[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Respondent.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Baseline sentencing – Incest – Median sentence – Median as statistical product of series of numbers – Parliament’s intention that future median sentence be 10 years’ imprisonment – Statistical period not specified – Absence of legislative mechanism for achievement of intended median – Gap in legislation – Whether court can fill gap – Non-judicial function – Whether necessary implication – Provisions incapable of practical operation – No sentencing error – Appeal dismissed – Sentencing Act 1991 s 5A.
STATUTORY INTERPRETATION – Legislative intention – Sentencing – Baseline sentencing – Median sentence – Median as statistical product of series of numbers – Parliament’s intention that future median sentence be 10 years’ imprisonment – Statistical period not specified – Absence of legislative mechanism for achievement of intended median – Gap in legislation – Whether court can fill gap – Non-judicial function – Whether necessary implication – Function of explanatory note – Extrinsic materials – Whether statements in second reading speech can fill gap in legislation – Presumptions – Presumption against overturning common law doctrines – Provisions incapable of practical operation – Sentencing Act 1991 s 5A.
WORDS AND PHRASES – ‘median’, ‘median sentence’.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr J Champion SC with Ms F L Dalziel
Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Respondent
Mr T Marsh with Mr A Pyne
Victoria Legal Aid
For the Criminal Bar Association (as amicus curiae)
Ms L A Taylor QC
MAXWELL P REDLICH JA TATE JA PRIEST JA:
Summary
As so often in the work of an appellate court, this appeal turns on a question of statutory interpretation. And, as so often in the work of this Court, it is the provisions of the Sentencing Act 1991 which fall to be interpreted — in this case, provisions inserted in 2014 to introduce what is described as ‘baseline sentencing’.
Interpreting statutory provisions requires consideration of the legislative context and — where relevant — the legislative history. But, as the High Court has repeatedly emphasised, the task of statutory interpretation begins, and ends, with the words which Parliament has used.[2] For it is through the statutory text that the legislature expresses, and communicates, its intention.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
DPP v Walters [2015] VSCA 303
Case
[2015] VSCA 303
Decision Date
CaseChat Overview and Summary
In the case of the Director of Public Prosecutions v Walters, the appeal was made by the Crown against the sentence imposed on the defendant for the crime of incest. The case was heard in the court of appeal. The central issue before the court was whether the sentencing court had erred in its application of the Sentencing Act 1991 when determining the appropriate sentence for the defendant. Specifically, the court needed to decide whether the trial judge had correctly applied the principle of baseline sentencing and whether the intended median sentence of ten years was properly taken into account.
The court considered the legislative intent behind the Sentencing Act 1991, particularly the requirement for a median sentence of ten years for incest offences. However, the court found that there was no specified statistical period for this median sentence and no legislative mechanism to achieve it. The absence of such a mechanism created a gap in the legislation. The court then examined whether it could fill this gap, noting that doing so would involve a non-judicial function and questioning whether such an implication was necessary. The court concluded that it could not fill the legislative gap and that the provisions were not incapable of practical operation. The appeal was dismissed as there was no sentencing error.
The court ultimately held that the trial judge had not erred in sentencing the defendant. The court found that the sentencing principles were correctly applied and that the intended legislative intent could not be achieved due to the absence of a specified statistical period and legislative mechanism. The appeal was dismissed without any further orders.