R v Melville
[2003] WASCA 124
•13 JUNE 2003
R -v- MELVILLE [2003] WASCA 124
| (2003) 27 WAR 224 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 124 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:236/2002 | 14 MARCH 2003 | |
| Coram: | MURRAY J ANDERSON J MCKECHNIE J | 13/06/03 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Question reserved answered | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN VICTOR IAN MELVILLE |
Catchwords: | Courts and Judges Jurisdiction of District Court Criminal law and procedure Maximum sentence for rape life imprisonment Whether Sentencing Act has altered sentence to the same sentence as sexual penetration without consent Statutory interpretation Intention of Parliament |
Legislation: | Acts Amendment (Sexual Assaults) Act 1985 Acts Amendment (Sexual Offences) Act 1992 Criminal Code (WA), s 2, s 11, s 12, s 13, s 14, s 23, s 325, s 326, s 596 Criminal Procedure Rules 2000 District Court of Western Australia Act 1969 (WA), s 42, s 49 Interpretation Act 1984 (WA), s 37 Sentencing Act 1995 (WA), s 10 |
Case References: | BRK & Ors v The Queen [2001] WASCA 161 Miller v Raye, unreported, SCt of WA (Murray J); Library No 970688; 2 December 1997 Regina v Joseph Lines (1844) 1 Car&K 393; 174 ER 861 Richardson v Brennan [1966] WAR 159 Saif Ali v Sydney Mitchell & Co (a firm) [1980] AC 198 Steavenson v Oliver (1841) 8 M&W 234; 10 LJ Ex 338. Wagenaar v The Queen [2000] WASCA 325 Kailis v The Queen (1999) 21 WAR 100 Miller v The Queen (1995) 13 WAR 504 Palmer v Clarke (1989) 19 NSWLR 158 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- MELVILLE [2003] WASCA 124 CORAM : MURRAY J
- ANDERSON J
MCKECHNIE J
- Appellant
AND
VICTOR IAN MELVILLE
Respondent
Catchwords:
Courts and Judges - Jurisdiction of District Court - Criminal law and procedure - Maximum sentence for rape life imprisonment - Whether Sentencing Act has altered sentence to the same sentence as sexual penetration without consent - Statutory interpretation - Intention of Parliament
(Page 2)
Legislation:
Acts Amendment (Sexual Assaults) Act 1985
Acts Amendment (Sexual Offences) Act 1992
Criminal Code (WA), s 2, s 11, s 12, s 13, s 14, s 23, s 325, s 326, s 596
Criminal Procedure Rules 2000
District Court of Western Australia Act 1969 (WA), s 42, s 49
Interpretation Act 1984 (WA), s 37
Sentencing Act 1995 (WA), s 10
Result:
Question reserved answered
Category: A
Representation:
Counsel:
Appellant : Mr K P Bates & Ms A D Kurtze
Respondent : Mr N J Mullany
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Cannon Bowden & Co
Case(s) referred to in judgment(s):
BRK & Ors v The Queen [2001] WASCA 161
Miller v Raye, unreported, SCt of WA (Murray J); Library No 970688; 2 December 1997
Regina v Joseph Lines (1844) 1 Car&K 393; 174 ER 861
Richardson v Brennan [1966] WAR 159
Saif Ali v Sydney Mitchell & Co (a firm) [1980] AC 198
Steavenson v Oliver (1841) 8 M&W 234; 10 LJ Ex 338.
Wagenaar v The Queen [2000] WASCA 325
(Page 3)
Case(s) also cited:
Kailis v The Queen (1999) 21 WAR 100
Miller v The Queen (1995) 13 WAR 504
Palmer v Clarke (1989) 19 NSWLR 158
(Page 4)
1 MURRAY J: I have had the advantage of reading in draft, reasons for decision prepared by Anderson J and McKechnie J. With respect to the contrary view, I prefer the reasoning of Anderson J, from which it will appear that in my opinion the question referred under the District Court of Western Australia Act 1969 (WA) s 49 should be answered in the affirmative. The District Court does have jurisdiction to deal with the counts of rape upon the indictment against the accused, those charges being preferred because it is alleged that the offences were committed at the latest by 31 December 1985.
2 As has been seen from the legislative history discussed by the other members of the Court, by various amendments to the Criminal Code, made first with effect from 1 April 1986 and since then, the offence of rape has disappeared from the Code, s 325, to be replaced most recently by an offence defined in the same section, of sexual penetration without consent. Such an offence in aggravated form is now defined by s 326. That has the effect of increasing the maximum penalty from 14 years imprisonment to 20 years imprisonment. When the offence of rape, defined as such, existed it was punishable by life imprisonment, with or without a whipping, by s 326 of the Code. I note in passing that the punishment of whipping has now entirely disappeared from the statute book.
