DPP v Woodford
[2017] VSCA 312
•31 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0042
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| HARLEY DAVID WOODFORD | Respondent |
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| JUDGES: | WEINBERG, OSBORN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 October 2017 |
| DATE OF JUDGMENT: | 31 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 312 |
| JUDGMENT APPEALED FROM: | DPP v Woodford (Unreported, Supreme Court of Victoria, Justice J Dixon, 24 February 2017) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Child homicide – Respondent, in spontaneous act of anger, stepped on three year old child, resulting in death – Sentenced to nine years and six months’ imprisonment with non-parole period of six years and six months – Whether sentence manifestly inadequate – Use of extrinsic material in construing provision creating new offence – Whether manifested legislative intent to have courts impose significant heavier sentences for child homicide than traditionally given for manslaughter of young children – Respondent confessed to offence in circumstances where conviction might not have been possible absent his having done so – Significant sentence discount necessary by reason of confession – Sentence lenient but not wholly outside range – Appeal dismissed – Crimes Act 1958 s 5A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C B Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Ms M Fox QC with Mr S A Moglia | Lethbridges Barristers & Solicitors |
WEINBERG JA
OSBORN JA
PRIEST JA:
On 17 February 2017, the respondent pleaded guilty to a charge of child homicide, contrary to s 5A of the Crimes Act 1958. He was sentenced to a term of nine years and six months’ imprisonment, with a non-parole period of six years and six months. The maximum penalty for that offence is 20 years’ imprisonment.
The Director of Public Prosecutions now appeals against that sentence. He contends that both the total effective sentence, and the non-parole period, are manifestly inadequate. He relies upon the following particulars:
The learned sentencing judge failed to have sufficient regard to:
(a) The nature of the offence being child homicide;
(b) The change in regime that occurred when this offence was introduced;
(c) The aggravating feature of the age of the victim;
(d) The applicable maximum penalty;
(e) The objective gravity of the offending;
(f) The seriousness of the offence;
(g) The gross breach of trust;
(h)The aggravating features of the concealment of the crime causing the deceased pain and misery and the delay in obtaining medical attention; and
(i) The need for general and specific deterrence.
The learned sentencing judge placed too much weight on matters in mitigation, including the following:
(j) The respondent’s youth;
(k) The respondent’s remorse; and
(l) The respondent’s reasonable prospects of rehabilitation.
Child homicide
The offence of child homicide was introduced into the Crimes Act by the Crimes Amendment (Child Homicide) Act 2008. Section 5A provides:
A person who, by his or her conduct, kills a child who is under the age of 6 years in circumstances that, but for this section, would constitute manslaughter is guilty of child homicide, and not of manslaughter, and liable to level 3 imprisonment (20 years maximum).
The then Attorney-General, Rob Hulls, explained the reason for the introduction of this new offence in his Second Reading Speech. He said it had been developed in order to meet perceived concerns regarding the adequacy of sentences for the manslaughter of very young children. More specifically, he referred to a number of recent cases where persons dealt with for manslaughter had received what were considered to be unduly lenient sentences.
The Attorney-General stated that the new offence was intended to encourage courts to impose sentences that were closer to the maximum term of twenty years than those typically being imposed for manslaughter. He suggested that the provision, by focusing upon the age and vulnerability of the victim as key elements of the new offence, would highlight to judges the importance of these matters as aggravating factors, warranting the imposition of heavier sentences than those previously regarded as appropriate.
Mr Hulls then added that current sentencing practices for manslaughter, as they had developed, were ill-equipped for dealing with instances of manslaughter of young children. The new offence would give scope to the courts to develop an entirely new sentencing practice, and enable them to depart from the constraints associated with past practices. Previous sentences imposed for manslaughter, including those involving very young children as victims, would continue to be relevant as a general guide. However, they would not constrain judges to the extent that they had in the past.
