Hall v The Queen

[2020] SASCFC 84

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

HALL v THE QUEEN

[2020] SASCFC 84

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Livesey and The Honourable Justice Bleby)

8 September 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence.

Following a trial in the District Court the appellant was found guilty of attempted aggravated causing serious harm with intent to cause serious harm contrary to ss 23(1) and 270A of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).

Before the sentencing Judge the parties accepted that the maximum penalty applicable to the attempted offence of causing harm with intent is, by virtue of s 270A(3)(c), two-thirds of the maximum penalty prescribed by s 23(1)(b) of the Act, being two-thirds of 25 years. Accordingly, the sentencing Judge sentenced the appellant on the basis that the maximum penalty was 16 years and eight months. A sentence of seven years’ imprisonment was imposed with a non-parole period of four years and six months.

The appellant appeals the sentence on the ground that it is manifestly excessive. First, she submitted that the sentencing Judge erred in sentencing the appellant on the basis that the maximum penalty was 16 years and eight months rather than 12 years. Secondly, the appellant contended that the sentence imposed exceeded other sentences imposed for the completed offence of aggravated causing serious harm with intent and effectively included preventative detention contrary to principle.

Held, per the Court, dismissing the appeal:

1. The language, structure and operation of s 270A(3) is clear and unambiguous and not “capricious and irrational”.

2. However, in the nearly 40 years since s 270A was enacted, numerous amendments to the Criminal Law Consolidation Act 1935 (SA) have introduced maximum penalties where two-thirds of the maximum penalty exceeds 12 years. Whereas there can be no doubt that the provision was not affected by error or oversight when introduced, it is uncertain whether its present operation represents Parliament’s intention. The solution is a matter for the Parliament and not a matter of statutory construction by the Court.

3. Observations made about penalty provisions for attempt offences in other Australian jurisdictions.

4. The sentencing Judge did not err in his approach to sentencing the appellant. It cannot be said that the sentence imposed was manifestly excessive or that it effectively included preventative detention.

Acts Interpretation Act 1931 (Tas) s 34; Civil Liability Act 2002 (NSW) s 12(2); Compensation to Relatives Act 1897 (NSW); Controlled Substances Act 1984 (SA) s 23, s 32(1)(a), s 32(5); Crimes Act 1900 (NSW) s 344A(1); Crimes Act 1958 (Vic) s 321P; Criminal Code Act 1899 (Qld) s 536, s 228B(1), s 228A(1), s 536(3); Criminal Code Act Compilation Act 1913 (WA) s 552; Criminal Law Consolidation Act 1935 (SA) s 270A(3)(c), s 269C, s 269D, s 269H, s 269I, s 269W(1), s 269W(2), s 23(1)(b), s 270A(3)(a), s 270A(3)(b), s 270A(3)(c), ; Mental Health Act 2009 (SA) s 29(1)(b), referred to.
R v Di Maria (1996) 67 SASR 466, distinguished.
Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; Carr v Western Australia (2007) 232 CLR 138; Commissioner of Taxation (Cth) v Ryan (2000) 201 CLR 109; Conway v The Queen (2002) 209 CLR 203; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; Dinsdale v The Queen (2000) 202 CLR 321; Director of Public Prosecutions (Vic) v Leys (2012) 296 ALR 96; Esso Australia Pty Ltd v Australian Workers’ Union (2018) 263 CLR 551; Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, 592; Markarian v The Queen (2005) 228 CLR 357; Mills v Meeking (1990) 169 CLR 214; Momcilovic v The Queen (2011) 245 CLR 1; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Morse (1979) 23 SASR 98; Saraswati v The Queen (1991) 172 CLR 1; Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; Thompson v His Honour Judge Byrne (1999) 196 CLR 141; Veen v The Queen (No 2) (1988) 164 CLR 465; X v Australian Prudential Regulation Authority (2007) 226 CLR 630, considered.

HALL v THE QUEEN
[2020] SASCFC 84

Court of Criminal Appeal:   Kelly, Livesey and Bleby JJ

THE COURT:

Introduction

1. This is an appeal against sentence.

2. The appeal raises the question whether the proper construction of the maximum penalty in s 270A(3)(c) of the Criminal Law Consolidation Act 1935 (SA) (the Act) is affected by amendments made to other parts of that Act over a period of nearly 40 years.

3. The appellant, Ms Carol Ann Hall, was found guilty following a trial by a jury of attempted aggravated causing serious harm with intent to cause serious harm, contrary to ss 23(1) and 270A of the Act. The victim was the appellant’s former spouse, Stephen Hall.

