R v Carlton [2009] QCA 241

SUPREME COURT OF QUEENSLAND

CITATION: R v Carlton [2009] QCA 241

PARTIES: R v CARLTON, Luke Brett (applicant)

FILE NO/S: CA No 340 of 2008 / DC No 1073 of 2008

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 28 August 2009

DELIVERED AT: Brisbane

HEARING DATE: 1 April 2009

JUDGE: 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

ORDER: Leave to appeal against sentence is refused

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 child exploitation material and one count of possessing child exploitation material – the applicant was sentenced to three years imprisonment with parole eligibility fixed after he had served 12 months – whether sentence was manifestly excessive / STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – RETROSPECTIVE OPERATION – the relevant sentencing provisions changed between the time the offence was committed and the time of sentencing – learned sentencing judge applied sentencing provisions as at the time of sentencing – whether the amendments altered substantive or procedural provisions – whether amendments had retrospective operation / 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) 97 A Crim R 60, considered

COUNSEL: A J Glynn for the applicant / M B Lehane for the respondent

SOLICITORS: Robertson O'Gorman for the applicant / Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P: The applicant, Luke Brett Carlton, pleaded guilty on 10 December 2008 to four counts of distributing child exploitation material ("CEM") (counts 1, 2, 4 and 5) and one count of possessing CEM (count 3). He was sentenced on counts 1, 2, 4 and 5 to three years imprisonment and on count 3 to 12 months imprisonment. His parole eligibility date was fixed at 9 December 2009, that is, after 12 months. He applies for leave to appeal contending that the sentence was manifestly excessive. Following discussion at the hearing of the application, the Court gave leave to include a ground that the judge erred in ruling that s 9(2)(b) Penalties and Sentences Act 1992 (Qld) did not apply and that comparable sentences to which the judge was referred were not imposed under the same sentencing regime as applied to Carlton.

2. Unlike my colleagues, it is my view that the application for leave to appeal should be granted and the appeal allowed on this amended ground. These are my reasons.

The sentencing proceedings

3. Carlton was 23 at the time of the offences and 25 at sentence. He had no prior criminal history.

4. The offences occurred between March and November 2006. The details of the offences, placed before the sentencing judge in a schedule of facts, were as follows. On 14 March 2007, police obtained a statement from Jeffrey Forbes, who had been in an intimate relationship with Carlton. Forbes claimed that on two occasions Carlton provided him with DVDs containing CEM. It first happened in about March or April 2006. Forbes took the DVD home and copied it onto his computer to view the contents (count 1). In late June or early July 2006, Carlton provided Forbes with a second DVD containing more CEM (count 2). A computer analyst verified that the CEM images on Forbes' computer had the same "digital fingerprint" as CEM images found on Carlton's laptop computer.

5. On 10 November 2007, police located more CEM on 12 CDs and DVDs they had obtained from Carlton. The items contained 2,490 still images, 725 animated cartoons, 292 movie files and 32 text documents, all classified as CEM. The material portrayed predominantly male children under 16 with their genitalia exposed and engaged in sexual acts with adult males. A subsequent examination by computer analysts of storage media taken from Carlton revealed a total of 16,888 still images categorised as CEM. To understand the seriousness of the offending, it is necessary to make some reference to the nature of these images.

6. About half were cartoon-type drawings depicting children in a variety of sexual poses or engaging in sexual acts with other children or adults. Of the remaining images, most depicted naked male children between the ages of five and 12 exposing their often erect penises, together with other male children or male adults. Many of these images involved oral or anal penetration. Some images showed naked children under five with their genitalia exposed. Some depicted babies and toddlers being orally and anally penetrated by adult male penises. One particularly sordid and disturbing series of images depicted a boy of about five years old, sometimes tied up, being orally and anally penetrated by an adult male. In some images, a male was urinating on the child. Some of these images showed the child red-faced and tearful.

7. Police also obtained from Carlton a large number of text documents and 266 movie files containing CEM. These included an adult female performing oral sex on a female child aged about three years old; a female child aged about three years old being vaginally penetrated by an adult male; a female toddler being vaginally penetrated by an adult male; an adult male rubbing his penis against the vagina of a baby of about one year; an adult male attempting to force a male toddler of about 18 months to perform oral sex on him whilst the toddler was visibly distressed; an adult male penetrating the anus of a male baby under one year old then masturbating and ejaculating on the child's chest; an adult male penetrating the vagina of a female baby with the sound of crying clearly audible; an adult male forcing a male toddler under 18 months of age to perform oral sex before ejaculating on the child's face whilst the child was crying throughout.

"… all appellate matters referred to [him] were under a sentencing regime in which for this offending a term of imprisonment was a last resort. The procedural matter of repealing such requirement means that it is the date of sentence that matters, and because of the amendment to the legislature that came into operation on the 1st of December 2008, the provision of a term of imprisonment being a last resort does not apply."

17. The judge also noted the following matters. Forbes was given a fully suspended sentence, but he had pleaded guilty to fewer charges involving less serious offending than Carlton. In addition, Forbes had inculpated Carlton and had been sentenced under s 13A Penalties and Sentences Act. Carlton was only 23 at the time of his offending and 25 at sentence. References tendered on his behalf spoke well of him. The psychologist's report, which should be carefully scrutinised, did show attempts by Carlton at rehabilitation and suggested he had some insight into the seriousness of his offending. The judge then sentenced Carlton to an effective term of three years imprisonment with parole eligibility fixed after one year.

The applicant's contentions

18. Mr Glynn SC, who appeared for Carlton in this application, argued that the sentence was manifestly excessive when compared to this Court's decision in Salsone. He contended that the judge gave insufficient weight to Carlton's youth, prior good character and steps taken towards rehabilitation. The strong progress he had made towards rehabilitation meant that it was unfair to subject him to the vagaries and uncertainties of the parole system. He should have been given a partially suspended sentence to reflect the mitigating factors. As submitted below, an effective head sentence on counts 1, 2, 4 and 5 of between 18 months and two years imprisonment suspended after four to six months should have been imposed, and in respect of count 3 a sentence of four to six months imprisonment followed by probation for a period of two years.