Despite the fact that this offence was created as far back as 2008, it seems that the respondent is only the second person to be dealt with for child homicide.[1] That makes it more difficult than it might otherwise be to gauge whether the sentence imposed in this case was, as the Director contends, manifestly inadequate.
[1]See R v Hughes [2015] VSC 312 (‘Hughes’).
Circumstances of the offending
In August 2013, the respondent began a relationship with a young woman, Angie Roberts. After a time, he moved into her home in Ararat, where she lived with her two young children from a previous relationship. In January 2015, she gave birth to the couple’s son, WJ.
At the date of the offending, on 16 September 2015, Ms Roberts’ elder son, LT, was aged five. The victim of this offence, her daughter, Bella, was aged three. WJ was, at that date, aged eight months.
On the evening in question, Ms Roberts had gone out for a drive with her two sons, in order to settle the younger one. The respondent remained at home, looking after Bella. He was cleaning up after dinner. As he took some dishes from the lounge to the kitchen, he somehow tripped over her, as she was playing on the floor. She was knocked on to her back.
In a flash of anger, the respondent deliberately stepped on her abdomen with one foot, and lifted the other off the ground. He thereby placed the entire weight of his body, some 100 kilos, on to her stomach.
It seems that Bella almost immediately displayed signs of distress. Shortly afterwards, he told her not to tell her mother what he had done, other than to inform her if she had a belly ache. According to the respondent, Bella was upset. He put her to bed, with a bottle of water.
When Ms Roberts returned home, the respondent made no mention of what had taken place. He said nothing about Bella having been hurt. He just told her that he had put Bella to bed as she was not feeling well.
The next morning, the respondent left early for work. Later that same morning, Bella complained to her mother that she felt sick. She said that she had a sore stomach. As Ms Roberts knew nothing of what had occurred the previous evening, she did not seek medical attention for her. Rather, she took Bella with her, while she dropped LT off at kindergarten.
At that point, Bella told her mother that she was going to be sick. Ms Roberts then drove home with Bella and her younger son. She sat Bella down in front of the television. After a while, Bella appeared to be seriously ill. Indeed, she became non-responsive. Ms Roberts telephoned the respondent and told him that Bella was sick. He came home at once, at about midday. He tried to get Bella off the couch, but she was unable to stand on her own, and simply collapsed.
Ms Roberts and the respondent then drove Bella to hospital. By the time they got there, she was unconscious. She was pronounced dead at 1:14 pm.
The emergency doctor who treated her observed that Bella had fixed and large pupils. He regarded these as indicative of brain injury, or perhaps even brain death. He also noted dark bruising on her legs, arms and chest. Blood tests indicated that she had a low haemoglobin and white blood cell count.
Several days later, on 21 September 2015, Dr Matthew Lynch, a pathologist, conducted an autopsy. He found that Bella had:
·multiple bruises, with recent injuries to her face, scalp, chest, abdomen, back and both arms and legs;
·a ruptured liver;
·colonic haemorrhage;
·haemorrhage to both kidneys; and
·600ml of blood inside her abdominal cavity.[2]
[2]This volume of blood represented about 60 percent of Bella’s total blood volume.
There were then a series of tests ordered. For reasons that are not entirely clear, it took the best part of six months before the results of these tests became available.
On 9 March 2016, Dr Lynch finalised his pathology report, after having obtained toxicological, diagnostic imaging, and neuropathological results. He gave consideration as to whether a blood disorder, or cardiopulmonary resuscitation efforts may have contributed to the child’s internal bleeding. He concluded that they had not.
Dr Lynch determined that death had been brought about by complications arising out of ‘blunt force trauma to the abdomen’. It seems that he was no more specific regarding the nature of that blunt force trauma than that. He noted that the low haemoglobin level was consistent with extensive intra-abdominal haemorrhage.