4. On 23 March 2020, the appellant was sentenced to seven years’ imprisonment with a non-parole period of four years and six months.  After seeking submissions on the issue, the sentencing Judge identified the maximum penalty as being 16 years and eight months which accorded with the submissions made to him.  The appellant now appeals against the sentence on the ground that the sentence imposed was manifestly excessive.

5. For the reasons that follow, we dismiss the appeal.

   Background

6. The appellant is 45 years of age.  The offending occurred in the afternoon of Christmas Eve, 2017.  Mr Hall was sitting in his car outside the appellant’s home, waiting to pick up their daughter.  The appellant and Mr Hall had been sharing the custody of their daughter since a Family Court order made in 2011.  The appellant calmly approached Mr Hall and, upon reaching the open driver’s side window, she lunged at him a number of times with a kitchen knife.  The knife had been concealed.  The knife was directed towards Mr Hall’s chest.  To avoid being stabbed, Mr Hall tried to take hold of the knife and sustained minor cuts to his right index finger and a deeper cut to the webbing next to his left thumb.  The knife fell into the car.  Mr Hall drove quickly away and called the police. 

7. The appellant was soon arrested, having driven down her street with her daughter, intending to do some Christmas shopping.  As the sentencing Judge remarked, that the appellant took her daughter Christmas shopping immediately after the attack on Mr Hall showed that she regarded the attack as being “of no great moment”.

8. The sentencing Judge found that the appellant’s behaviour had become increasingly “unhinged or irrational” in the months before the offending. His Honour noted her pronounced enmity towards her former husband. Earlier in December 2017 the appellant attended a meeting at her daughter’s school and said words to the effect that if she were to kill her former husband life would be much easier. There was accordingly a degree of premeditation. When interviewed after her arrest, the appellant volunteered to Detective Molony that she had intended to stab Mr Hall in “his throat ... I’d had a gutful”, and rupture his aorta, hoping to get full-time custody of their daughter.

9. Following the guilty verdict, the sentencing Judge ordered that the appellant be assessed by two psychiatrists, Dr Smith and Dr Ferris. 

10. Dr Smith’s opinion was that the appellant held paranoid and persecutory beliefs about Mr Hall, which appeared to drive significant anger, irritability and aggression.  Dr Smith was concerned that the appellant might again attack Mr Hall if she were to be released.  There was evidence from a clinical nurse at the Adelaide Women’s Prison that she was told by the appellant: “I’m pleading innocent and when I get out I may as well kill him, kill the cunt when I get out of here, coz that’s what I am accused of.  Now will you just fuck off and leave me alone?”.  The appellant rejected any suggestion that she be admitted to James Nash House for formal psychiatric assessment and treatment.  The examination was terminated by Dr Smith because of concerns about the appellant’s increasing aggression which worsened as the examination progressed.  It appears Dr Smith was concerned for her own safety.

11. Dr Ferris conducted the second assessment, and agreed with Dr Smith’s opinion that the appellant held, and would continue to hold, paranoid and persecutory delusions about Mr Hall.  As with Dr Smith, the appellant refused any offer of treatment or trial of medication. Dr Ferris regarded detention under the Mental Health Act 2009 (SA) as problematic in circumstances where, whilst incarcerated, the appellant posed no risk to herself or others.[1]  She regarded the appellant as showing poor judgment and limited insight, failing to recognise the seriousness of her offending and mental illness.  Dr Ferris suspected a delusional disorder and believed Mr Hall to be at risk.

    [1] Presumably because provisions such as s 29(1)(b) of the Mental Health Act 2009 (SA) permit the South Australian Civil and Administrative Tribunal to make an “inpatient treatment order” only where “because of … mental illness, the person requires treatment for the person's own protection from harm (whether physical or mental, and including harm involved in the continuation or deterioration of the person’s condition) or for the protection of others from harm”.

12. It should be noted that there was no suggestion that the appellant was not mentally competent at the time of her offending, and no contention to that effect was advanced at trial.[2]   Further, it was not suggested that the appellant was unfit to plead or stand trial.[3]  Counsel has a heavy responsibility, and an associated independent discretion, when taking instructions and representing clients who may be affected by mental impairment.[4]  There is no suggestion that these responsibilities were not fully and appropriately observed in this case.

    [2]    See the Criminal Law Consolidation Act1935 (SA), ss 269C and 269D, regarding mental incompetence to commit offences and the presumption of mental competence.

    [3]    See, for example, the Criminal Law Consolidation Act1935 (SA), ss 269H and 269I, regarding mental unfitness to stand trial and the presumption of mental fitness.