3 Although the offence of rape as defined by the Code has disappeared, the offence itself remains. An offence within the meaning of the Criminal Code and the law generally is constituted by acts or omissions, (Code, s2) and on occasions by events. Of course, a written law might also define an offence by reference to the presence of an intention to cause a particular result. The general provisions of the Criminal Code in Ch III with respect to the application of the criminal law and Ch IV with respect to criminal responsibility continue to be expressed in such terms: see particularly the Code, s 12 to s 14, s 23 and the other provisions in Ch V.
4 The offence of rape, with the aid of the definition of "carnal knowledge" in s 6 of the Code, was an offence defined by the act of penile penetration of the vagina of a female without consent (the concept of consent being defined in s 325 itself). The same act, in the same circumstances, now constitutes the act of sexual penetration without consent, albeit, as Anderson J has noted, that offence is now more widely defined to include acts of penetration which would not have constituted the offence of rape and perhaps also by reference to a more widely defined concept of consent.
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5 Although the offence of rape is now gone, acts committed in circumstances which would constitute rape at the time when the offence existed continue to be able to be prosecuted and to result in conviction and punishment. Section 37(1)(e) of the Interpretation Act 1984 (WA) preserves the existence of the offence following its repeal, subject to s 11 of the Criminal Code and s 10 of the Sentencing Act 1995 (WA).
6 Section 11 of the Code, as originally enacted, expressed two fundamental principles in respect of changes to the criminal law between the date when an offence was committed and the date when the offender was convicted of it and to be punished for it. It is unnecessary for present purposes to discuss the history, but the principles involved were, before the enactment of the Code, equally principles of the common law.
7 The first fundamental principle continues to be expressed in s 11 of the Criminal Code. It is that:
"A person cannot be punished for doing or omitting to do an act, unless the act or omission constituted an offence under the law in force when it occurred, nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence."
8 One notices the use of the term "an offence" rather than "the offence". It does not matter, in other words, that there is now no offence called rape, known to the law. That offence is preserved and may be prosecuted and the offender punished for it because the same act of sexual penetration committed under the same circumstances now constitutes an offence of sexual penetration without consent.
9 As McKechnie J has pointed out, the second fundamental principle in respect of changes to the criminal law, which was formerly the second paragraph of s 11 of the Code, now finds expression in s 10 of the Sentencing Act, albeit it somewhat differently expressed. The purpose of the repeal of the second paragraph of s 11 of the Code and its re-enactment as s 10 of the Sentencing Act was not to change the law, but as part of the scheme of gathering together in the Sentencing Act all the statutory provisions governing the sentencing process and the sentences which might be imposed following conviction.
10 Another convenient example of the same kind is the repeal of s 16 of the Criminal Code, providing the general rule that a person may not be twice punished for the same offence, and its re-enactment, again in a
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- rather more widely expressed form, as s 11 of the Sentencing Act. In that regard I digress to note the exceptional rule in homicide cases, which was formerly an exception to the general rule provided in s 16, preserved now by s 11(3) which provides, consistently with the view I have taken about the nature of an offence, that:
"… if an act or omission of an offender causes the death of another, the offender may be sentenced for the offence of which he or she is guilty by reason of causing the death despite the fact that he or she has already been sentenced for some other offence constituted by that act or omission."
"If the statutory penalty for an offence changes between the time when the offender committed it and the time when the offender is sentenced for it, the lesser statutory penalty applies for the purposes of sentencing the offender."
12 In my respectful opinion, the effect of the section is plain. I agree with Anderson J that the word "offence" is used in this context to mean an act or omission committed in circumstances which make it punishable as an offence. The section enacts what I have described as the second fundamental principle applicable in circumstances where the law changes between the date of the commission of an offence and the time when the offender is convicted and to be punished for it. If the penalty for the offence has been increased beyond that which applied at the time of its commission, the offender will not be liable to the greater penalty. If, on the other hand, the penalty has been reduced, he or she will only be liable to the newly prescribed lesser penalty.
13 In the case, therefore, of the offence formerly known as rape and now known as sexual penetration without consent, but always constituted by the same act committed in the same circumstances, in my opinion the effect of s 10 of the Sentencing Act is to make that offence punishable, not by life imprisonment with or without a whipping, as was the case when the offences were, in this case, allegedly committed, but by a period of 14 years imprisonment.