Both Ms Roberts and the respondent were interviewed by police shortly after Bella’s death. In his initial statement, made on 22 September 2015, the respondent acknowledged that he had, in the past, smacked her on the hands and backside in order to discipline her. However, he denied ever having done so forcefully. He told police that LT had recently been rough with Bella, and added that she bruised easily, thereby implicitly suggesting that LT’s actions may have contributed to her death. He added that Bella had fallen from a camper van a few weeks previously, and that this had led to bruising on her belly.
On 1 April 2016, the Coroner’s Office advised Ms Roberts that a police investigation would be conducted into the cause of Bella’s death. She informed the respondent of this. Soon afterwards, he went to the police, and confessed to what he had done. He made frank and full admissions in the course of a formal record of interview.
On 5 April 2016, the respondent was arrested and charged with child homicide. He remained in custody from that day onwards.
On 21 September 2016, at the committal hearing, the respondent entered a plea of guilty to that charge. It was common ground that this plea was made at the earliest practical opportunity.
Sentencing remarks
The sentencing judge acknowledged the ‘devastating’ impact of Bella’s death upon her family. Her Honour found that the objective gravity of the offence was aggravated by the respondent’s initial attempts to avoid responsibility, and by his having, for six months or so, concealed what he had done from Ms Roberts. She noted that this meant that, instead of receiving immediate medical attention, as ought to have occurred, Bella had languished at home, obviously in pain, and distress.
The sentencing judge specifically rejected a submission made on behalf of the respondent that his initial inaction had been motivated by his hope that Bella was not badly hurt. She found that his moral culpability was all the greater by reason of the delay that occurred between the infliction of the injury, and the time the next day that Bella was finally taken to hospital.
Her Honour accepted that this delay had been caused, in part, by the respondent’s shame regarding his actions, as well as his fear of the consequences. She said that this in no way reduced his moral culpability.
The sentencing judge acknowledged that, when the respondent finally confessed to police what he had done, he did not seek to downplay the callousness of his actions.
Importantly, the sentencing judge noted that the respondent’s confession was integral to the ability of the prosecution to convict him of this offence. She observed:
…your counsel submitted that your confession is very significant because without it the Crown may not have obtained a conviction. In my view, there is merit in this submission, in light of the state of the evidence gathered by police prior to your confession.[3]
[3]DPP v Woodford (Unreported, Supreme Court of Victoria, Justice J Dixon, 24 February 2017), [63] (‘Reasons’).
She added:
Your decision to plead guilty has spared Bella’s family the ordeal of a lengthy criminal trial.[4]
[4]Ibid.
In canvassing the respondent’s personal circumstances, her Honour noted his youth, he having been aged only 20 at the time of the offending. He had no prior convictions of any kind. His father had died when he was very young. He had been rebellious as a child, resistant to his mother’s re-partnering after his father’s death. He had left school after year nine, but, to his credit, had managed to find work in semi-skilled roles.
The sentencing judge then noted that the respondent had been assessed by Mr Patrick Newton, an experienced forensic psychologist, for the purposes of the plea. He had admitted to Mr Newton that he had a short temper, and was prone to anger over minor things. Mr Newton considered that he lacked the strategies to avoid angry outbursts or aggressive behaviour. He noted that the respondent smoked cannabis every evening in order to relieve feelings of stress.
In his report, Mr Newton had expressed the opinion that it was likely that the respondent’s use of cannabis had served to increase his anxiety and agitation, and had undermined his ability to cope with his work and family commitments. Additionally, Mr Newton had observed that the respondent had a tendency to be impulsive, and to make poor decisions.
In addition to preparing his written report, Mr Newton gave evidence on the plea. He made it clear that, in his opinion, the respondent’s prospects of rehabilitation were dependent upon his receiving appropriate treatment for his various problems. He observed that this might be difficult within a custodial setting.
The sentencing judge then observed that the respondent would undoubtedly find imprisonment difficult and, made more burdensome by the fact that he was, even at that stage, being targeted by other prisoners. Self-evidently, that was by reason of the nature of his crime.