19. During the appeal hearing, Mr Glynn, after questioning by the judges, revived the abandoned submission of defence counsel at sentence and submitted that the judge erred in ruling that s 9(2)(a) did not apply in sentencing Carlton. The Court gave leave to Mr Glynn to amend the grounds of the appeal and for him and Mr Lehane, who appeared for the respondent, to file further written submissions on this point.

20. Mr Glynn's submissions on this ground were as follows. The Penalties and Sentences Act was amended by the Criminal Code and Other Acts Amendment Act 2008 (Qld) ("the 2008 Amendment Act") by adding s 9(6A) and s 9(6B). These provisions commenced on 1 December 2008, after Carlton had committed the present offences but before he was sentenced. Section 9(6A) provides that s 9(2)(a) (that prison is a last resort and a community based sentence should be preferred) does not apply to specified offences,⁵ including the offences to which Carlton pleaded guilty. Instead, a court in sentencing such an offender must have primary regard to the principles set out in s 9(6B). There is nothing in the 2008 Amendment Act which makes s 9(6A) and s 9(6B) applicable to offences committed before the 2008 Amendment Act commenced. This may be contrasted with the amendments to the Penalties and Sentences Act under the Sexual Offences (Protection of Children) Amendment Act 2003 (Qld) ("the 2003 Amendment Act"), which added s 9(5), s 9(6)⁶ and s 211⁷ to retrospectively exclude s 9(2)(a) in sentencing for sexual offences committed against a child under 16. The legislature in the 2003 Amendment Act specifically applied the changes wrought by s 9(5) and s 9(6) to offences committed both before and after the amending provisions: see s 211 . The 2008 Amendment Act contained no provision akin to s 211. Section 11(2) 1899 (Qld) applies to the operation of s 9(6A) and s 9(6B) in the absence of a specific legislative enactment to the contrary. This is because s 9(6A) has the effect of punishing an offender to a greater extent than was the case before its commencement. In the absence of a clear legislative enactment to the contrary, s 9(6A) should only be applied to the sentencing of offenders who committed offences after s 9(6A) commenced on 1 December 2008.

The respondent's contentions

[22] Mr Lehane for the respondent made the following submissions. Salsone should be distinguished. Carlton was two years older than Salsone at the time of his offending and four years older at sentence. Carlton, whilst young, was not an extremely youthful first offender. Mr Lehane especially emphasised that the CEM in the present case was more depraved than in Salsone. Unlike in Salsone, some of the CEM in Carlton's possession was in a lasting format. This was an aggravating feature: see R v Wharley.¹⁴ Further, Salsone made admissions to police whilst Carlton declined to be interviewed. Additionally, Salsone was an Attorney‑General's appeal and by the time it was determined, Salsone had completed 200 hours of community service. This case is closer to Carson, which supports the sentence imposed in the present case. In fixing a parole eligibility date after 12 months, the judge gave proper recognition to the mitigating factors. The aggravating features of the present case, and the need for the imposition of a deterrent sentence, make the sentence imposed within range.

[23] Mr Lehane's contentions as to the retrospective applicability of s 9(6A) and s 9(6B) were as follows. Section 9 is a procedural provision so that s 11(2) did not entitle or require Carlton to be sentenced according to s 9(2)(a). This is consistent with this Court's position in Truong, relying on Rodway v The Queen.¹⁵Truong suggested that Mason and Saunders may need to be reconsidered. In Breeze, this Court departed from the court's reasoning in Truong and re-affirmed that Mason and Saunders was correctly decided. Breeze however, followed Truong in respect of Truong's conclusion that s 9(3) and s 9(4) were retrospective. So, too, did R v S.¹⁶Mason & Saunders was concerned with Pt 9A which was introduced into the Penalties and Sentences Act by the Penalties and Sentences (Serious Violent Offences) Act Amendment Act 1997 (Qld) ("the 1997 Amendment Act"). The explanatory notes to the 1997 Amendment Act included a statement that the legislation would not be retrospective.¹⁷ In introducing s 9(5) and s 9(6) through the 2003 Amendment Act, parliament stated its intention that those provisions should be retrospective. This was demonstrated in the explanatory notes which expressed an appreciation that, consistent with authority, the amending provisions would automatically operate retrospectively in the absence of any indication to the contrary. The legislature's inclusion of the transitional provision in the 2003 Amending Act¹⁸ was unnecessary. The legislature appreciated this, which was why it did not include any specific provision relating to the retrospectivity of s 9(6A) and s 9(6B) in the 2008 Amendment Act. The legislature assumed, correctly, that those provisions were retrospective. Section 9(6A) and s 9(6B) are procedural provisions applying retrospectively to Carlton's sentencing.

Discussion and conclusion

Do s 9(6A) and s 9(6B) apply?

[24] Section 11(2) Criminal Code relevantly provides:

"If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender can not be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law."

[25] Article 15.1 of the United Nations International Covenant on Civil and Political Rights ("ICCPR")¹⁹ similarly provides:

"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby."²⁰

[26] Section 9 Penalties and Sentences Act sets out guidelines for courts sentencing offenders. Section 9(2)(a) requires a court to have regard to principles that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable. The 2008 Amendment Act added s 9(6A) and s 9(6B). Section 9(6A) makes the principles in s 9(2)(a) inapplicable to the offences to which Carlton pleaded guilty. Section 9(6B) sets out the sentencing principles to which a court must have primary regard in sentencing offenders for such offences.

[27] Although not directly relevant, this Court in Inkerman determined that the effect of the 1997 Amendment Act, which introduced Pt 9A²¹ into the Penalties and Sentences Act, made Inkerman liable to punishment to a greater extent than was authorised by the law prior to the amendment. In the absence of a clear legislative intention that Pt 9A was retrospective, the effect of s 11(2) Criminal Code was that it was not.

