Court of Appeal (Qld)|2009-08-28|Before: McMurdo P, Chesterman JA and Mullins, J, Separate reasons for judgment of each member of the Court, Chesterman JA and Mullins J concurring as to the order made, McMurdo P, dissenting
McMurdo P, Chesterman JA and Mullins, J, Separate reasons for judgment of each member of the Court, Chesterman JA and Mullins J concurring as to the order made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE OR
INADEQUATE – the applicant pleaded guilty to four counts of distributing
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLYEXCESSIVE ORINADEQUATE – the applicant pleaded guilty to four counts of distributingchild exploitation material and one countof possessing child exploitationmaterial – the applicant was sentenced to three years imprisonment withparole eligibilityfixed after he had served 12 months – whether sentencewas manifestly excessiveSTATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OFSTATUTES – RETROSPECTIVE OPERATION – the relevantsentencingprovisions changed between the time the offence was committed and the time ofsentencing – learned sentencing judgeapplied sentencing provisions as atthe time of sentencing – whether the amendments altered substantive orprocedural provisions– whether amendments had retrospectiveoperation
Acts Interpretation Act 1954 (Qld), s
20C(3)
Criminal Code and Other Acts Amendment Act 2008
(Qld)
Criminal Code 1899 (Qld), s 11(2)
Penalties
and Sentences Act 1992 (Qld), s 9(2)(a), s 9(2)(b), s 9(3), s 9(4), s
9(6A), s 9(6B), s 211
Sexual Offences (Protection of Children)
Amendment Act 2003 (Qld)
United Nations International Covenant
on Civil and Political Rights, Article 15.1
Markarian v The Queen (2005) 228 CLR 357
[2005] HCA 25,
considered
Maxwell v Murphy (1957) 96 CLR 261
[1957] HCA 7,
applied
R v Breeze (1999) 106 A Crim R 441
[1999] QCA
303, cited
R v Carson [2008] QCA
268, considered
R v Flew [2008] QCA
290, cited
R v Inkerman & Attorney-General of
Queensland [1997] QCA 316, considered
R v Maclay (1990) 19
NSWLR 112
(1990) 46 A Crim R 340, cited
R v Mallard &
White [1998] QCA
59, considered
R v Mason and Saunders [1998] 2 Qd R 186
[1997] QCA
421, distinguished
R v Pora [2001] 2 NZLR 37
[2000] NZCA
403, cited
R v Robinson
ex parte Attorney-General of
Queensland [2000] 1 Qd R 670
[1998] QCA
107, cited
R v S [1999] QCA
311, followed
R v Salsone
ex parte A-G (Qld) [2008] QCA
220, considered
R v Truong [2000] 1 Qd R 663
[1999] QCA
21, followed
R v Wharley (2007) 175 A Crim R 253
[2007] QCA
295, cited
Rodway v The Queen (1990) 169 CLR 515
[1990]
HCA 19, applied
Siganto v The Queen (1998) 194 CLR 656
[1998]
HCA 74, cited
Siganto v R [1997] NTCCA 163
(1997) 97 A Crim R 60,
considered
Judgment (90 paragraphs)
[1]
The applicant does not derive any benefit from s 121. There was no Act or instrument ... which increased the penalty for rape between the time of the offence and the conviction. ... The applicant is aggrieved that by the time he came to trial, and was convicted and sentenced, the law had been changed such that he did not receive the prospective benefit of the remission and the possibility of a lesser period being fixed prior to which he would not be eligible to be released upon parole. ... The abolition or reduction of a possible benefit having the effect of reducing the term of imprisonment imposed by way of a penalty does not amount to an increase in the penalty."
[2]
[80] The High Court gave special leave to appeal and allowed the appeal but on a ground different to that of present interest. Special leave to challenge the applicability of Siganto to the Sentencing Act was expressly refused. Gleeson CJ, Gummow, Hayne and Callinan JJ said in their joint judgment (662):
[3]
"The Court of Criminal Appeal held, on the true construction of the legislation, and upon the basis of common law principles as to the operation of statutes ... that those new provisions applied to the sentencing of the appellant. Special leave to appeal ... was refused. Parliament intended the new sentencing regime to apply to persons in the position of (Siganto)."
[4]
[81] The analysis in the Court of Criminal Appeal is at odds with the reasoning in Mason which held that similar provisions did increase the punishment which could be imposed upon an offender, taking the view that no "narrow" or "technical" construction of the Code or Interpretation Act was desirable. The judgment in Mason looked at the practical effect of the amending legislation. The judgment in Siganto applied a more rigorous legal analysis to the provisions in question to conclude that the punishment provided by law had not increased though the result of the amendments was that a prisoner would spend longer in jail.
[5]
[82] It is, however, unnecessary to determine which approach is correct. Both, it seems to me, are available responses to the need to determine the applicability of newly enacted sentencing legislation. The approach favoured in Mason, has been consistently applied and reaffirmed. There is no need to doubt it or question its authority. But neither is there any need to criticise the alternative approach taken in the Northern Territory. Mason can be accepted as authority without casting doubt on Siganto.