    [4] For example when investigating the need for a supervision order under Part 8A of the Criminal Law Consolidation Act1935 (SA), s 269W(1), or criminal proceedings more generally, s 269W(2): “[i]f the counsel for the defendant in criminal proceedings (apart from proceedings under this Part) has reason to believe that the defendant is unable, because of mental impairment, to give rational instructions on questions relevant to the proceedings (including whether to be tried by judge alone), the counsel may act, in the exercise of an independent discretion, in what the counsel genuinely believes to be the defendant’s best interests”. The term “mental impairment” is defined expansively in s 269A to include a mental illness, an intellectual disability or a disability or impairment of the mind resulting from senility.

    The two contentions on appeal

13. The appellant complains that the sentence imposed was manifestly excessive for two reasons.  First, because the Judge sentenced on the basis that the maximum penalty was 16 years and eight months, when he should have sentenced on the basis that the maximum penalty was 12 years. Secondly, because the sentence exceeded other sentences imposed for completed offences of aggravated causing serious harm with intent. 

    A question of judicial construction or “legislation”?

14. The appellant’s first contention raises a question about the proper construction of s 270A, which sets out the maximum penalties applicable to the attempt to commit various offences elsewhere referred to in the Act.

15. Section 270A provides:

    270A—Attempts

    …

    (3)     The penalty for an attempt to which this section applies shall be as follows:

    (a)     in the case of attempted murder or attempted treason, the penalty shall be life imprisonment or imprisonment for some lesser term;

    (b)     where the penalty or maximum penalty for the principal offence (not being treason or murder) is life imprisonment, the penalty for the attempt shall be imprisonment for a term not exceeding twelve years;

    (c)     in any other case, the penalty for the attempt shall be a penalty not exceeding a maximum of two-thirds of the maximum penalty prescribed for the principal offence.

16. In the court below, both parties accepted that the maximum penalty applicable to the attempted offence of causing serious harm with intent is, by virtue of s 270A(3)(c), two-thirds of the maximum penalty prescribed by s 23(1)(b) of the Act, being two-thirds of 25 years.

17. The sentencing Judge accepted that position and proceeded to sentence on the basis that the maximum penalty was therefore 16 years and eight months.

18. The appellant now submits to this Court on appeal that, because the prescribed maximum penalty for the completed offence of causing serious harm with intent is 25 years, the two-thirds calculation prescribed by s 270A(3)(c) leads to a “capricious and irrational” operation:[5] namely, that the maximum penalty for attempted aggravated causing serious harm with intent to cause serious harm (16 years and eight months), is greater than the maximum penalty of 12 years which applies to cases of attempt (not being treason or murder) where the maximum penalty prescribed for the completed offence is life imprisonment.[6] 

    [5]    Drawing on the conclusory phrase used in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, 321 (Mason and Wilson JJ).

    [6]    Criminal Law Consolidation Act 1935 (SA), s 270A(3)(b).

19. The appellant submits that s 270A of the Act categorises the penalties for attempt offences in a descending order of seriousness:

    1The first category deals with attempted murder or attempted treason, for which the maximum prescribed penalty is life imprisonment or imprisonment for some lesser term: s 270A(3)(a).

    2The next category deals with offences of attempt (not being treason or murder) for which the maximum penalty for the completed offence is life imprisonment and, in those cases, the maximum prescribed penalty is 12 years: s 270A(3)(b).

    3The final category is for all other offences of attempt where the maximum prescribed penalty is set at two-thirds of the maximum penalty for the completed offence: s 270A(3)(c).

20. The appellant submits that because Parliament intended to categorise penalties in a descending order of seriousness, s 270A(3)(c) must be construed so that the two-thirds maximum penalty is “capped” at 12 years, otherwise the operation of s 270A(3)(c) is capricious and irrational. Therefore, the appellant submitted, s 270A(3)(c) should be construed to read as follows:

    (c)in any other case, the penalty for the attempt shall be a penalty not exceeding 12 years or, two-thirds of the maximum penalty prescribed for the principal offence, whichever is the lesser.

21. In support of that submission, counsel for the appellant relied on what fell from Doyle CJ in R v Di Maria (Di Maria):[7]

    The function of the court is to give effect to the words which Parliament has used, applying rules of interpretation which the courts themselves have developed: Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 322, per Brennan J. As lawyers know, that statement, while axiomatic, is the beginning point of the rules of interpretation, not the end.

    In the past courts tended to take a literal approach to interpretation, declining to look beyond the precise words used, and stressing, quite properly, that it is not for a court to convert what Parliament has said to mean what the court considers it should have said, or would have said if it had foreseen the situation before the court. To do that would be to usurp the role of Parliament.

    However, in more recent times the so-called purposive approach to interpretation has predominated. Under this approach, the purpose of the legislation, as understood by the court, may influence the process of construction. But it could do so only if the literal approach resulted in an ambiguity or inconsistency. These approaches, and the use of the purposive approach, are discussed in D C Pearce & R S Geddes, Statutory Interpretation in Australia (4th ed, 1996), Ch 2. The use of the purposive approach has, in my opinion, been assisted by rather than been dependent upon statutory provisions requiring courts to adopt a purposive approach. In my opinion, the purposive approach should be adopted by this Court and has, generally, been adopted.