[28] In Mason and Saunders, this Court noted that Pt 9A made offenders convicted of serious violent offences²² ineligible for parole until serving 80 per cent of the term of imprisonment. This punished the offender to a "greater extent than was authorised by the former law" within the meaning of s 11(2) and effectively increased the penalty for the offence within the meaning of s 20C(3) Acts Interpretation Act 1954 (Qld). The court considered that the former of these conclusions was consistent with Inkerman. Neither "s.11(2) nor s.20C(3) should be given a narrow technical construction. The purpose of each would be contravened if Part 9A were to apply to offences committed before it commenced".²³ The court determined that Inkerman was correctly decided and should be followed.

[29] In Truong, this Court took a different approach in construing 1997 amendments to s 9 Penalties and Sentences Act. Truong committed offences of violence when he was aged 17 and at a time when s 9(4) provided that an offender under 25 who had not been previously convicted could only be sentenced to imprisonment after all other available sentences had been considered, taking into account the desirability of not imprisoning a first offender, and if the court were satisfied no other sentence was appropriate. After Truong offended but before his sentence, the 1997 Amendment Act repealed s 9(4) and added the present s 9(3) and s 9(4). This had the effect that the principle that a sentence of imprisonment should only be imposed as a last resort was not applicable to offences involving the use of violence against another (s 9(3)). Instead, the primary matters to which the court must have regard when sentencing such offenders were set out in s 9(4). The Court²⁴ reasoned as follows. Section 9 was procedural and was therefore retrospective: Rodway v The Queen.²⁵ Section 20 Acts Interpretation Act only applied to preserve acquired or accrued rights and not to the practice and procedure of the trial. It was arguable whether the 1997 Amendment Act increased any actual penalties, although it plainly subjected some offenders to a regime under which a greater part of their sentence was to be served in prison. Inkerman and Mason and Saunders were authority for the proposition that Pt 9A punished the offender to a greater extent than was authorised by the former law. This approach seemed inconsistent with Siganto v The Queen²⁶ and R v Maclay,²⁷ however those cases were based upon statutes with clear transitional provisions requiring retrospective operation to offences committed before the operation of the Act. The court determined that:

"… s 9 of the Penalties and Sentences Act, both before and after the 1997 amendment is a purely procedural provision and that nothing in s 11 of the Code or in s 20 or s 20C of the Acts Interpretation Act entitle the applicant to be sentenced according to the earlier version of s 9. However, we would not at this stage be prepared to depart from the view taken by this Court in R v Mason & Saunders … in relation to the non-application of Part 9A to offences committed before 1 July 1997."²⁸

[30] In Breeze, the offender, as in Truong, committed a serious violent offence²⁹ prior to the 1997 Amendment Act introducing Pt 9A and the present s 9(3) and s 9(4). The sentencing judge, following Truong, held that s 9(3) and s 9(4) applied. On appeal, it was not contended that Truong should be overturned. The Court,³⁰ nevertheless, noted its concern about the observations made in Truong that Mason and Saunders was wrongly decided. The Court considered that Truong, although contrary to this Court's decision in R v Mallard & White,³¹ should be followed. This was because in Mallard & White the point was effectively conceded and received only brief discussion. The Court noted, however, that Truong was wrong in describing s 9 as "procedural". Laws relating to the matters to be taken into account in determining the level of sentence appear to be substantive laws. Siganto should not be regarded as expressing a reasoned conclusion on whether s 9 had retrospective operation. Retrospectivity was not in issue before the High Court in Siganto because special leave to appeal against that part of the decision of the Northern Territory Court of Criminal Appeal dealing with retrospectivity was refused.³² The transcript of the argument in the application for special leave in the High Court in Siganto shows that no reason was given for that refusal. This Court also expressed doubt about the correctness of the reasoning in the Northern Territory Court of Criminal Appeal in Siganto, noting:

"… We do not well understand why a change in the law governing punishment for an offence should be beyond the scope of s 11(2) simply because the section constituting the relevant offence is unchanged."³³

The relevant explanatory notes to the 1997 Amendment Act included a statement that generally the legislation would not be retrospective.³⁴Mason and Saunders should be followed as to the non-retrospectivity of Pt 9A.³⁵ Despite the reservations noted by the Court, it concluded that Truong should be followed as to the amendments to s 9 made by the 1997 Amendment Act introducing the present s 9(3) and s 9(4).³⁶

[31] As Chesterman JA points out, this Court in R v Flew recently followed Truong as to the effect of s 9(3) and s 9(4).³⁷Flew did not consider the present arguments; it did not concern s 9(6A) and s 9(6B); and Mr Flew was not legally represented in his appeal.

[32] In R v S, this Court re-affirmed the conclusion in Mason and Saunders and Breeze that Pt 9A did not apply retrospectively to offences which were committed prior to its commencement, despite the doubt thrown by Truong³⁸ upon the correctness of reasoning in Mason and Saunders. Pincus JA, with whom Atkinson J³⁹ and I agreed on this point,⁴⁰ noted that in Truong the court did not consider Mallard & White.⁴¹ Since R v S, Mason and Saunders has often been followed by this Court: see, for example, R v Robinson; ex parte Attorney-General of Queensland.⁴²

[33] It is prudent to briefly discuss Mallard & White, where this Court,⁴³ conscious that s 9 had been amended by the 1997 Amendment Act since the commission of the offences by Mallard and White, considered that s 9(4) (and by inference, s 9(3)) did not apply retrospectively. That decision preceded Truong but was not referred to in Truong. Whilst the question of retrospectivity was not argued or considered by the court, it is not irrelevant that three experienced judges of this Court considered the amendments to s 9 introducing the present s 9(3) and s 9(4) in the 1997 Amendment Act, as not being retrospective.