Her Honour noted that Mr Newton had diagnosed the respondent with ‘Adjustment Disorder with Mixed Anxiety and Depressed Mood’. She further noted that he had concluded that the respondent was at risk of deterioration following sentencing, in the context of isolation within a prison setting.
Mr Newton also diagnosed the respondent with ‘Severe Cannabis-Use Disorder’, but said that his being in a controlled environment meant that he was in remission regarding that condition.
The sentencing judge then turned to the question of why the respondent had done what he did. She said:
In the end there is no satisfactory explanation for why you offended in the way that you did other than immaturity, an inability to manage anger and a lack of capacity to manage the demands of full time work alongside the new responsibility of parenting three small children.[5]
[5]Reasons [58].
Her Honour found that the respondent was genuinely remorseful. The Director did not challenge that finding before this Court. As indicated, the judge also accepted that his guilty plea had significant utilitarian benefits, which it plainly did.
With regard to the respondent’s prospects of rehabilitation, she said:
In my view, your prospects for rehabilitation are reasonable in light of your youth, your past good character, the social support available to you from family and friends, your employment history and your willingness to surrender yourself to police rather than succumbing to the temptation of continuing to try and avoid being successfully prosecuted for your crime.[6]
[6]Reasons [77].
For these reasons, the sentencing judge said that she would impose a shorter non-parole period than might otherwise be appropriate.
Finally, her Honour referred to R v Debresay,[7] also a case involving the unlawful killing by a young man of a child in his care. There, T Forrest J sentenced the offender to a term of 11 years’ imprisonment with a non-parole period of eight years, after a trial. His Honour observed that a person who, in the role of a parent, betrays the trust reposed in him, and takes out his anger and frustration in a spontaneous act of violence that leads to the death of a child, necessarily has a high degree of moral culpability.
[7][2016] VSC 804 (‘Debresay’). It should be noted that the conviction of the offender in that case was overturned on appeal: [2017] VSCA 263.
Director’s submissions
The Director acknowledged that child homicide, as set out in s 5A, has the same basic elements as the offence of manslaughter, with one major difference. It is an element of child homicide that the victim was below the age of six, and in such a case manslaughter is not an available option.
The Director argued that by rendering the age of the victim an additional element of this offence, the legislature had given recognition to the vulnerability of a child of less than six years of age. It had thereby emphasised the distinctly heinous nature of an unlawful killing in such a case.
Senior Counsel, who appeared on behalf of the Director, referred to the Second Reading Speech in support of his contention that child homicide should be viewed by this Court as a necessarily more serious offence than ordinary manslaughter. He submitted that Parliament’s intention in creating the new offence was to send a clear and unmistakable message to the courts to impose significantly heavier sentences for this offence than had been the case in the past. The sentence of nine years and six months’ imprisonment, imposed in this case, failed to give effect to that legislative intent.
Senior Counsel traced the impetus behind the enactment of s 5A to some comments made by the Court of Appeal in 2007 in Director of Public Prosecutions v Arney.[8] There, in dealing with a Crown appeal against sentence, the Court expressed concern as to what it regarded as a disconformity between manslaughter sentences generally, and the maximum penalty of 20 years for that offence. It focused in particular upon the extent of that disconformity in the context of the death of young children brought about by their parents or carers. In that case, a sentence of seven years’ imprisonment for manslaughter was increased to one of nine years’ imprisonment, but it was stated clearly that, but for the principle of double jeopardy, a significantly longer term of imprisonment would have been imposed.
[8][2007] VSCA 126 (‘Arney’).
Senior Counsel argued that the very fact that these comments in Arney appeared to have prompted the introduction of the new offence of child homicide should, of itself, persuade this Court that the sentence imposed below was manifestly inadequate.[9]
[9]Senior Counsel acknowledged that the offending in Arney was, in a number of respects, worse than that of the respondent in this case. There was evidence of a history of mistreatment of the child by the offender in Arney, which was itself a significant aggravating factor not present here.