    That view is reinforced by s 22 of the Acts Interpretation Act 1915 (SA) which provides:

    “(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.”

    [7]    R v Di Maria (1996) 67 SASR 466, 472 (Doyle CJ).

22. In Di Maria the Court addressed the provisions of the Controlled Substances Act 1984 (SA), in particular s 32 of that Act and the legislative regime relating to drugs of dependence and prohibited substances. The three appellants had been convicted of manufacturing a drug of dependence, amphetamine, and a prohibited substance, 3,4-Methylenedioxyamphetamine (MDA) contrary to s 32(1)(a).

23. The offence created under s 32(5) imposed a two-tiered level of penalty based on the quantity of the drug or the substance involved. The amount at which the greater and lesser penalties were divided was defined as the “prescribed amount”. In the original enactment of s 32, the Controlled Substances Act 1984 (SA) imposed a higher penalty if the “prescribed amount” was equalled or exceeded, and the lower maximum penalty applied “in any other case”. In subsequent amendments, the words “in any other case” were left out. As a consequence, it was not clear what penalty should be imposed under the Act as no amount was prescribed for amphetamines or MDA.

24. In addressing what he regarded as an unintended drafting error, Doyle CJ relied on the approach in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth).[8] There the High Court intervened to correct a drafting oversight in the Income Tax Assessment Act 1936 (Cth), emphasising the need to be able to discern the legislative intention, as appears from the observations of Mason and Wilson JJ: [9]

    For the reason already given in the discussion of the literal rule, departure from the ordinary grammatical sense cannot be restricted to cases of absurdity and inconsistency.

    In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

    …

    Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.

    [8]    Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297.

    [9]    Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, 320-321 (Mason and Wilson JJ).

1. In the resolution of the issue, Doyle CJ, “borrowing” from the well-known three-stage approach of Lord Diplock in Wentworth Securities Ltd v Jones (Wentworth Securities), said:[10] 

   … first of all I am satisfied that Parliament intended to punish manufacture of the relevant substances in all cases, and to enable the Executive to do no more than by regulation identify substances which would attract a higher penalty if more than a specified quantity was involved. I am satisfied that Parliament did not intend to penalise manufacture only if the Executive prescribed an amount in respect of a given drug of dependence or prohibited substance. Secondly, I am satisfied that when Parliament amended the provision it overlooked the significance of removing the words “in any case”. Thirdly, it is possible to specify the words that would have been inserted if the omission had been identified. The words are to be found elsewhere in s 32, they were previously used in s 32(5)B itself. They are, “in any other case”.

   (Emphasis in original.)

   [10] R v Di Maria (1996) 67 SASR 466, 472 citing Wentworth Securities Ltd v Jones [1980] AC 74, 105-106 (Lord Diplock).

2. Wentworth Securities has been referred to many times by the High Court.[11]In Taylor v Owners – Strata Plan No 11564,[12] the Court considered s 12(2) of the Civil Liability Act 2002 (NSW), which provided:

   (1)     This section applies to an award of damages:

   (a)     for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or

   (b)     for future economic loss due to the deprivation or impairment of earning capacity, or

   (c)     for the loss of expectation of financial support.

   (2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant’s gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award.

   [11] Mills v Meeking (1990) 169 CLR 214; Saraswati v The Queen (1991) 172 CLR 1; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; Thompson v His Honour Judge Byrne (1999) 196 CLR 141; Commissioner of Taxation (Cth) v Ryan (2000) 201 CLR 109, [82]; Conway v The Queen (2002) 209 CLR 203, [74]; X v Australian Prudential Regulation Authority (2007) 226 CLR 630, [116]; Carr v Western Australia (2007) 232 CLR 138, [10]; Momcilovic v The Queen (2011) 245 CLR 1; Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 and Esso Australia Pty Ltd v Australian Workers’ Union (2018) 263 CLR 551.

   [12] Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531.

3. The question was whether this provision limited the quantum of damages available to a widow claimant under the Compensation to Relatives Act 1897 (NSW). The primary judge and the Court of Appeal, relying on Wentworth Securities, construed the phrase “claimant’s … earnings” as if it referred to the earnings of the deceased, therefore limiting the claim available to the widow for the loss of her deceased husband’s financial support.  The High Court allowed the appeal by a majority.  As French CJ, Crennan and Bell JJ explained, satisfaction of the three criteria in Wentworth Securities would not, in all cases, permit a court to read words into a statute:[13]

   Lord Diplock’s three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution[14]) accord with the statements of principle in Cooper Brookes[15] and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme”[16] because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour’s further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances”[17].