[34] This Court has not previously been asked to determine whether s 9(6A) and s 9(6B), introduced by the 2008 Amendment Act, are retrospective in effect. Truong is authority for the retrospective effect of the amendments to s 9 made by the 1997 Amendment Act introducing the present s 9(3) and s 9(4). Although Truong is inconsistent with Mallard & White, the issue was not argued and expressly determined in Mallard & White. Breeze, whilst critical of the reasoning in Truong, followed Truong, although specifically only in respect of the 1997 amendments to s 9. In R v S the Court endorsed the criticisms of Truong made by this Court in Breeze.

[35] This Court's reasoning in Truong, that s 9 was procedural in its effect and therefore retrospective, turned on the High Court's decision in Rodway, a decision easily distinguishable from the present case. Procedural law is the body of rules setting out the manner, form and order in which matters may be dealt with and enforced in a court. It includes the formal steps in an action including pleadings, process, evidence and practice. On the other hand, substantive law creates, defines and regulates people's rights, duties, powers and liabilities, and contains the actual rules and principles administered by courts, both under statute law and common law. Rodway concerned statutory amendments to the existing law relating to corroboration. When Rodway was alleged to have committed sexual offences against a child, the law provided that he could not be convicted of those offences on the uncorroborated evidence of a child. Before his trial, the law was changed to prevent a trial judge warning a jury that it was unsafe to convict on the uncorroborated evidence of the child, unless a warning was justified in the circumstances. Rodway argued that he should be tried according to the law relating to corroboration at the time of his alleged offences, not at the time of his trial. The change to the law of evidence in Rodway's case was plainly a change to procedural law. Section 11(2) provides that an offender is not to be made liable to a greater punishment through a change in the law which comes into force after the commission of the offence. It is uncontentious that s 11(2) in its clear terms does not apply to a change to the procedural law relating to evidence; the evidentiary law as to corroboration is unrelated to the punishment to which the offender was liable at the time of the offence. Rodway is not persuasive authority that s 9, which deals with the principles apposite when sentencing an offender, are procedural.

[36] Siganto, upon which this Court relied in Truong, was also clearly distinguishable from and of little assistance in the present case. Siganto concerned a different statute which specifically provided for retrospectivity of the relevant provisions. The court in Breeze gave additional reasons as to why Siganto was unhelpful in construing s 9.⁴⁴ Despite this Court's criticism in Breeze of the reasoning in Truong, the effect of both Truong and Breeze is that the 1997 amendments to s 9 introducing the present s 9(3) and s 9(4) were retrospective in effect. That is a persuasive factor in favour of Mr Lehane's contention that s 9(6A) and s 9(6B) introduced by the 2008 Amendment Act are also retrospective. It is not, however, conclusive.

[37] The Court in Truong did not have the benefit of this Court's reasoning in Breeze. I agree with the observations made in Breeze that s 9, which deals with the legal principles to be applied by judges when sentencing those found guilty of criminal offences, is actually substantive not procedural law.⁴⁵ If applied retrospectively, the changes to s 9 introducing s 9(6A) and s 9(6B) effected by the 2008 Amendment Act were capable of making offenders who had committed but not yet been punished for certain stated offences prior to s 9(6A) and s 9(6B) coming into force, liable to punishment to a greater extent than was formerly authorised by law. Section 9(6A) removed the application of the principle that imprisonment should only be imposed as a last resort and that a sentence which allows the offender to stay in the community is preferable. Were a judge to act under s 9(6A) and send an offender to prison when the judge would not have done so but for s 9(6A), or to impose a heavier sentence applying the principles in s 9(6B) than the judge would otherwise have imposed but for s 9(6B), the offender would be protected by s 11(2), unless the legislature made clear its intention that s 9(6A) and s 9(6B) were retrospective.

[38] There are a number of reasons why I am not persuaded the legislature intended s 9(6A) and s 9(6B) to be retrospective. In amending s 9 by the 2003 Amendment Act, it seems that the legislature was aware of the tension between the views of this Court expressed in Truong on the one hand, and in Breeze and R v S on the other, as to whether s 11(2) applied to amendments to s 9. That is probably why the 2003 Amendment Act not only added s 9(5) and s 9(6) to the Penalties and Sentences Act but it also added s 211, specifically providing that the 2003 amendments applied retrospectively.⁴⁶ The 2008 Amendment Act introducing s 9(6A) and s 9(6B) contained no such provision as to retrospectivity. The relevant explanatory notes and second reading speech were silent as to any retrospective legislative intent. None of this suggests that the legislature intended to make s 9(6A) and s 9(6B) retrospective. This is not surprising. As s 11(2) Criminal Code and Article 15.1 ICCPR recognise, it is a grave step to change the legal principles and framework under which judges and magistrates must exercise their judicial discretion in sentencing offenders, after the offences have been committed. To apply such laws retrospectively is contrary to common sense concepts of what is fair and just. The application of the rule of law requires that people should be able to ascertain not only what conduct constitutes a criminal offence at a particular time, but also what legal principles apply to the punishment to which they will be exposed if they commit that offence at that time. This is especially important in cases like the present where, until comparatively recently, the conduct now constituting a serious criminal offence was not criminal conduct.

[39] Section 9(5) and s 9(6) are retrospective in effect because of s 211. And as Breeze recognised, Truong should be followed as to the retrospective effect of the 1997 amendments to s 9 introducing the present s 9(3) and s 9(4). But the approach in Truong and Breeze which deal with the construction of s 9(3) and 9(4) and the retrospective applicability of s 211 to s 9(5) and s 9(6) do not bind this Court in construing s 9(6A) and s 9(6B). In light of s 11(2) and Article 15.1 ICCPR, this court would only conclude that s 9(6A) and s 9(6B) were retrospective if it was beyond doubt that the legislature intended them to be retrospective.