14 I note that Anderson J expresses the view that the maximum penalty will be that "determined by reference to the maximum sentence that may be imposed under the provisions of the Criminal Code as it now stands for the proven conduct". I respectfully agree and should add that I have come
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- to the conclusion that the maximum penalty is 14 years imprisonment because the offence of sexual penetration committed in circumstances of aggravation is a different offence, as defined, from that of sexual penetration without consent simpliciter: see the Code, s 596. It is the latter offence which, in its elements, equates with the offence formerly described as rape. However, having made those observations it is necessary to say that a statement about what is in law the maximum penalty for the offence now, forms no part of the answer to the question posed to this Court.
15 As the other members of the Court have made clear, as there has since the repeal of s 42(2a) of the District Court Act with effect from 10 October 1996 been no restriction upon the jurisdiction of the District Court in respect of sexual offences, the only restriction is that flowing from s 42(2) whereby the Court has no jurisdiction to try charges of offences subject to the maximum penalty of life imprisonment or strict security life imprisonment. It follows, in my opinion, that since 10 October 1996 the jurisdiction of the District Court has extended to the trial and punishment of the offence formerly known as rape. I would answer the question, "yes".
16 ANDERSON J: This is a reference pursuant to s 49 of the District Court of Western Australia Act 1969 on a point of law arising in the trial of one Melville in respect of a large number of sexual offences dating back to 1979. Of the 44 counts on the indictment, there are 16 charges of rape, all alleged to have been committed before 1 January 1986. The indictment was presented in the District Court on 2 October 2001, and the question is whether the Court has jurisdiction to try the counts of rape.
17 The offence of rape was created by s 325 of the Criminal Code. The offence and its punishment was defined in the following terms:
"325. Any person who has carnal knowledge of a woman or girl, not his wife, or of his wife whilst he is separated from her and they are not residing in the same residence, without her consent, or with her consent if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime which is called rape.
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- 326. Any person who commits the crime of rape is liable to imprisonment with hard labour for life, with or without whipping."
18 The District Court has jurisdiction and powers which are co-extensive with the jurisdiction and powers of the Supreme Court as regards indictable offences save that it does not and never has had jurisdiction to try a person accused of an offence for which the maximum penalty is life imprisonment: District Court of Western Australia Act s 42(1), s 42(2).
19 On 1 April 1986 the Acts Amendment (Sexual Assaults) Act 1985 was passed. By s 10 of that Act, the sections of the Code which created the offence of rape, attempted rape and indecent assault were repealed and replaced by provisions which created new sexual offences, two of which (s 324D and s 324E) encompassed the elements of rape but none of which was punishable by life imprisonment. Those two sections were:
“Sexual assault
324D Any person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years.
Aggravated sexual assault
324E Any person who sexually penetrates another person without the consent of that person and in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 20 years."
20 By introducing an expanded definition of sexual penetration (s 324F) the new offences were much broader than was the offence of rape.
21 Were it not for a contemporaneous amendment to the District Court of Western Australia Act this change to the criminal law would have given to the District Court jurisdiction to try all sexual offences including those created by the new s 324D and s 324E because none of the new offences were punishable by life imprisonment. But the District Court of Western Australia Act was amended by adding to s 42 a new sub-section (2a) which expressly precluded the District Court from trying offences against s 324D and s 324E.
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22 On 1 August 1992 wholesale amendments were made to the provisions of the Code relating to sexual offences: Acts Amendment (Sexual Offences) Act 1992. The entire chapter (Chapter XXX1A) was repealed and Chapter XXXI took its place. This included a new s 325 and a new s 326. These sections were in exactly the same terms as the repealed s 324D and s 324E but the offences were renamed. "Sexual penetration without consent" took the place of "Sexual assault" and "Aggravated sexual penetration without consent" took the place of "Aggravated sexual assault" in the section headings. Other offences incorporating the elements of sexual penetration without consent were created as discrete offences, such as, for example, sexual penetration of a child. Contemporaneous amendments were made to the District Court of Western Australia Act to refer to these new offences. Section 42(2a) was repealed and re-enacted to provide that the Court had no jurisdiction to try certain of the new offences including offences under the new s 325 and s 326 ie, sexual penetration without consent and aggravated sexual penetration without consent. This meant that a person accused of conduct that would have constituted the offence of rape still could not be tried in the District Court even although the new offences proscribing that conduct carried lesser maximum penalties. This reflected a legislative policy of the time that the most serious sexual offences - those arising from non-consensual sexual penetration - should remain within the exclusive jurisdiction of the Supreme Court notwithstanding that life imprisonment was no longer considered to be an appropriate maximum penalty.