   Lord Diplock’s speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation[18]. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock’s conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be “too far-reaching”[19]. In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution[20].

   The primary judge’s construction and that proposed by the active respondents on the appeal each require that the phrase “claimant’s gross weekly earnings”, in the case of an award of damages under s 12(1)(c), be read as referring to the gross weekly earnings of the deceased. On no view can the deceased be “the claimant”. To read s 12, in the case of an award under s 12(1)(c), as applying the s 12(2) limitation to the deceased’s gross weekly earnings cannot be reconciled with the language that the Parliament has enacted. The phrase “the claimant’s gross weekly earnings” is incapable of identifying the gross weekly earnings of the deceased.

   [13]   Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, [39]-[41] (French CJ, Crennan and Bell JJ, Gageler and Keane JJ dissenting).

   [14]   Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, 592; [2000] 2 All ER 109, 115 (Lord Nicholls of Birkenhead). The reformulation was of the third condition: the court must be abundantly sure of the substance, although not necessarily the precise words, the legislature would have enacted.

   [15] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297.

   [16] Director of Public Prosecutions (Vic) v Leys (2012) 296 ALR 96, [96].

   [17]   Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 113. See also IW v City of Perth (1997) 191 CLR 1, 12 (Brennan CJ and McHugh J).

   [18]   Wentworth Securities Ltd v Jones [1980] AC 74, 105-106.

   [19]   Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, 592.; [2000] 2 All ER 109, 115.

   [20]   Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, [102] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) and Zheng v Cai (2009) 239 CLR 446, [28] (French CJ, Gummow, Crennan, Kiefel and Bell JJ).

4. Though in dissent as to the result, Gageler and Keane JJ were also at pains to emphasise the need to discern the legislative intention, as well as the proper limits to the process of judicial construction, “it is not repair”:[21]

   Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always”[22]. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation[23]. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

   Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.

   [21] Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, [65]-[66] (Gageler and Keane JJ).

   [22] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [78].

   [23] eg, Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 310-311, 319-321; MacAlister v The Queen (1990) 169 CLR 324, 330.

5. The demarcation between judicial construction and judicial legislation had of course been recognised by Lord Diplock in Wentworth Securities, who explained that where the third condition was not satisfied:[24]

   … any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.

   [24] Wentworth Securities Ltd v Jones [1980] AC 74, 105-106 (Lord Diplock).

6. In Momcilovic v The Queen Crennan and Kiefel JJ again explained the need to discern the legislative purpose:[25]

   In Wentworth Securities Ltd v Jones Lord Diplock stated certain conditions as necessary to be fulfilled before a court, construing legislation, could read words into the text. However, they were directed to correcting a defect or omission which had been overlooked by Parliament. Moreover, as Kirby J pointed out in James Hardie & Coy Pty Ltd v Seltsam Pty Ltd, his Lordship made it plain that that possibility only arises “if the application of the literal or grammatical meaning would lead to a result which would defeat the clear purpose of a statute”.

   (Footnotes omitted.)

   [25] Momcilovic v The Queen (2011) 245 CLR 1, [580] (Crennan and Kiefel JJ).

7. A similar point was made in Esso Australia Pty Ltd v Australian Workers’ Union (Esso), together with the need for the Court to guard against entry into “the legislative realm”:[26]

   It is not the Court’s function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation according to established precepts of statutory construction and into the legislative realm of amending the Act by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances before the Court.

   (Footnote omitted.)

   [26]  Esso Australia Pty Ltd v Australian Workers’ Union (2018) 263 CLR 551, [52] (Kiefel CJ, Keane, Nettle and Edelman JJ).

8. The difficulty with the appellant’s case is that, unlike Di Maria, the language, structure and operation of s 270A(3) of the Act is clear and unambiguous, and very far from “capricious or irrational”.

9. The appellant’s contention has nothing to do with the form in which the provision was enacted, nor its intended operation at that time. Section 270A of the Act was originally enacted in 1981.[27] When introducing the amendment bill, the Attorney‑General, referring to s 270A, said:[28]

   When the penalties which may be imposed on those who attempt to commit crimes were examined it was found that there was no rationality in the law at all. For example, the penalty for the common law misdemeanour of attempting to commit a felony is two years. For some attempts, specific penalties are laid down. For example, attempted murder where the penalty is imprisonment for life and attempted rape where the penalty is seven years. No specific penalty is laid down, for example, for attempted armed robbery, so the maximum penalty is only two years, which is clearly inadequate. The penalties for attempts are rationalised by providing that the maximum penalty for attempting to commit murder or treason is life.