[6]
[83] Perhaps it was because Truong referred to Siganto as a basis for doubting Mason that later, in Breeze, the reasoning in Siganto was criticised.
[7]
[84] Truong and Mason stand for independent propositions and it was not necessary for the validity of either proposition that the other be criticised. There is no irreconcilable difference between them. Both decisions can stand as authority for their respective propositions. They dealt with different subject matters. Truong was concerned with s 9 and the application of the section as amended to the exercise of sentencing discretions which the section regulates, or controls. Mason was concerned with the application of Part 9A of the PSA which introduced the stricter regime for parole eligibility. Different conclusions were reached about the retrospective application of the particular amendments with which each case was concerned, but the difference is accounted for by the fact that the subject matter was different, making different considerations relevant to the reasoning.
[8]
[85] Part 9A was held not to be retrospective because its provisions effectively increased the punishment for the offences to which it applied and retrospectivity was prohibited by s 11(2) of the Code and s 20C of the Interpretation Act. The amendments to s 9, by contrast, did not increase penalties: the prohibitions did not apply, the changes were to a procedural statute with the usual presumption that they were retrospective; and there was nothing to displace the operation of s 204 as affected by s 14H of the Interpretation Act.
[9]
[86] This application is concerned with amendments to s 9 not with any provision which has increased penalties for the offences committed by the applicant. Truong is the relevant authority and should be accepted. It was followed in Flew; and expressly endorsed in Breeze. To accept it in no way impugns the correctness of Mason.
[10]
[87] It is, I think, regrettable that in defending the authority of Mason the judgment in Breeze should have criticised the reasoning in Truong. It was not necessary but because Truong is the relevant authority for this application the criticism of it must be addressed.
[11]
[88] The point made was that "laws relating to the matters taken into account in determining the level of sentence are ... substantive", or arguably so. This is to suggest that a change to s 9 is a change of substantive law. I respectfully disagree and would follow and endorse the categorisation given in Truong: the change is to procedure. What the section does is to identify factors (but not all factors) to which a court must have regard when imposing a sentence. The actual imposition of a sentence is an exercise of discretion. Section 9 seeks to regulate the manner in which the discretion is to be exercised by an identification and weighting of factors to be taken into account and balanced out. A change to the factors, or a reordering of their priorities is not, in my opinion, properly described as changing a substantive law. It affects only the manner in which judges go about exercising the discretionary power of sentencing. To add to or subtract from the list of factors to be considered, even the removal of a factor normally regarded as important as a plea of guilty, would not, in my opinion, effect an alteration to the substantive law of sentencing.
[12]
[89] For these reasons the learned primary judge was, I think, right to conclude that he should approach the sentence to be imposed on the applicant by reference to s 9(6A) and (6B). Truong so decided. Mason is not relevant and the criticisms of it in subsequent cases was unnecessary and serves to distract attention from the relevant principle. That principle, that an offender has no right to be sentenced according to any particular regime or manner of exercise of the sentencing discretion is well established by Rodway and Siganto.
[13]
[90] There remains the point that when the 2008 amendments were enacted no specific provision was made about their prospectivity or retrospectivity. There is, perhaps, nothing remarkable about that except that when the 2003 amendments were enacted s 211 was inserted into the Act. That section provides that:
[14]
"Section 9 as amended by the Sexual Offences (Protection of Children) Amendment Act2003, section 28, applies to the sentencing of an offender whether the offence or conviction happened before or after the commencement of that section."
[15]
The omission of any such provision in the 2008 amendments might be thought deliberate, and to imply an expression of parliamentary intention that the amendments were not to have retrospective effect.
"... the application of the new sentencing principles to all offences is consistent with the approach of the Queensland Court of Appeal and the High Court.
[18]
The Court of Appeal, in considering similar amendments to section 9 ... found that the provisions were procedural (R v ... Truong ...), and therefore could operate retrospectively."
[19]
[92] Given this understanding it is puzzling why Parliament thought it necessary to make express provision for retrospectivity in s 211. The existence of that understanding also makes it difficult to infer that the absence of such a provision in the 2008 amendments was meant to indicate that the changes to s 9 were to apply prospectively only.
[20]
[93] The insertion of s 211 in 2003 without a similar insertion in 2008 is too equivocal to assist in the construction of the effect of the latter amendment.
[21]
[94] Even if the conclusion were wrong and the primary judge erred in approach, it would not follow that the sentences were necessarily wrong. It was conceded by senior counsel for the applicant that imprisonment was an appropriate punishment. A lesser term than that imposed was contended for but that is, for present purposes, irrelevant. Once it is conceded that it was appropriate to sentence the applicant to a term of actual imprisonment it cannot matter whether or not s 9(2)(a) applied. Assuming it did, as the applicant contends, a term of imprisonment was still appropriate. The learned primary judge concluded that the subsection did not apply and that he was not constrained to order imprisonment only as a last resort.