23 In 1996 the Criminal Law Amendment Act was passed which, by s 32, repealed s 42(2a) of the District Court of Western Australia Act, thus restoring to the District Court jurisdiction to try all offences except those carrying life imprisonment as the maximum penalty. As no sexual offences created since 1 April 1986 were in that category the District Court obtained jurisdiction to try all such offences including, of course, the offences of sexual penetration without consent and aggravated sexual penetration without consent. This is the statutory regime which prevails today. As has been observed, the question is whether an accused person charged with the old offence of rape committed before 1 April 1986 can now be tried in the District Court. This depends on whether a person convicted of that offence today is liable to incur the penalty of life imprisonment. If so the District Court is precluded from trying him by s 42(2) of the District Court of Western Australia Act but not otherwise.
24 There is no argument that a person accused of committing acts constituting the old offence of rape may still be charged with that offence
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- if those acts were committed prior to 1 April 1986. This is so in virtue of s 37 of the Interpretation Act 1984 which provides:
"37(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
(a) …
(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment.
(c) …
(d) affect any duty, obligation, liability or burden of proof, imposed, created, or incurred prior to the repeal.
(e) subject to s 11 of the Criminal Code and s 10 of the Sentencing Act 1995, affect any penalty … liable to be incurred in respect of an offence committed against that enactment.
(f) ..."
26 The effect of s 11 of the Criminal Code is that unless the conduct complained of constituted an “offence” under the law in force when it occurred and unless it also constituted an “offence” under the law in force when the charge was laid, the person accused cannot be punished for it. There is no difficulty with this provision in this case and it can be put to one side. Conduct which constituted the offence of rape as defined by
(Page 11)
- s 325 as it stood before its repeal on 1 April 1986 is conduct that would constitute an offence under Part XXX1 of the Criminal Code as it stands today. But how may it be punished? Is the penalty for the old offence of rape still life imprisonment? If so, a person accused of that offence cannot be tried in the District Court.
27 Unless s 10 of the Sentencing Act is applicable the effect of s 37(1)(e) of the Interpretation Act would be that the maximum penalty for rape still is life imprisonment. Section 10 of the Sentencing Act is:
"If the statutory penalty for an offence changes between the time when the offender committed it and the time when the offender is sentenced for it the lesser statutory penalty applies for the purposes of sentencing the offender."
28 The word "offence" is defined in the Sentencing Act to mean "an offence under a written law" and the question must be, I think, whether the definition is broad enough to mean conduct which is made punishable by a written law. If so it is a short step to say that the statutory penalty for rape has changed, in that conduct amounting to rape committed after 1 April 1986 cannot be punished by life imprisonment. I think this is the more satisfactory approach to the construction of these legislative provisions. Conduct constituting rape and in this sense the "offence" of rape is still punishable under the Criminal Code, all of the ingredients of the offence of rape having been included in the new offences arising from sexual penetration without consent. Section 10 is concerned with fair punishment. One of its purposes is to extend to all offenders the benefit of changes in penalties where modern (hopefully more enlightened) ideas as to appropriate punishment for criminal conduct have resulted in the enactment by parliament of lower penalties. Another purpose is to ensure that no offender can be made liable to greater punishment than that to which he was liable at the time the offence was committed. This case shows that these objectives may not be achieved if a narrow construction is given to the definition of "offence" in s 10 so as to read it as meaning "an offence defined by a written law" or something similar.
29 In my opinion because all of the ingredients of the old offence of rape are taken up in the new offences arising from non–consensual sexual penetration, and the latter offences are punishable by maximum penalties which are less than the maximum penalty that may have been imposed for rape, s 10 of the Sentencing Act applies and the lesser penalties apply and life imprisonment may no longer be imposed for rape. It follows that the District Court has jurisdiction to try a person accused of rape. I would
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- add that the maximum sentence which may be imposed on such a person is to be determined by reference to the maximum sentence that may be imposed under the provisions of the Criminal Code as it now stands for the proven conduct.
30 I would answer the question reserved for the opinion of the Court: Yes.
31 MCKECHNIE J: The Chief Judge of the District Court has reserved for the opinion of the Court of Criminal Appeal the question whether a Judge of the District Court of Western Australia has jurisdiction to deal with certain counts of rape upon two separate complainants, which offences are alleged to have occurred on various dates no later than 31 December 1985.