   For other offences, where life is the maximum penalty for the principal offence, the maximum penalty for an attempt is 12 years, and in all other cases the maximum penalty for an attempt will be two thirds of the maximum penalty for the principal offence.

   [27] See Criminal Law Consolidation Act Amendment Act 1981 (SA), s 26.

   [28] South Australia, Parliamentary Debates, Legislative Council, 29 October 1981, 1710 (the Hon K T Griffin).

10. What was enacted accurately reflected the second reading speech. 

11. Rather, the trigger for the appellant’s contention is the present operation of s 270A(3)(c) by reason of changes made to other parts of the Act. In the four decades since s 270A was introduced, many changes have been made to increase substantially a range of maximum penalties prescribed for various offences under the Act. It is a matter for debate whether, as a result of the introduction of maximum penalties of 19 years, 20 years and 25 years for completed offences,[29] the two-thirds formula prescribed by s 270A(3)(c) no longer operates as Parliament intends.

    [29]  See Appendix A for the maximum prescribed penalties of 19 years, 20 years and 25 years for various offences under the Criminal Law Consolidation Act 1935 (SA).

12. To put the same point differently, whereas there can be no doubt that the provision was not affected by error or oversight when introduced, it is uncertain whether its present operation still represents Parliament’s intention after many years of amendments to other parts of the Act.

13. Unlike Di Maria, it is not possible to conclude confidently, either from the provision itself or from the legislative history of amendments to increase various penalties, that what has occurred does not accord with the legislative intention.  As was said in Esso:[30]

    It is not the Court’s function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have.

    [30] Esso Australia Pty Ltd v Australian Workers’ Union (2018) 263 CLR 551, [52] (Kiefel CJ, Keane, Nettle and Edelman JJ).

14. It is not for this Court to construe the provision by reference to what the Court regards as an appropriate sentencing policy:[31]

    This approach, with respect, emphasised a judicially constructed policy at the expense of the requisite consideration of the statutory text and its relatively clear purpose. In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose[32].

    [31] Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1, [28] (French CJ, Hayne, Kiefel and Bell JJ).

    [32] Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, 405 (Kitto J); Baker v Campbell (1983) 153 CLR 52, 104 (Brennan J); Miller v Miller (2011) 242 CLR 446, [29] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Momcilovic v The Queen (2011) 245 CLR 1, [441] (Heydon J); AB v Western Australia (2011) 244 CLR 390, [38].

15. To proceed in that way would not involve any resolution to the problem of construction by reference to a clearly discerned legislative intention and well-established precepts.  It would transgress the proper bounds of the judicial function and become an exercise in judicial legislation.

16. A consideration of legislation in pari materia with s 270A of the Act in other Australian jurisdictions shows that the issue in this case could not have arisen in those jurisdictions.

17. The interstate legislation takes three different forms.

18. The simplest of these is the Crimes Act 1900 (NSW) (the NSW Act) and the Acts Interpretation Act 1931 (Tas) (the Tasmanian Act). Section 344A(1) of the NSW Act and s 34 of the Tasmanian Act, in effect, provide that a defendant who is found guilty of an attempt is liable to the penalty, or liable to be punished in the manner, prescribed for the corresponding completed offence.

19. In contrast, s 321P of the Crimes Act 1958 (Vic) prescribes a different method. Under that Act, the maximum penalty for an attempt is calculated by reference to the maximum penalty prescribed for the corresponding completed offence by means of the application of a table in s 321P. Essentially, the defendant will receive a lesser, but comparable sentence, in accordance with the levels of punishment for the completed offence. For example, if the defendant is convicted of attempting to commit an offence that would attract level 1 imprisonment if completed (life imprisonment) he or she will receive the sentence corresponding to the next lower level of imprisonment (level 2 imprisonment, being 20 years maximum).

20. Western Australia and Queensland have also introduced legislative provisions in relation to penalties for attempts.

21. Section 552 of the Criminal Code Act Compilation Act 1913 (WA) (the WA Act) provides:

    
    552.   Attempt to commit indictable offence

    (1)    Any person who attempts to commit an indictable offence (the principle offence) is guilty of a crime.

    (2)    A person guilty of a crime under subsection (1) is liable —

    (a)if the principle offence is punishable on indictment with imprisonment for life — to imprisonment for 14 years;

    (b)in any other case — to half of the penalty with which the principle offence is punishable on indictment.

    Summary conviction penalty: for an offence where the principal offence may be dealt with summarily, the lesser of —

    (a)the penalty with which the principal offence is punishable on summary conviction; or

    (b)the penalty that is half of the penalty with which the principal offence is punishable on indictment.