Senior Counsel next referred to R v Kesic.[10] There this Court held that a sentence of ten years’ imprisonment, with a non-parole period of seven years, for manslaughter, was not manifestly excessive. In that case, the death of a three year old child had resulted from shaking.
[10][2001] VSCA 171.
Senior Counsel then referred to Director of Public Prosecutions v McMaster.[11] Once again, that was a case of manslaughter, rather than child homicide. There, a sentence of twelve years and six months’ imprisonment, with a non-parole period of 10 years, was held not to be manifestly inadequate.[12] He acknowledged that the abuse in McMaster had been ongoing, making it a worse case, in some respects, than the present.
[11](2008) 19 VR 191 (‘McMaster’).
[12]The total effective sentence in McMaster was actually 13 years’ imprisonment, six months of that sentence being added to the sentence for manslaughter, it being the product of a separate offence.
Senior Counsel referred to R v Hughes,[13] which is, so far as we are aware, the only case, apart from the present, dealing with child homicide in this State. In Hughes, the offender was sentenced to nine years’ imprisonment on the charge of child homicide, and an additional six months’ cumulative for two other offences. He noted that the sentencing judge in that case had sentenced the offender on the basis that he was being dealt with for manslaughter, rather than child homicide. That was because the offender in Hughes had initially pleaded guilty to manslaughter, on the erroneous assumption that he would be dealt with for that offence, rather than child homicide. It was the trial judge who pointed out that manslaughter was no longer available to be charged where the victim was aged less than six.
[13][2015] VSC 312.
Senior Counsel accepted that the sentences imposed in Arney and McMaster were stern, and suggested that, by the time s 5A was enacted, sentences for the manslaughter of young children had increased significantly. However, he submitted that the sentence imposed in the present case was at the lower end of even the comparable manslaughter sentences that were being given in the period leading up to the creation of the new offence.
Senior Counsel argued that the sentencing judge, in her treatment of Debresay, appeared to have regarded the sentence of 11 years’ imprisonment, with a non-parole period of eight years, as fixing the boundaries of child homicide, in a case where the accused stood trial. It was submitted that her Honour may have worked downwards from that sentence, having regard to the mitigating factors present in this case that were not available to the offender in Debresay.
In his last reference to comparable cases, Senior Counsel drew attention to Director of Public Prosecutions v Quach.[14] There, the sentencing judge imposed a sentence of 11 years’ imprisonment, with a non-parole period of eight years, on a 23 year old offender, with no prior convictions. In circumstances not greatly dissimilar from those of the present offender, he had killed the three year old daughter of his partner by pushing her hard against a bathroom basin, as well as against the floor.
[14][2007] VSC 504.
Finally, Senior Counsel acknowledged that the respondent was entitled to rely, by way of mitigation, upon his plea of guilty, his remorse, his reasonable prospects of rehabilitation, his relative youth,[15] and the various other mitigating factors identified by her Honour. Significantly, he did not refer specifically to one of the most important of those mitigating factors, namely the respondent’s confession to police, without which he might never have been able to be prosecuted.
[15]Senior Counsel submitted that, with regard to youth, offences of this nature against young children are commonly committed by young offenders. He noted that the offender in Arney was aged 24 and in Quach aged 22. Given that fact, he submitted that general deterrence had to play a major role in sentencing for this offence, and that it had been undervalued.
Respondent’s submissions
Senior Counsel for the respondent submitted that the sentence imposed upon her client, though arguably lenient, could not be said to be wholly outside the range of sentences reasonably open to the sentencing judge. She argued that, merely because the sentence might be seen to be within the range of sentences typically imposed in the past, for manslaughter, did not mean that it was outside the range for child homicide. The ranges available under either offence were not mutually exclusive.
Senior Counsel conceded that the introduction of the offence of child homicide was plainly intended to focus attention upon the age and vulnerability of the victim. It might even be said that this was done with a view to these factors being treated as especially aggravating features of this type of offence.