The proceedings pending in the District Court
32 On 2 October 2001, the Crown presented to the District Court an indictment charging the accused with 44 counts alleging sexual offences against two female complainants on dates ranging between 1 January 1979 and 31 December 1989. Sixteen counts alleged that the accused committed rape upon the named complainant. The marginal note to the indictment in each such case reads: "Code Sec 325". A further eight counts particularised as occurring between 1 January 1987 and 31 December 1989 allege sexual penetration without consent. The particulars in six such counts allege penetration of the complainant's vagina with the accused's penis. In each case the marginal note reads: "Code Sec 324D".
The issue of jurisdiction arises in the pending proceedings
33 The accused pleaded not guilty to the indictment and in due course made application to sever the indictment so that in consequence there would be a separate trial held for the counts involving each complainant.
34 Neither the accused nor the Crown raised the issue of the District Court's jurisdiction to deal with the 16 counts of rape. However, the Chief Judge raised the jurisdictional issue of his own motion expressing doubts as to whether the District Court had jurisdiction to deal with allegations of rape committed prior to 1 April 1986. As is detailed in the reference, the Chief Judge said:
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- "There is in the view of senior members of the District Court Bench a doubt as to whether s 10 of the Sentencing Act has application to give this Court the necessary jurisdiction.
The statutory penalty for the offence of rape committed prior to 1 April 1986 remains life imprisonment. That has not changed.
Contrary views of great weight have been expressed but the fact remains that the Judges of the District Court of Western Australia are troubled by the jurisdictional limit imposed by s 42(2) of the District Court Act.
Whilst there are a variety of judicial views held on this matter it would in my view be unwise for the Judges of the District Court to depart from a procedure which has been followed without known exception in this jurisdiction since the 1985 Act. (Until this year it was taken as beyond query that when an indictment contained an allegation of 'rape' involving life imprisonment as a penalty was presented in the District Court, it would be administratively remitted to the Supreme Court which would accept the matter and deal with it). It would in my respectful submission be highly undesirable for a Judge of this Court to act in this matter until provided with a definitive ruling as to jurisdiction from the Court of Criminal Appeal."
The point of law reserved
35 The point of law reserved for the opinion of this Court is:
"The point of law reserved for determination by the Court of Criminal Appeal is whether a Judge of the District Court of Western Australia has jurisdiction to deal with counts 1, 2, 5, 7, 8, 10, 11, 13, 14, 20, 22, 25, 26, 27, 29 and 34 referred to on Attachment A, such being allegations of the offence of 'rape' upon two separate complainants, which offences are alleged to have occurred on various dates but the most recent (count 34) being no later than 31 December 1985."
36 Both the Crown and the accused contend that the answer to the question should be yes. As will unfold, I respectfully take a different view and hold that the answer to the question is no.
37 A Judge is not bound by the submissions of counsel on the interpretation of a statute and must rule for the interpretation considered to
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- be correct. Judges are more than umpires – they are required to think for themselves: Saif Ali v Sydney Mitchell & Co (a firm) [1980] AC 198 per Lord Wilberforce at 212.
The relevant statutes
38 The answer to the question depends to a large degree on the construction of various legislative provisions which I now set out.
District Court of Western Australia Act 1969 (WA)
39 The District Court is invested with criminal jurisdiction by the District Court of Western Australia Act 1969 (WA) Pt 3 and in particular s 42:
"(1) Except as provided in subsection (2), the Court has all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence.
(2) The Court has no jurisdiction to try an accused person charged with an indictable offence, in respect of which offence, the maximum term of imprisonment that can be imposed is imprisonment for life or strict security life imprisonment.
(3) The jurisdiction conferred on the Court by subsection (1) does not limit or diminish the jurisdiction of the Supreme Court as a Court of criminal jurisdiction."
40 The District Court, in the exercise of its criminal jurisdiction, has powers which are co-extensive with those of the Supreme Court.
41 The criminal jurisdiction of the District Court has increased since 1969.
42 Originally it had no jurisdiction to try an accused person for an offence for which the maximum term of imprisonment exceeded 14 years or for which the penalty was death.
43 In 1981 the jurisdiction was expanded to cover all offences except those for which the maximum term of imprisonment that can be imposed is imprisonment for life or where the penalty was death.
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44 In 1984, following the abolition of the death penalty from the Criminal Code, s 42 of the District Court Act was amended to delete the reference to death and insert the words "or strict security life imprisonment" which now appear.