22. The maximum penalty under the WA Act for offences other than those to which the maximum penalty of life imprisonment applies is 20 years’ imprisonment. This penalty applies to offences such as unlawful assault causing death (s 281) and sexual offences involving persons under the age of 13 years (ss 320(2)-(3)). Accordingly, the attempt to commit an offence that would attract a penalty less than life imprisonment, cannot attract a penalty higher than the attempt to commit an offence which has a penalty of life imprisonment.

23. The same is true of s 536 of the Criminal Code Act 1899 (Qld) (Queensland Act), which is the closest analogue to the South Australian provision. Section 536 provides:

    536 Punishment of attempts to commit indictable offences

    (1)A person who attempts to commit an indictable offence punishable by mandatory life imprisonment is liable, if no other punishment is provided, to life imprisonment.

    (2)A person who attempts to commit an indictable offence punishable by life imprisonment but not mandatory life imprisonment is liable, if no other punishment is provided, to 14 years imprisonment.

    (3)A person who attempts to commit any other indictable offence is liable, if no other punishment is provided, to a punishment equal to one-half of the greatest punishment to which an offender convicted of the offence is liable.

24. Under the Queensland Act, the maximum penalty for an offence other than an offence that is punishable by a maximum or mandatory penalty of life imprisonment, is 25 years’ imprisonment. The offences that carry a maximum penalty under the Queensland Act of 25 years’ imprisonment include making child exploitation material (s 228B(1)) and involving a child in the making of child exploitation material (s 228A(1)).[33] As a result, the maximum sentence available under s 536(3) is 12 years and six months’ imprisonment.

    [33] The maximum penalties for offences contrary to ss 228A or 228B is 25 years’ imprisonment if the offender uses a hidden network or an anonymising service in committing the offence. Otherwise, the maximum penalty is 20 years’ imprisonment.

1. This brief perusal of interstate legislation reveals a common thread. In all cases, the attempt offences which do not attract a sentence of life imprisonment, whether mandatory or otherwise, attract lower maximum penalties than the attempt offences which do attract a sentence of life imprisonment.

2. The present problem is, therefore, unique to South Australia.

3. In the nearly 40 years since s 270A was enacted, numerous amendments to the Act, particularly the introduction of “aggravated” offences, have created various, serious offences prescribing maximum penalties where two-thirds of the maximum penalty well exceed 12 years. The offence in s 23 is one such example.

4. The anomalous result contended for by the appellant in this case is not the result of any error or oversight in s 270A as drafted. Rather, it is due to the fact that Parliament has not reviewed the penalties in s 270A following amendments creating substantive offences with penalties higher than 18 years’ imprisonment in other parts of the Act (and for which the attempt penalties based on a two-thirds formula necessarily exceed 12 years’ imprisonment).

5. Whilst the present operation of s 270A(3) may well be a matter of legislative oversight, the solution is a matter for the Parliament rather than statutory construction by the Court. That is because the present operation of s 270A(3) might reflect what Parliament intended. Equally, it may be that the cap of 12 years prescribed by s 270A(3)(b) no longer reflects contemporary sentencing standards for crimes of attempt where the principal offence attracts a penalty of life imprisonment.

6. And, as may be obvious from the foregoing, the inability to discern clearly the requisite legislative intention, even if confined to the suggested erroneous operation of s 270A, means that this Court cannot be sure of the substance, and certainly not the precise words, of the provision the legislature would have enacted had this issue been brought to its attention.[34] 

   [34] In Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, 592; [2000] 2 All ER 109, 115 Lord Nicholls of Birkenhead reformulated the third condition by reference to the substance rather than the precise words of the provision that the legislature would have enacted.

7. These are, therefore, matters for the Parliament to address and review, as it sees fit.  They go well beyond any question of statutory construction for this Court to resolve. 

8. For these reasons, the appellant’s first argument cannot succeed.

9. That leaves the question whether the sentence imposed was, in any event, manifestly excessive.

   Manifest excess?

10. As is well recognised, whether a sentence is manifestly excessive is a conclusion reached following a review of a number of factors, including:[35]

    ·    the maximum sentence prescribed by law;

    ·    the standards of sentence customarily observed for offences of the kind in question;

    ·    the seriousness of the offence committed when compared with other offences of its kind; and

    ·    the personal circumstances of the offender.

    [35] R v Morse (1979) 23 SASR 98, 99 (King CJ); Dinsdale v The Queen (2000) 202 CLR 321 and Markarian v The Queen (2005) 228 CLR 357.

11. Apart from the question of the maximum penalty in this case, the appellant contends that the Judge imposed a sentence of imprisonment well in excess of those imposed in the District Court for completed offences and, effectively, imposed a sentence that included preventative detention in a manner contrary to principle.[36]  As a consequence, the sentence arrived at by the Judge is said to be manifestly excessive.

