affected by the repeal of that Act. Section 5(1)(b) restated the value of a penalty unit to be that specified in the repealed 1988 Act. | |
| S. 205 of the Penalties and Sentences Act 1992 (inserted by the Statute Law Revision Act (No 2) 1995 provides that reference to the Penalty Units Act 1985 in an Act may "if the context permits" be taken to be a reference to the 1992 Act. | |
| If the contention of the appellant is correct, ss.5(1)(b) and 46 of the Penalties and Sentences Act can have no operation with respect to penalties provided in terms of monetary fines in numerous Acts in force in Queensland at the time of the repeal of the Penalty Units Act 1985 as amended. Such a consequence ought be avoided if possible. In my view, it would be a consequence neither intended nor indeed foreseen by the Legislature when enacting and amending the Penalties and Sentences Act. |
Section 20 of the Acts Interpretation Act 1954 provides, inter alia:
"20.(1) In this section -
'Act' includes a provision of an Act.
...
(2) The repeal ... of an Act does not -
...
(b)affect the previous operation of the Act or anything suffered, done or begun under the
Act; or
...
(4) Without limiting subsections ... the repeal ... of an Act does not affect -
(c) any ... amendment made by the Act; or ..."
In my view the provisions of ss.20(2)(b) and 20(4)(c) have the effect of preserving the legislative effect of s.5(c) of the Penalty Units Amendment Act 1988 (read as an amendment to the 1985 Act) of converting monetary penalties imposed by legislation to penalty units from the date of its operation.
The argument against such an approach is that s.5(c) provides only for "the construction" of Acts providing for monetary penalties in a specified way and upon its repeal there is no legislative basis for continuing to so construe those Acts. I would reject that contention as attributing an unduly restrictive meaning to the words "be construed as" which were chosen by the Legislature to, in effect, permanently change the basis for calculation of penalties to be imposed by way of fines. In effect, "construe" is used in the sense of "interpret" or "translate' and the Penalties and Sentences Act was drafted on the basis that s.5(c) of the 1988 Act would have immediate and permanent operation; in spite of its repeal in my view it continues to have effect. It could not have been the intention of the Legislature in enacting the Penalties and Sentences Act 1992 that the provision of Part 4 of that Act should have operation only in respect of penalties expressed in terms of penalty units in legislation enacted subsequent to 1985. Such a result would certainly not sit well with the expressed "purposes" of the Act under s. 3 - particularly s. 3(c). Section 3(a) states that a purpose of the Act is the "collecting into a single Act general powers of Courts to sentence offenders." Unless s. 5 of the Penalty Units Act 1985 (as amended) is given lasting effect, it is clear that the purpose of the Act expressed in s. 3(a) will not be achieved; indeed the repeal of the 1985 Act (as amended) will have the result of reducing the level of penalties achieved across the board by the 1988 amendment of that Act. In this case it would involve a reduction of the maximum fine from $1200 to $1000 - i.e. from the level thought appropriate in 1988 to that thought appropriate in 1975. On the other hand fines expressed in terms of penalty units will not be so reduced; indeed they will be increased by virtue of the 1995 amendment increasing the value of a penalty unit from $60 to $75.
In my view there is nothing ambiguous or uncertain as to the effect of the 1988 amendment to the Penalty Unit Act. The penalty imposed by the stipendiary magistrate was within the maximum penalty specified under s.343A "interpreted", or "translated" as required by s.5 of the Penalty Units Act as amended in 1988; it was slightly less than the maximum penalty of 20 penalty units with the value specified at the time the offence was committed.
With respect to the size of the penalty in fact imposed, it seems to me that having regard to the background and history of the appellant and the nature of the assault the penalty was at the upper end of the range appropriate for a non-custodial penalty. The stipendiary magistrate obviously concluded that the gravity of the offence just failed to justify imposition of a custodial sentence. However the non-custodial sentence imposed was within the sentencing discretion of the learned stipendiary magistrate and I would not interfere with it upon appeal.
I would dismiss the appeal against sentence.
(a) Neither party contended that the subsequent increase in the value of a penalty unit when
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