45 In 1985 Parliament enacted the Acts Amendment (Sexual Assaults) Act 1985, proclaimed on 1 April 1986. I will deal in detail with this Act shortly. However, reference should now be made to one provision which affected jurisdiction. The Acts Amendment (Sexual Assaults Act 1985 contained what is, in some respects, a curious provision. As part of the reform of sexual offences, new offences were created. New offences of sexual assault, punishable by a penalty of 14 years' imprisonment: s 324D, and aggravated sexual assault, punishable by a penalty of 20 years' imprisonment: s 324E, were inserted into the Criminal Code. Offences with these penalties would have been ordinarily within the jurisdiction of the District Court by operation of s 42 of the District Court Act.
46 However, the District Court Act s 42, was also amended by adding s (2a):
"The Court has no jurisdiction to try an accused person charged with an offence against s 324D or 324E of the Criminal Code."
47 Clearly, Parliament's intention in 1985 was to preserve the Supreme Court's jurisdiction over serious sexual offences, notwithstanding that the penalties for such offences were otherwise within the District Court's jurisdiction.
48 In 1992, following the repeal and replacement of the sexual offences inserted into the Criminal Code in 1985 by Acts Amendment (Sexual Assaults) Act 1985, the District Court Act s 42(2a) was repealed and re-enacted:
"(2a) The Court has no jurisdiction to try an accused person charged with an offence against s 320(2) or (3), s 321A, 325, 326, 327 or 328 of TheCriminal Code."
49 This enactment confirmed the same Parliamentary intention. In 1996, however, that intention changed. In the Criminal Law Amendment Act 1996, by s 32, the District Court Act s 42(2a) was repealed.
50 The result is that since 10 October 1996 the District Court has jurisdiction to try all sexual offences in the Criminal Code.
(Page 16)
51 It may be accepted that the 1996 amendment to the District Court Act s 42 expressed a clear Parliamentary intention to extend the District Court's jurisdiction for all sexual offences, particularly sexual penetration without consent, and aggravated sexual penetration without consent.
52 It may also be accepted that a law is always speaking. However, in determining the meaning and effect of the Sentencing Act s 10, enacted in 1995, no regard can be had to the later expression of Parliamentary intention to be discerned from the amendment to District Court Act s 42.
Criminal Code: Relevant sexual offences prior to 1 April 1996
53 Until 1 April 1986 many, though not all, sexual offences were contained in Ch XXXII entitled "ASSAULTS ON FEMALES: ABDUCTION".
54 In particular, Ch XXXII s 325 defined the crime of rape and s 326 provided for its punishment:
"325. Any person who has carnal knowledge of a woman or girl, not his wife or of his wife whilst he is separated from her and they are not residing in the same residence, without her consent, or with her consent if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime which is called rape.
326. A person who commits the crime of rape is liable to imprisonment with hard labour for life, with or without whipping."
55 Chapter XXXII did not itself provide a definition of carnal knowledge. That definition was supplied by s 6 as follows:
"6. 'Carnal knowledge' and 'carnal connection', meaning of
When the term 'carnal knowledge' or the term 'carnal connection' is used in defining an offence, it is implied that the offence, so far as regards that element of it, is complete upon penetration.
(Page 17)
- Penetration includes penetration of the anus of a female or male person."
56 The common law has always supplied a complete definition of "carnal knowledge" by reference to Parke B in Regina v Joseph Lines (1844) 1 Car&K 393; 174 ER 861.
" … whether, at any time, any part of the virile member of the prisoner was within the labia of the pudendum of the prosecutrix; for if ever it was (no matter how little) that will be sufficient to constitute a penetration …"
Criminal Code – The 1986 amendments
57 On 1 April 1986 the Acts Amendment (Sexual Assaults) Act No 74 of 1985 was proclaimed.
58 The Acts Amendment (Sexual Assaults) Act brought overdue and substantial reform to the law. The heading to Ch XXXII was amended by deleting ASSAULTS ON FEMALES. Sections 325 and 326 (amongst others) were repealed.
59 A new Ch XXXIA – SEXUAL ASSAULTS was added.
60 Included within the chapter was a wider and more comprehensive definition of "to sexually penetrate" which included:
"(a) to penetrate the vagina of any person … with … any part of the body of another person …"
61 The offence of sexual assault was created by s 324D:
"324D. Any person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years."
62 A new offence of aggravated sexual assault was created by s 324E.
"324E. Any person who sexually penetrates another person without the consent of that person and in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 20 years."