[40] Chesterman JA, in concluding that s 9(6A) and s 9(6B) are retrospective, places reliance on s 204(1) Penalties and Sentences Act and s 14H(1) Acts Interpretation Act. I am not persuaded that those provisions are intended to exclude the operation of s 11(2): cf Mason and Saunders.⁴⁷ Nor do I find helpful, in determining the legislative intent in the 2008 Amendment Act, the statement in the explanatory notes to the Sexual Offences (Protection of Children) Amendment Bill 2002 relied on by Chesterman JA. That Bill was unconnected with the offences to which s 9(6A) and s 9(6B) apply.

[41] Section 9(6A) and s 9(6B) set out the principles applicable when judicial officers exercise the sentencing discretion. The exercise of that discretion and the sentencing process may be judicial "instinctive synthesis": Markarian v The Queen.⁴⁸ But provisions like s 9(6A) and s 9(6B) are mandatory in their terms. Section 9(6A) specifically excludes the provision of the sentencing principles in s 9(2)(a). Section 9(6B) states that the court "must" have regard primarily to the sentencing principles set out in it. As I have explained, I consider that s 9(6A) and s 9(6B), which mandate that certain sentencing principles apply and do not apply when judicial officers exercise the sentencing discretion in respect of those found guilty of specified offences, are substantive law. Section 11(2) has application unless specifically excluded. The legislature does not seem to have done this. I would not find a legislative intention to make s 9(6A) and s 9(6B) retrospective unless this was clearly stated: cf R v Pora.⁴⁹ It follows that the sentencing judge was wrong to rely on s 9(6A) and s 9(6B) if to do so would be to punish Carlton to a "greater extent than was authorised"⁵⁰ by s 9 when Carlton committed the offences. The judge's sentencing remarks made clear that his Honour wrongly considered s 9(6A) to be retrospective.⁵¹ His Honour erred in relying on s 9(6A) and s 9(6B) to conclude that earlier comparable sentences were not imposed under the same "sentencing regime" as applied to Carlton. This seems to have wrongly influenced the way in which the judge determined Carlton's sentence.

[42] It follows that the application for leave to appeal against sentence should be granted and the appeal allowed. This Court must re-sentence Carlton.

Re-sentencing

[43] The cases of Salsone and Carson provide some assistance in determining the sentence to be imposed in this case. Salsone was sentenced without conviction to three years probation and 200 hours community service for one count of distributing CEM (s 228C) and to three years probation without conviction for one count of possessing CEM (s 228D). The Attorney-General appealed, claiming Salsone's sentence was manifestly inadequate. Salsone was 21 years old at the time of the offences, 22 at sentence, and had no criminal history. In relation to the first count, the images involved sexual acts of an adult penetrating of a young child and sexual activities between children. One image showed sadistic treatment of a child and the penetration of a girl's vagina with an object. Some of the images involved children younger than six years old. The Court noted that the CEM "approached the worst kind". An aggravating feature was that much of the material on Salsone's limewire files was able to be accessed by other internet users. A psychological report opined that Salsone had signs of schizoid personality disorder and possible pervasive developmental (autism spectrum) disorder. He attempted to rationalise his actions, but he had reasonable insight into the seriousness and deviancy of his acts. He had sought counselling. After noting the considerable mitigating features, this Court observed:

"… Whilst the possession of child exploitation material in itself encourages the evil business of the exploitation and sexual abuse of children in the production of that material, the distribution of that material takes the offending to a higher level of exploitation of the children involved and even more significantly fosters that heinous industry. This Court has consistently recognised that deterrent sentences are appropriate for offences against s 228D. Deterrent sentencing is even more apposite for offences against s 228C. The appropriate penalty for an offence against s 228C will, however, depend on the circumstances both of the offence and the offender. Those who commit serious offences against s 228C, for example mature offenders in the business of the commercial distribution of gravely depraved child exploitation material, who have a relevant criminal history and who have not cooperated with the administration of justice, can expect to be sentenced to lengthy periods of imprisonment. Less severe examples with significant mitigating features will result in more moderate terms of imprisonment, sometimes either suspended after a short period of actual custody or absolutely, or served by way of an intensive correction order."⁵²

[44] The Court determined Salsone's sentence was manifestly inadequate. It ordered he serve 15 months imprisonment suspended forthwith with an operational period of two years on count 1 and that he be placed on two years probation on count 2. Salsone benefited from the moderate approach taken by courts of appeal in re‑sentencing on a successful Attorney-General's appeal against sentence towards the lower end of the permissible range. Salsone's sentence also reflected his successful completion of a 200 hour community service order imposed as part of his original sentence. The sentence imposed in Salsone was certainly at the low end of the appropriate range in the circumstances.

[45] Carson involved a 31 year old offender, a significantly more mature man than Carlton, who was 23 at the time of his offending. Carson pleaded guilty to an ex**officio indictment containing one count of possessing CEM and one count of distributing CEM. He was cooperative with the authorities and made admissions. He voluntarily sought treatment from a psychologist, although the treatment related to his anxiety and depression, not his predilection for child pornography. Carson was sentenced to an effective term of three and a half years imprisonment with parole eligibility after 18 months. Carson's potential to distribute CEM through peer-to-peer file-sharing programmes was greater than in Carlton's case. This Court allowed Carson's appeal to the limited extent of setting the parole eligibility at 14 rather than 18 months.

[46] The maximum penalty for Carlton's offences on counts 1, 2, 4 and 5 (distributing CEM) was 10 years imprisonment, and on count 3 (possessing CEM) was five years imprisonment. The circumstances of his offending were more serious than in Salsone, but not quite as serious as in Carson. The CEM the subject of Carlton's offending was within the worst category of CEM I have yet come across. There can be no doubt that Carlton's offending encouraged the violent, evil international trade of exploiting and sexually abusing babies, toddlers and children in the production of that material. A significant deterrent penalty was necessary, in this case one involving actual imprisonment, to deter Carlton, and others of like mind, from distributing and possessing such CEM.

