Judge questions use of repealed VLAD laws in current criminal case

A judge has invited Queensland prosecutors to reconsider proceeding with a case against two men under the state’s repealed Vicious Lawless Association Disestablishment Act (VLAD Act), which was scrapped just under five years ago.

The invitation was extended by Supreme Court Justice Helen Bowskill last Wednesday 6 October to the Director of Public Prosecutions after the two men facing the court for an assault and other offences pleaded guilty to the offences, but not guilty to accompanying allegations, that each was a “vicious lawless associate” and “an office bearer of the relevant association”.

On September 23, Ian Ronald Crowden and Matthew Grant Lambert pleaded guilty to criminal offences including assaulting Shannon David Arnold while armed and in company at Stapylton, 40km south of Brisbane, on 20 April 2015.

Justice Bowskill, in an 18-page written decision, said the DPP did not accept the men’s pleas in full discharge of the indictment because they refused to accept the additional elements of the charge – which included that the offence was committed while each was a “vicious lawless associate” and “an office bearer of the relevant association”.

On 17 October 2012, the Queensland Parliament led by Campbell Newman’s LNP Government enacted the Vicious Lawless Association Disestablishment Act 2013, which was designed to impose harsh mandatory sentences of 10 to 15 years that were to be served cumulatively with any other sanctions imposed for crimes committed by offenders.

Just over three years later, and after a change of government led by Annastacia Palaszczuk’s Labor Party on 9 December 2016, the VLAD Act was repealed following a recommendation from a Taskforce on Organised Crime Legislation.

Justice Bowskill, by way of explanation, said: “The repeal of the VLAD Act, in its entirety, was in circumstances where… ‘the taskforce considered that the criticisms of the VLAD Act by the High Court of Australia (Kuczborski v Queensland (2014) 89 ALJR 59) could not be overcome.’

“The taskforce considered there to be genuine concern over its constitutional vulnerability, in particular that the effect of the discretion vested in the (Queensland) Commissioner of Police in assessing the calibre of cooperation by an offender may be a usurpation to judicial power.”

Justice Bowskill said the VLAD Act had been established as a “penalty regime” designed “to cultivate informants within associations and to deny individual members the assistance and support usually provided by their grouping”.

She said the laws had also been established to impose mandatory cumulative sentences of 15 years’ jail to any sentence imposed on an offender deemed a “vicious lawless associate” and an additional 10-years for “an office bearer of a relevant association”.

In considering the matter, Justice Bowskill noted that, while the alleged offences committed by Crowden and Lambert were committed while the VLAD laws were in place, neither had been charged with that aspect of the offence until June 2019 – almost three years after the laws were repealed.

“The present case, involving the defendants Crowden and Lambert is, it is to be hoped … the last of the cases of potential application of the VLAD Act which may come before the court,” her Honour said.

“I have formed the view that the repealed VLAD Act cannot be relied upon as a basis to impose the additional punishment on the defendants presently before the court.

“In light of that conclusion, I will invite the Director of Public Prosecutions to reconsider whether he regards it as appropriate to proceed with a prosecution which includes reliance upon the repealed legislation, in circumstances where the contemplated punishment cannot be imposed.”

Crowden has pleaded guilty to three counts of assault causing bodily harm while armed or in company, two counts of burglary and stealing, and one of extortion.

Lambert has pleaded guilty to assaulting causing bodily harm while armed and in company, and stealing.

It is unclear at this stage how the DPP intends to proceed with the matter.

Read the decision.

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