63 A circumstance of aggravation was created by s 324H(e):
(Page 18)
- "The person assaulted or sexually penetrated is under the age of 16 years …"
64 Consent was defined by s 324G. The concept of force or fraudulently obtained consent, an element of rape, was refined. Force or fraud rendered the act non-consensual.
Criminal Code: The 1992 amendments
65 The Acts Amendment (Sexual Offences) Act 1992 came into effect on 1 August 1992.
66 Chapter XXXIA of the Criminal Code was repealed. A new Ch XXXI – SEXUAL OFFENCES was enacted.
67 Some of the new offences mirrored repealed offences.
68 The offence previously known as sexual assault was re-enacted in s 325:
"Sexual penetration without consent
A person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years."
69 The new title was appropriate. Assault was not an element of the repealed crime entitled Sexual Assault. The elements of the new s 325 are precisely the same as the elements of the repealed s 324D.
70 Section 326 provides a penalty of 20 years' imprisonment for aggravated sexual penetration without consent.
71 Sexual offences against a child under the age of 13 years were enacted including s 320(2):
"A person who sexually penetrates a child [a child under the age of 13 years] is guilty of a crime and is liable to imprisonment for 20 years."
72 Sexual offences against a child between ages 13 and 16 years were also created by s 321:
"(1) In this section, 'child' means a child of or over the age of 13 years and under the age of 16 years.
(Page 19)
- (2) A person who sexually penetrates a child is guilty of a crime and is liable to the punishment in subsection (7)."
…
(7) A person who is guilty of a crime under subsection (2) … is liable to imprisonment for –
(a) 14 years;
(b) where the child is under the care, supervision, or authority of the offender, 20 years; or
…"
"(a) To penetrate the vagina (which term includes the labia majora), … of any person with –
(i) any part of the body of another person; …"
"(a) 'consent' means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means;
(b) where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act;
(c) a child under the age of 13 years is incapable of consenting to an act which constitutes an offence against the child."
The continuation of repealed sections and the effect on penalty
75 There are a number of statutes dealing with the effect of the repeal of a statute which imposes criminal liability to a penalty. They are the Interpretation Act, the Criminal Code, and the Sentencing Act.
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Interpretation Act1984
"37. General savings on repeal
(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears –
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(d) affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal:
(e) subject to section 11 of The Criminal Code and section 10 of the Sentencing Act 1995, affect any penalty or forfeiture incurred or liable to be incurred in respect of an offence committed against that enactment;
(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made."
77 The Interpretation Act s 37(1)(d), preserves the liability of a person who commits the crime of rape. The liability for the crime of rape under
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- the Criminal Code is imprisonment with hard labour for life. It is this liability which is preserved by s 37(1)(d).
78 The Interpretation Act s 37, is similar in this respect to the Interpretation Act 1885 (UK), s 32(2). That statute effected a change to the common law. The common law had the contrary effect, liability ceased on repeal: Steavenson v Oliver (1841) 8 M&W 234; 10 LJ Ex 338.
79 The Interpretation Act, s 37(1)(d) and (f), preserves the ability for the Crown to bring a prosecution for the crime of rape.
Criminal Code s 11
80 Until 4 November 1996 s 11 of the Criminal Code provided:
"A person cannot be punished for doing or omitting to do an act, unless the act or omission constituted an offence under the law in force when it occurred, nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.
If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the former law or to any greater extent than is authorized by the latter law."
81 The second paragraph of Code s 11 was examined in Richardson v Brennan [1966] WAR 159. In that case the offence in issue was driving under the influence of drink or drugs so as to be incapable of having proper control of a vehicle. There was no repeal or amendment of the section which created and defined the offence. However, between the date of the offence and the date of conviction the penalty for the offence had been amended by increasing the penalty. Wolfe CJ held that the increased penalties did not apply to an offence for which the accused was convicted after the amending Act was passed where the offence had been committed before it was passed.
82 With respect, I entirely agree that Code s 11 compels this result. However, Richardson v Brennan provides no answer where both the section creating the offence and the section setting out the penalty are repealed and a new, albeit similar, offence is created with a different penalty.
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Sentencing Act 1995
83 On 4 November 1996, the Sentencing Act 1995 was proclaimed. The second paragraph of Code s 11 was repealed. The Sentencing Act, s 10 provides:
"Effect of change of statutory penalty
If the statutory penalty for an offence changes between the time when the offender committed it and the time when the offender is sentenced for it, the lesser statutory penalty applies for the purposes of sentencing the offender."