[47] On the other hand, there were important mitigating features. At least it can be said that there was no commercial element to Carlton's offending. He had no prior convictions. Although at 23 years old he was not the most youthful of offenders, he was still a young man with rehabilitative prospects. Many references were tendered as to his otherwise good character. He was remorseful and ashamed about his offending and had made real efforts to change since his apprehension. He had taken part in a structured treatment program with a psychologist and appeared to be well on track to rehabilitation at sentence. Hopefully, that rehabilitation has continued over the past eight or so months that he has so far spent in custody serving his sentence. In re-sentencing at this time, the Court cannot ignore the time he has now spent in custody so that s 9(2)(a) has limited application. He will clearly benefit from the supervision and control of a significant period of parole in the community upon his release. Balancing the competing considerations, an effective sentence of two years imprisonment with immediate parole is appropriate. I would fix parole at the date of these orders.

[48] On counts 1, 2, 4 and 5, I would sentence Carlton to two years imprisonment and on count 3 to nine months imprisonment. I would fix his parole eligibility date at 28 August 2009.

[49] CHESTERMAN JA: The principal question raised by this application is whether the amendments to the Penalties and Sentences Act 1992 (“the Act”) which came into effect on 1 December 2008 applied to the appellant’s sentencing. In my opinion they did and the learned primary judge was correct in so holding.

[50] Section 9 of the Act relevantly provides:

‘(2)In sentencing an offender, a court must have regard to –

(a)principles that -

(i)a sentence of imprisonment should only be imposed as a last resort; and

(ii)a sentence that allows the offender to stay in the community is preferable; and

...

(r)any other relevant circumstance.

(3)However, the principles ... in subsection 2(a) do not apply to the sentencing of an offender for any offence -

(a) that involved the use of ... violence…

…

(5)Also, the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender for any offence of a sexual nature committed in relation to a child under 16 years.

(6)In sentencing an offender to whom subsection (5) applies, the court must have regard primarily to -

...

(6A)Also, the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender for the following offences –

…

(d)an offence against the Criminal Code, section 228A, 228B, 228C or 228D.

(6B)In sentencing an offender to whom subsection (6A) applies, the court must have regard primarily to –

(a)the nature of any image of a child that the offence involved ...

(b)the need to deter similar behaviour ...

(c)the prospects of rehabilitation ...

(d)the offender’s antecedents, age and character; and

(e)any remorse ...

(f)any medical ... or other relevant report …; and

(g)anything else about the safety of children under 16 that the sentencing court considers relevant.”

[51] Subsections (5) and (6) were inserted into the Act with effect from 1 May 2003 by s 28 of the Sexual Offences (Protection of Children) Amendment Act 2003. Subsections (6A) and (6B) were added by the Criminal Code and Other Acts Amendment Act 2008 with effect from 1 December 2008.

[52] The appellant committed the offences to which he pleaded guilty between 1 March 2006 and 10 November 2006, before subsections (6A) and (6B) were added to the Act. He was convicted and sentenced on 10 December 2008, after the subsections had been inserted.

[53] The question for determination is whether the legislative restraint on imposing a sentence of imprisonment, to which a sentencing court must have regard by virtue of s 9(2)(a), applied to the appellant’s sentencing, or whether the restraint had been removed by the addition of subsections (6A) and (6B). Put more simply: do the subsections apply to the applicant who had committed the relevant offences before the Act was amended but was sentenced afterwards?

[54] There are two reasons for thinking that they did. The first reason is the decision in R v Truong [2000] 1 Qd R 663. Truong committed offences involving personal violence. When he did so s 9(4) of the Act provided that a court might impose a sentence of imprisonment on an offender younger than 25 without previous convictions only if satisfied that no other sentence was appropriate in all the circumstances. Truong came within the terms of the subsection but by the time he was dealt with s 9 had been amended; subsection (4) removed and (s 3), as it now appears, inserted. The Court (de Jersey CJ, Thomas JA, MacKenzie J) held that Truong was to be sentenced according to the Act as it was at the time of the sentence, not as it was when the offences were committed. The restraint in ss (4) was therefore not applicable.

[55] The Court said (666-7):

“On behalf of the Crown Mr Moynihan submitted that the factors prescribed in s. 9 of the ... Act set out the way in which a judge is to approach the facts and the manner to proceed when passing sentence. It is, he submits, a procedural provision. That, we think, is plainly correct. By way of example, statutory amendments altering existing law with respect to corroboration have been authoritatively held to be merely procedural. In Rodway’s case the court held that the provisions ‘operated to affect the way in which rights fell to be determined at trial and, for that reason, they did not fall within the presumption against retrospective operation’ and that ‘both amendments were procedural in character’. ... It may generally be taken that a procedural statute is, in the absence of an indication to the contrary, to be construed as retrospective, that is to say that its application may relate to past events.” (footnotes omitted)

[56] The principle underlying the judgment is that expressed by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267:

“The general rule ... is that a statute changing the law ought not ... be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past ... events, the law appointing or regulating the manner in which they are to be enforced ... is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities ... notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities ... was complete and rested on events ... past and closed.”

[57] The case referred to, Rodway v The Queen (1990) 169 CLR 515, was one in which a section of the Tasmanian Criminal Code providing that no person should be convicted of particular offences on the uncorroborated evidence of the complainant was repealed after Rodway had committed the offence but before he was tried and convicted. The Court (Mason CJ, Dawson, Toohey, Gaudron, McHugh JJ) said (518):

“The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance.”

[58] In a later passage (521) the Court said:

“But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.”

[59] The judgment in Truong proceeded on the basis that these remarks are apposite to the procedure pertinent to sentencing: to paraphrase, a person who commits a crime does not have a right to be sentenced in any particular way, merely a right to be sentenced according to the practice and procedure prevailing at the time of sentence.

[60] Truong has been regarded as authoritative, and followed. In R v Flew [2008] QCA 290 Fraser JA (with whom Atkinson J agreed) said:

“[42]Whilst there were intervening amendments to the sentencing principles expressed in s 9 of the ... Act ... the authorities confirm that the sentencing judge was right to apply s 9 in the form it was in at the time of sentence see R v Truong [2000] 1 Qd R 663 at [25]; … Siganto v R (1998) 194 CLR 656 at 662-663.”