However, she submitted that it did not follow from that concession that, before the creation of the new offence, the age and vulnerability of the victim were of little moment. That was far from true.
With regard to the Second Reading Speech, and the Attorney-General’s comments regarding the need for courts to increase significantly the sentences to be imposed for the killing of young children, Senior Counsel submitted that statements of that kind, contained in extrinsic material, should not be read as though they were the words of the statute themselves. To do so would be to undermine the independence of the judiciary, and to subvert the role of the courts in favour of mere expressions of executive intent, but not found in the legislation itself.
Senior Counsel next submitted that the Director’s references to Arney were not of great assistance. The Court there gave due weight to the particular facts of that case, including the age and vulnerability of the child.
Senior Counsel noted that, not surprisingly, the Director had pointed to very few cases as relevant comparators. That made the task of identifying a ‘current sentencing practice’ all but impossible.
Senior Counsel challenged the Director’s assertion that the sentencing judge in this case had been unduly influenced by the sentence imposed upon the offender in Hughes. His Honour’s observation in that case that there were no current sentencing practices for child homicide did not mean that well-established aggravating factors, including age and vulnerability, were not there given appropriate weight.
Senior Counsel also rejected the Director’s submission that the sentencing judge in the present case gave undue weight to the sentence imposed in Debresay, using it as a benchmark for the sentence imposed here. The only reference to Debresay in her Honour’s sentencing remarks was a passing observation, in a final quote, regarding the objective gravity of offences of this type.
Senior Counsel submitted that the respondent’s failure to inform his partner, immediately upon her return, that he had injured Bella, and his further failure to take her to hospital at once, featured prominently in the plea. It could not be said that her Honour had overlooked the significance of these matters as possible aggravating factors.
Senior Counsel next submitted that the respondent had available to him a number of significant mitigating factors, all of which in combination made it clear that this sentence was not manifestly inadequate. We shall deal with these mitigating factors in some detail in our conclusion.
Senior Counsel’s last point regarding manifest inadequacy was to remind the Court that the sentence could not be set aside simply because we might, or even would, have imposed a different, and longer, term of imprisonment.[16]
[16]She referred to Director of Public Prosecutions v Karazisis (2010) 31 VR 634.
Finally, and very much as a fall back submission, Senior Counsel argued that, even if this Court were to find that the sentence imposed in this case was manifestly inadequate, it should exercise its residual discretion not to intervene. The primary purpose of Crown appeals was to lay down principles for the governance and guidance of sentencing courts. That could be done without interfering with this sentence. She reminded the Court that the burden lay upon the Crown to show why the residual discretion should not be exercised.[17]
[17]CMB v AG (NSW) (2015) 256 CLR 346.
Senior Counsel submitted that the sentencing judge had carefully considered the respondent’s youth, as well as his prospects of rehabilitation. For that reason she had structured her sentence to maximise his prospects of being supported and rehabilitated when eventually released. As a result, she had fixed a lower than usual non-parole period. She had been perfectly entitled to do so.
Conclusion
As with all matters involving the tragic death of a young child, this case is profoundly distressing. There is justifiable outrage, on the part of the community, at what the respondent did on the night in question. It is hard to imagine conduct more callous than that of stepping onto the abdomen of a three year old child, effectively crushing her to death.
The Director submitted that the creation of the new offence of child homicide should be understood as manifesting a clear legislative intent that those who commit that offence will receive condign punishment, much closer to the 20 year maximum than past manslaughter sentences had been. As noted earlier, he relied primarily upon the Second Reading Speech in support of that submission.
The Director’s submission cannot be accepted in that form. Of course, neither s 5A itself, nor the text of the Crimes Amendment (Child Homicide) Act 2008 by which it was introduced, says anything at all about the way in which sentencing judges should approach this new offence. We know from the text that child homicide retains all of the elements of manslaughter (and, in the present case, of unlawful and dangerous act manslaughter), as the basic components of the offence. The sole addition to those elements is that the victim must be aged less than six.