[22]
[95] On either approach imprisonment was an appropriate penalty. In that circumstance an error in concluding that imprisonment was appropriate without first having considered whether it was appropriate as the last resort was irrelevant. The error did not go to the length of the term of the imprisonment imposed. The determination of the duration of imprisonment depended on factors wholly unconnected with the question whether imprisonment should be ordered at all. On the hypothesis, which I have not accepted, that there was an error in the approach to the imposition of punishment the error had no consequence for the actual penalty imposed.
[23]
[96] The circumstances of the applicant's offending, his personal circumstances and the submissions made on his behalf as well as those in opposition to the application, and an analysis of the comparable authorities are fully set out in the President's reasons which I gratefully adopt. The fullness of her Honour's exposition makes repetition unnecessary.
[24]
[97] The distribution of the material is a serious aspect of the applicant's offending. This was recognised in Salsone [2008] QCA 220 which rightly described the publication of images of young children being raped and tortured as evil, and pointed out that the distribution of the material fosters and assists the terrible degradation of children and the destruction of their innocence. The maximum penalty for the offences described in counts 1, 2, 4 and 5 was 10 years' imprisonment. This is made relevant to sentence by s 9(2)(b) of the Act. The need to deter the distribution of child exploitation material is pressing. To pass on the material as the applicant did, is to advertise it, to encourage those who produce it, and to endorse the awfulness of the conduct necessary for its production.
[25]
[98] Salsone is not of great use as a comparative sentence because it was an Attorney's appeal and because the discretion of the Court of Appeal when resentencing was constrained by the fact that Salsone had fully performed a substantial obligation of community service imposed at first instance. R v Carson [2008] QCA 268 is closer in point of comparison though there are dissimilarities between that case and the applicant's which the President has analysed.
[26]
[99] I am not convinced that a sentence of three years' imprisonment on the distribution charges, counts 1, 2, 4 and 5, was excessive, given the number and nature of the images, and the applicant's promotion of them by making them available to others.
[27]
[100] The applicant distributed a very large number of appallingly depraved images. If one ignores the drawings and considers only images of living children, the number exceeds 8,000. What was said to be "a large number of these images" are of boys between about five and 12 having penises inserted into their mouths or anuses. As well, there were images of very young children, infants, being penetrated in the same way. One series of images displayed a five year old boy undergoing rape and torture.
[28]
[101] The possession of child exploitation material in a lasting format is a circumstance increasing the seriousness of the offence. R v Wharley [2007] QCA 295. The number and nature of images possessed and distributed is also relevant to the severity of sentence. The applicant loaded some 225 video files onto LimeWire. The applicant was, to some extent, active in distributing the material. He downloaded the material on two occasions onto a DVD which he gave to Forbes, created the potential for a wide circulation of the material. Such conduct must be discouraged.
[29]
[102] The applicant's personal circumstances, including remorse and efforts at rehabilitation which appear genuine, and the unlikelihood that he would re-offend, have been recognised by the early eligibility for release on parole.
[30]
[103] The sentence for possessing child exploitation may be, looked at in isolation, excessive. If the applicant, with his relevant factors in mitigation, had been convicted of count 3 only there may have been a strong argument that he should not have been incarcerated. The point has no practical importance because of the commission of the more serious offences and the need for them to be suitably punished.
[31]
[104] I would refuse leave to appeal against sentence.
[32]
[105] MULLINS J: I agree with Chesterman JA's analysis of the effect of the amendment made the Criminal Code and Other Acts Amendment Act 2008 which inserted s 9(6A) and s 9(6B) into the Penalties and Sentences Act 1992 (the Act) and the conclusion that those provisions applied to the applicant's sentencing.
[33]
[106] Section 9(6A) of the Act made the principles set out in s 9(2)(a) of the Act inapplicable to the sentencing of the applicant. Section 9(6B) of the Act had the effect of requiring the sentencing judge to have regard primarily to the factors set out in paragraphs (a) to (g) of s 9(6B). It did not require the sentencing judge to disregard the factors that are otherwise listed in paragraphs (b) to (r) of s 9(2) of the Act.
[34]
[107] In the context of the process that a sentencing judge must undertake in deciding the appropriate sentence for a particular offence (which is generally described in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 373-375 [37], 390 [84] and 405-406 [133]), the alteration effected by s 9(6A) and s 9(6B) of the Act of the statutory factors or the priority of those factors for the purpose of the applicant's sentencing did not result in a change in the substantive law regulating the extent of the punishment for the applicant's offences.
[35]
[108] Even without the application of s 9(6A) and s 9(6B), the nature of the applicant's offending, taking into account his circumstances, made imprisonment the appropriate punishment for these offences. I also agree with Chesterman JA that if the learned sentencing judge had erred in applying s 9(6A) and s 9(6B) of the Act and it were necessary to re-sentence the applicant, I would not impose any different sentence to that imposed by the sentencing judge.
[36]
[109] I would refuse leave to appeal against the sentence.
"Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations."
[58]
The terms of Article 15.2 do not appear to detract in any way from the potential relevance of Article 15.1 to this case.
[59]
[21] The 1997 Amendment Act also introduced Penalties and Sentences Act 1992 (Cth), s 9(3) and s 9(4).