[61] The second reason is s 204 of the Act which was part of the Act when first enacted. It provides:

“(1)This Act applies to any sentence imposed after the commencement of this section, irrespective of when the offence was committed.”

Section 14H(1) of the Acts Interpretation Act 1954 (“the Interpretation Act”) provides:

“In an Act, a reference to a law (including the Act) includes a reference to the following –

(a)the law as originally made, and as amended from time to time since it was originally made;”

Section 4 of the Interpretation Act provides that its application may be displaced by a contrary intention appearing “in any Act”.

[62] The effect of these two provisions, if s 14H(1) is not displaced, is that the Act, as amended from time to time, applies to the imposition of a sentence regardless of when the offence for which an offender is being sentenced was committed. The Act as it is at the time of the sentence, is to be applied.

[63] When the applicant was sentenced the Act included s 9(6A) and (6B), excluding the principle found in s 9(2)(a).

[64] The point becomes more complicated because there are cases, the earliest of which was R v Mason and Saunders [1998] 2 Qd R 186 in which amendments to the PSA were considered not to operate retrospectively. The reasoning in these cases may be thought to be inconsistent with Truong. The facts of Mason are relevantly indistinguishable from those in the present application and in Truong. Offences of violence were committed before s 9 was amended in the manner described in Truong. The Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 which introduced those changes also added Part 9A to the PSA. Its sections provided that in specified circumstances an offender sentenced to imprisonment for a serious violent offence, (as defined), must serve 80 per cent of the sentence before being eligible for parole.

[65] Mason held that the provisions of Part 9A did not apply to an offender who committed a serious violent offence prior to the date of the amendments but who was sentenced afterwards. Davies and Pincus JJA (with whom de Jersey J, as the Chief Justice then was, agreed) referred to s 204 of the PSA and s 14H of the Interpretation Act but concluded that the operation of s 14H had been displaced by contrary intention. The contrary intention was found in (i) the Explanatory Notes to the Bill introducing the amendments which made it tolerably clear that Part 9A was not meant to be retrospective, and (ii) the terms of s 11(2) of the Criminal Code and s 20C of the Interpretation Act.

[66] Section 11(2) provides:

“If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender can not be punished to any greater extent than was authorised by the former law”.

Section 20C provides:

“(3)If an Act increases the maximum or minimum penalty, or the penalty, for an offence, the increase applies only to an offence committed after the Act commences.”

[67] Davies and Pincus JJA said (189):

“The main effect of the application of Part 9A to offences is that the offender is not eligible for release on parole until he has served 80 per cent of the term of imprisonment imposed on him ... . The removal of that prospect (i.e. of parole) ... punishes the offender to a greater extent than was authorised by the former law, within the meaning of s. 11(2) and increases the penalty for the offence within the meaning of s 20C(3) ... . ... In our respectful opinion the real effect of Part 9A is, at least prima facie, to ensure that, in respect of sentences to which it applies, the offender will serve a greater proportion of his or her sentence in actual custody. In our view neither s. 11(2) nor s. 20C(3) should be given a narrow technical construction. The purpose of each would be contravened if Part 9A were to apply to offences committed before it commenced.”

[68] Their Honours said this about s 204 of the PSA (at 188):

“But, read literally, s. 204(1) as applied by s. 14H(1)(a), would apply any provision subsequently added by amendment to the Act to any sentence imposed after ... the date of commencement of s. 204, notwithstanding that the sentence was imposed before the provision became law. That was plainly not its intention. It was a transitional provision in the original Act, its purpose being to ensure that any sentence imposed after 27 November 1992 would be subject to the terms of the Act as originally enacted notwithstanding that the offence in respect of which it was imposed was committed before that date. It could not have intended to apply any future amendments to all sentences imposed after that date.”

[69] In my respectful opinion this is a serious misunderstanding of the effect of s 204(1) and 14H(1)(a). It is no doubt right to say that their combined effect is not “to apply any future amendments to all sentences imposed” at any time after the commencement of the PSA. Such a reading of the sections would require a sentencing court to take account of amendments before they were enacted. But that is not what the two sections do. They do not impose a subsequent altered state of the law on a sentencing process concluded before the amendment was enacted. A plain reading of the sections is that the law to be applied when passing sentence is to be found in the PSA as it stands at the time the sentence is imposed regardless of when the offence was committed, as Fraser JA pointed out in Flew.

[70] Notwithstanding the misunderstanding of s 204 Mason can be accepted as authority for the proposition that Part 9A of the PSA was to be applied only to offences committed after the 1997 amendments. That this was the point in issue appears in the passage at 187:

“Those declarations were made pursuant to s. 161B of the ... PSA… That section is in Part 9A which came into operation on 1 July 1997. The offences ... were all committed (in) ... September 1996. ... the appellants were ... sentenced on ... 22 August (1997) ... . The question, … is wider than whether the declarations should have been made for, if Part 9A applies to offences committed before it commenced, those offences ... were serious violent offences whether or not declarations were made”.

[71] The essence of the reasoning in Mason is that (i) Section 11(2) of the Criminal Code and s 20C(3) of the Interpretation Act displace the application of s 14H of the Interpretation Act so that s 204 does not apply Part 9A retrospectively; (ii) Section 11(2) and s 20C(3) together with the Explanatory Notes provide compelling grounds for construing the amendments inserting Part 9A as operating prospectively. This conclusion depends on characterising Part 9A as increasing a maximum penalty, or making an offender liable to be punished to a greater extent than formerly.

[72] The judgment in Truong expressed some doubt about the correctness of Mason. The Court thought it was “arguable” whether the 1997 amendments:

“... increased any actual penalties, although it plainly subjected offenders to a regime under which a greater part of the sentences are to be served. However, this matter was determined in R. v. Mason and Saunders ... upon a broad consideration of what amounts to an increase of punishment.”