Yet, the fact that the victim happens to be a very young and vulnerable child has always been treated as a significant aggravating factor for all offences involving violence, including both murder and manslaughter.
In one sense, therefore, the creation of the new offence might be thought to have been unnecessary. It did, however, have one clear legislative purpose. By changing the name of the offence from manslaughter to child homicide (and by adding the element of the age of the child), it ‘uncoupled’ sentences for this new offence from any constraints that may have existed with regard to ‘current sentencing practices’ for manslaughter.
The High Court has, on a number of occasions, spoken of the need to adopt a ‘purposive approach’ to statutory construction.[18] This means that one must have regard to the state of the law, and the mischief that the relevant provision was intended to remedy, when interpreting the particular provision under consideration. It does not mean, however, that a court is simply entitled to read words into a statute that are not there.
[18]In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the majority stated that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The process of construction, it was said, ‘must always begin by examining the context of the provision that is being construed’. The purpose of the statute may require a particular provision to be read in a way that does not correspond with the literal or grammatical meaning.
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT), the High Court stated:
… that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[19]
[19](2003) 239 CLR 27, 46 [47] (citations omitted).
In Saeed v Minister for Immigration and Citizenship,[20] the High Court considered the effect, upon the particular issue of statutory construction that had been raised, of the contents of the explanatory memorandum to the amending legislation, and the Second Reading Speech. It was noted that, insofar as legislative ‘intention’ was to be ascertained, what was involved was an inquiry into the intention manifested by the legislation itself, and not the subjective views of those responsible for its having been drafted. Accordingly, statements as to legislative intention made in explanatory memoranda, or Second Reading Speeches, however clear or emphatic they might be, could not overcome the need to carefully consider the actual text in order to ascertain its meaning. In other words, extrinsic materials cannot displace the meaning of the statutory text.[21]
[20](2010) 241 CLR 252.
[21]See Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22].
In Commissioner of State Revenue v EHL Burgess Properties Pty Ltd,[22] there is a helpful discussion by this Court of the circumstances in which it might be possible to read a statutory provision as though it contained additional words.[23] The Court endorsed the proposition that ‘it is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.’[24]
[22](2015) LGERA 314.
[23]Ibid 331–334[64]–[69] (Tate, Kyrou JJA and Robson AJA).
[24]Ibid [69] citing Commissioner of State Revenue (Vic) v Australian Football League (2006) 14 VR 35, 39 [17].
At the same time, it is clear that, where a literal construction would result in legislation ‘missing the target at which it is aimed’, and the words are reasonably open to another construction that will achieve that aim, the Court may construe the words in that fashion. That can be so, even if it involves the addition of words to those which have been used.[25]
[25]Byrne v Marles (2008) 19 VR 612, 628 [54].
Had the legislature used language that, read fairly, directed courts to impose heavier sentences for child homicide than had been the case for the manslaughter of young children, the Director’s submissions regarding the sentence under appeal would have greater force. It would be contrary to authority, and wrong in principle, to interpret s 5A as containing such a direction, based solely upon the statements made by the Attorney-General in the Second Reading Speech.
This said, the elements of the new offence make clear that the age of the victim is a central feature of the criminality in question.
Her Honour’s sentencing remarks were carefully expressed, and set out clearly why she regarded a term of 9 years and 6 months’ imprisonment as appropriate in this case. Nevertheless, had it not been for one unusual feature, we might well have concluded that this sentence was not merely lenient, but manifestly inadequate.
That one feature was the respondent’s confession to the police, months after the death of the child. Her Honour found that without that confession, voluntarily proffered, the respondent may never have been successfully prosecuted. That makes this case wholly exceptional. It renders the Crown’s task, on this appeal, just that much more difficult.