    [36]   Veen v The Queen (No 2) (1988) 164 CLR 465, 473 (Mason CJ, Brennan, Dawson and Toohey JJ): “[i]t is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible”.

12. Although the Court was referred to some instances of sentencing for the principal offence imposed in the District Court in recent years, it is not possible to extrapolate from those decisions that there is any particular sentencing standard or range for the principal offence of causing serious harm with intent.

13. Like other offences of violence, the crime of causing serious harm with intent to cause harm can be committed in an almost unlimited variety of ways, with or without features of aggravation.  Like the offence of manslaughter, it can range from the most serious just falling short of murder, to cases which may justify a suspended sentence. 

14. In this matter, the Judge was faced with a very unusual set of circumstances and a difficult sentencing exercise.  On the one hand, the appellant had no previous criminal history.  On the other, two psychiatrists who had examined the appellant in September and November 2019 expressed the cautious opinion that the appellant is mentally unwell and resistant to any form of treatment.  The sentencing Judge was right to conclude that the appellant had limited insight.  The statements the appellant had made to the psychiatrists and others revealed that she was neither contrite nor deterred.  There was a very high risk that she would again offend in a similar way.  The sentencing Judge was required to take into account all of the relevant circumstances and impose a sentence that was proportionate to the nature and gravity of the offence and the circumstances of the offender. 

15. The sentencing Judge categorised the gravity of the offence as follows:

    Your conduct in attacking your former spouse was extremely dangerous and, to an extent, was premediated, as the evidence revealed.  It was only through your former husband’s alertness and reactive defensive actions that you were unable to fully carry out what you intended to do to him.

    The evidence also reveals that in the months leading up to your attack on your former husband, your behaviour was becoming unhinged or irrational.  You were increasingly voicing unfounded concerns that people, government agencies and your former husband were interfering in your life and that of your daughter.  Your enmity towards the world was especially reserved for your former husband, who you alleged, I might add, without any proper foundation or justification, had assaulted your daughter when she was a young child.  It was also your view, again totally unfounded, that he had manipulated the custody arrangements which was having a destabilising effect on your daughter’s wellbeing.

16. Respectfully, the sentencing Judge’s characterisation of the appellant’s offending was correct.  The Judge made clear the need to ensure that, in imposing the sentence, he did not sentence for what she may do in the future to her former husband.  The appellant’s complaint in this respect must be rejected. 

    Conclusion

17. The appellant has not pointed to any aspect of the sentencing remarks that reveals that there was a relevant matter which the sentencing Judge failed to take into account, or any irrelevant matter which he should not have taken into account. 

18. The sentencing Judge was plainly right to conclude that considerations of personal and general deterrence were very important when arriving at an appropriate sentence.  The same is true of considerations of community safety.  It cannot be said that a sentence to seven years’ imprisonment with a non-parole period of four years and six months was obviously wrong or excessive.

19. Faced with a very difficult sentencing exercise, the Judge’s approach to sentence was without flaw. 

20. We dismiss the appeal.

    Appendix A

    Penalties for offences under the Criminal Law Consolidation Act 1935 (SA)

    Offences that carry a maximum penalty of 19 years’ imprisonment

    1.Aggravated recklessly cause serious harm (s 23(3)(b))

    2.Aggravated bringing child into State for marriage (s 34A(1)(b))

    3.Aggravated removing child from State for marriage (s 34B(1)(b))

    4.Aggravated unlawful removal of child from jurisdiction (s 40(1)(b))

    5.Compel another to provide commercial sexual services (child under the age of 18 years) s 66(1)(b))

    Offences that carry a maximum penalty of 20 years’ imprisonment

    1.Causing serious harm with intent to cause serious harm (s 23(1)(a))

    2.Possession of object with intent to kill or cause harm (s 31(1))

    3.Kidnapping (s 39(1)(a))

    4.Assaulting another while participating in a criminal activity of a criminal organisation (s 83E(2))

    5.Destroy or damage property while participating in a criminal activity of a criminal organisation (s 83E(3))

    6.Use of an explosive device without lawful excuse (s 83N(1))

    7.Causing a bushfire (s 85B(1))

    8.Money laundering (s 138(1))

    9.Dealing in instruments of crime (s 138A(1))

    10.Aggravated serious criminal trespass (non-residential) (s 169(1)(b))

    11.Aggravated blackmail (s 172(1)(b))

    Offences that carry a maximum penalty of 25 years’ imprisonment

    1.Aggravated causing serious harm with intent to cause serious harm (s 23(1)(b))

    2.Shooting at police officers (s 29A(1))

    3.Aggravated kidnapping (s 39(1)(b))

    4.Assault a public officer while in the execution of the officer’s duty while participating in a criminal activity of a criminal organisation (s 83E(4))