[73] It noted a submission that the reasoning in Mason was inconsistent with what had been said in Siganto v The Queen (1997) 194 CLR 656 and went on ([2000] 1 Qd R 663 at 669):

“In these circumstances we would hold that s. 9 of the ... PSA, both before and after the 1997 amendment, is a purely procedural provision and that nothing in s. 11 of the Code or in s. 20 or s. 20C of the ... Interpretation Act entitle the applicant to be sentenced according to the earlier version of s. 9. However, we would not at this stage be prepared to depart from the view taken by this court in ... Mason ... in relation to the non-application of Part 9A to offences committed before 1 July 1997.”

[74] The point concerning Part 9A arose again in R v S [1999] QCA 311. Pincus JA noted that:

‘In Truong a remark was made implying doubt about the correctness of Mason and Saunders”

but expressed the opinion that the decision was:

“... correct and should be followed.”

[75] The President agreed that Mason should be followed and thought that it was:

“... not affected by the decision … in R v Truong which held that s 9 ... of the ... PSA ... both before and after the 1997 amendment, is purely procedural and therefore has application to sentences imposed after the 1997 amendment regardless of when the offences occurred.”

[76] The point also emerged in The Queen v Breeze [1999] QCA 303. The Court (Pincus and Davies JJA, Demack J) rejected the doubt expressed in Truong about the correctness of Mason but nevertheless thought that Truong should be followed. It is important that the court in Breeze expressly endorsed Truong. It did however say:

“The Court gave as one of the reasons for its conclusion in Truong that the factors prescribed in s 9 ... are procedural. It is not, with respect, evident that laws relating to the matters taken into account in determining the level of sentence are other than substantive; for example, if the Parliament decreed that no or little discount should be given for a plea of guilty or for co-operation with the police, that would be a change in the substantive law.

...

The Explanatory Notes to the bill which became the 1997 amendment included the statement that the legislation would not be retrospective ... . Mason ... should continue to be followed, on the question of retrospectivity.”

[77] It is necessary to say something about Siganto because that case was relied on in Truong to criticise Mason and was in turn criticised in Breeze.

[78] Siganto was convicted and jailed for rape after the enactment of the Sentencing Act 1995 (NT) which required the non-parole period of a sentence be not less than 70 per cent of the term imposed for offences of the type committed by Siganto. A further legislative amendment abolished remissions for good conduct. The rape was committed before the Act came into force, but by s 130 the Act applied to a sentence imposed after the commencement of the section (and the Act) irrespective of when the offence was committed. Notwithstanding this express provision Siganto argued that the Sentencing Act should not apply to him because of s 14(2) of the Criminal Code (NT) (which is relevantly identical to s 11(2) of the Queensland Code) or because of s 121 of the Sentencing Act itself. That provided that where Act or an instrument of a legislative or administrative character increased the penalty for an offence the increase applied only to offences committed after the commencement of the provision effecting the increase.

[79] The Court of Criminal Appeal (Martin CJ, Kearney and Priestley JJ) said (1997) 97 A Crim R 60 at 66:

“The applicant submitted that ... to abolish ... remission ... amounts to an increase in punishment, in that it has the effect of increasing the period during which the applicant must be confined ... Similarly, he stood to be punished to a greater extent because of the changes in the law in relation to the fixing of a non-parole period ...

The maximum penalty ... for rape at the time of the offence was life imprisonment. That was not changed by the Sentencing Act. The sentence to imprisonment imposed did not amount to a punishment to a greater extent than was authorised by the law at the time when the impugned conduct occurred. There had been no change in that law. In so far as remissions were concerned, that was a matter outside the jurisdiction of the courts. It was regarded as having been in the nature of an exercise of prerogative of mercy. ... As to the fixing of a non-parole period, it too is a benefit, a means by which a prisoner might be released from punishment by way of imprisonment earlier than the full term of the sentence.

We have indicated that we do not consider that s 14(2) of the Criminal Code has any application ... . That is because ... ‘the law in force’, referred to in subs (2), is the same as ‘the law in force’ referred to in subs (1). That law is the law constituting an offence, and that law did not change from the time of the commission of the offence to the time of the conviction.

...

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.”

[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):

“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).”

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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:

“Section 9 as amended by the Sexual Offences (Protection of Children) Amendment Act 2003, section 28, applies to the sentencing of an offender whether the offence or conviction happened before or after the commencement of that section.”

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.

[91] The implication becomes impossible to make when one has regard to the Explanatory Notes to the Sexual Offences (Protection of Children) Amendment Bill 2002. It was there recognised that:

“... 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.

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.”

[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.

[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.

Does the point matter?

[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.

[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.

Were the sentences manifestly excessive?

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[104] I would refuse leave to appeal against sentence.

[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.

[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.

[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) 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.

[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.

[109] I would refuse leave to appeal against the sentence.

Footnotes

1. [2008] QCA 268. ↩

2. [2008] QCA 220. ↩

3. [2008] QCA 268 at [32]. ↩

4. [2008] QCA 220 at [25]. ↩

5. These offences are Classification of Computer Games and Images Act 1995 (Qld), s 28; Classification of Films Act 1991 (Qld), s 41(3), s 42(3), s 42(4) or s 43; Classification of Publications Act 1991 (Qld), s 12, s 13, s 14, s 15, s 16, s 17; Criminal Code 1899 (Qld), s 228A, s 228B, s 228C, s 228D. ↩

6. Added by Sexual Offences (Protection of Children) Amendment Act 2003 (Qld), s 28. ↩

7. Added by Sexual Offences (Protection of Children) Amendment Act 2003 (Qld), s 29. ↩

8. [1999] QCA 21. ↩

9. [1999] QCA 303. ↩

10. R v Breeze [1999] QCA 303 at 6 [10], and 7 [10]. ↩

11. [1998] 2 Qd R 186. ↩

12. [1997] QCA 316. ↩

13. As defined under 1992 (Qld), Pt 9A.