A plea of guilty is always a mitigating factor.[26] An early plea normally carries even greater weight in that regard. In a case such as this, such a plea, which avoided the need for a difficult and highly emotional trial, has particular utilitarian value.
[26]That is not to say that, after a plea of guilty, the maximum penalty cannot be imposed. Such a case would, however, be quite exceptional.
When a plea of guilty is accompanied by genuine remorse, as in this case, it is entitled to still greater weight as a mitigating factor. For one thing, the existence of remorse suggests that specific deterrence may be of less significance than it might otherwise be. In addition, the offender’s prospects of rehabilitation are likely to be enhanced.
When a confession leads to a voluntary disclosure of guilt, where that guilt might otherwise have remained undetected, the authorities make it clear that an even greater discount, well above that normally accorded to a plea of guilty, must be afforded.
The New South Wales Court of Criminal Appeal has considered this matter in some depth. In R v Ellis,[27] Street CJ stated:
This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well-recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.[28]
[27](1986) 6 NSWLR 603.
[28]Ibid 604.
In R v Dodd, the New South Wales Court of Criminal Appeal cited that passage with approval.[29] There, it was said that the respondent to a Crown appeal was entitled to ‘added leniency’, beyond that normally accorded to a plea of guilty, even when coupled with remorse, because he had voluntarily disclosed his guilt ‘which would otherwise have remained undetected’.
[29](1991) 57 A Crim R 349, 351–2.
The position in this State is equally clear. In R v Doran,[30] the Court of Appeal allowed an appeal against sentence, holding that the sentencing judge had given insufficient weight, inter alia, to the fact that the applicant had ‘quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes.’[31] Buchanan JA, (with whom Eames and Nettle JJA agreed) observed that it was important that the appellant receive ‘a demonstrable discount in his sentence in order to encourage others to make like admissions’.[32]
[30][2005] VSCA 271.
[31]Ibid [14].
[32]Ibid.
In one sense, the additional discount that is afforded by reason of there having been a confession of the kind made in the present case is somewhat analogous to the discount available to an offender who has agreed to assist the authorities regarding the investigation of criminal conduct by others. Such discounts can be very substantial.
As we have indicated, but for this singular feature of the present case, we may well have concluded that the sentence imposed below was not merely lenient, but manifestly inadequate. What the respondent did to this young child was inexcusable. It warranted severe punishment. His conduct must be denounced in the strongest possible terms.
At the same time, Senior Counsel for the Director accepted that there were a number of mitigating factors in this case, upon which the respondent was entitled to rely. These included:
·The utilitarian benefit of the respondent’s guilty plea.
·His genuine remorse, as found by the sentencing judge.
·His relative youth at the time of the offending, and at the time of sentencing.
·His previous good character, and lack of prior convictions.
·His reasonable prospects of rehabilitation.
·The fact that prison was likely to be particularly onerous for him, given that he had never been in custody before, and was now in an adult prison.
·The fact that the nature of the crime meant that he was particularly vulnerable in prison, noting that he had already been targeted by other prisoners. As such, he was likely to serve a reasonable proportion of his sentence in isolation, making his time in custody more burdensome.
To these mitigating factors, must be added the most important single such factor of all. That was the need to give what Buchanan JA described as a ‘demonstrable discount’ in recognition of the respondent’s confession, without which, as the sentencing judge found, it might not have been possible to prosecute him at all.
Having regard to these mitigating factors, in combination, we consider that the sentence of nine years and six months’ imprisonment, with a non-parole period of six years and six months, though lenient, cannot be said to be ‘wholly outside’ the range of sentences reasonably available to the sentencing judge.
As we have said, the respondent submitted that, if we were to conclude that the sentence below was manifestly inadequate, we should nonetheless dismiss the appeal, in the exercise of the Court’s residual discretion. Having regard to our conclusion that the sentence was not manifestly inadequate, nothing further need be said about that matter.
The Director’s appeal must be dismissed.
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