An offence defined
84 The Criminal Code, s 2 defines "Offence";
"An act or omission which renders the person doing the act or making the omission liable to punishment …"
85 The Sentencing Act defines "offence":
" … means an offence under a written law;"
86 Rape is a particular type of offence known as a crime. The only practical significance of this classification now is that a crime is an indictable offence: Code s 3.
The issue
87 The issue to be decided is: To what does the word "offence" in the Sentencing Act s 10 actually refer? Expressed another way: Has the statutory penalty for the offence of rape changed between 1985 and the present? If it has, then s 10 provides that if the accused is ultimately convicted of any count of rape the maximum penalty he will face is a sentence of 14 years because that is the maximum penalty for the crime of sexual penetration without consent: Code s 325. The accused might be liable to a penalty of 20 years under Code s 326 because of the aggravating circumstance that the complainant was relevantly under the age of 13 years. However, this immediately exposes the problem which I shall shortly address.
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Submissions on behalf of the prosecution
88 Each party's submissions are broadly similar though each emphasised different aspects of the issue. They were developed with care by each counsel and I do not intend to diminish the force of their submissions by outlining them in summary form.
89 The Crown submits that the acts rendering a person liable to punishment constituted in the old offence of rape, as it existed prior to 1 April 1986 Code s 325 (repealed), are now encompassed within provisions in relation to Sexual penetration without consent: Code s 325 (current).
90 The offence of rape is a different offence from the offence of aggravated sexual assault or sexual assault and the later offences of aggravated sexual penetration or sexual penetration. The later offences are broader and more comprehensive and deal with a wide range of conduct of a sexual nature, one aspect of which encompasses conduct that would have previously amounted to the offence of rape.
91 Section 37 of the Interpretation Act 1984 has the effect of preserving the offence of rape upon its repeal, but makes that preservation subject to s 11 of the Criminal Code and s 10 of the Sentencing Act 1995. Section 10 of the Sentencing Act 1995 preserves the principle enunciated by Wolff CJ in the case of Richardson v Brennan [1966] WAR 159 at 160, namely that where a statutory penalty changes between the time of the commission of an offence and the time of sentencing the lesser penalty applies.
92 An offender convicted of rape, and who is to be sentenced today, cannot receive a sentence of life imprisonment. Section 10 of the Sentencing Act, which is couched in mandatory terms, operates to ensure that the maximum penalty that can be imposed is 14 years or at the most 20 years. Because the maximum penalty that can be imposed is not imprisonment for life, or strict security life imprisonment, the offence is not removed from the jurisdiction of the District Court.
93 Section 10 of the Sentencing Act operates to preserve the jurisdiction of the District Court in respect of the offence of rape in s 325 of the Criminal Code as it existed prior to April 1986.
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Submissions on behalf of the accused
94 The submissions for the accused, in summary, assert that, on the preferred interpretation, it is the statutory penalty for the relevant offence which has changed. It is acknowledged that although of course the offence in question is different it is not altered in the material sense. The provisions relating to sexual crimes have been altered. The conduct constituting the former offence of rape is prescribed in another place in the Criminal Code. Although the description formerly attached to the sexual crime constituted by the penile penetration of the vagina without consent has been abandoned commission of that act remains a sexual crime albeit known now by another name.
95 It is further submitted that focus has properly to be directed to the particular act or physical violation in issue; ie the specific facts as alleged.
96 This theme is developed by reference to counts 5 and 7 on the indictment seeking to establish that as the accused was alleged to have raped the complainant on at least two occasions when she was 13 years old. In order to be convicted of the crime created by s 321 of the Criminal Code it has to be proved that:
(a) the accused sexually penetrated the complainant
(b) the complainant was of or over the age of 13 years and under the age of 16 years at the relevant time.
97 The difficulty with that submission is that age is not an ingredient of the offence of rape. It is not a fact which the Crown must prove.
Specific allegations of fact are irrelevant
98 I shall explain why I differ from the contentions of the parties as to the proper answer to the question of law reserved.
99 I deal first with the submission on behalf of the accused that the focus must be on the specific acts alleged.
100 This submission cannot be accepted. The jurisdiction of the District Court under the District Court Act s 42 is determined solely by reference to liability for punishment for an offence. The specific acts or omissions which are elements of the offence are irrelevant. This is unsurprising. The jurisdiction of courts of limited jurisdiction is generally determined either by reference to liability for a specific penalty, or by reference to a claim not exceeding a specific amount of money, or by reference to
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- specific causes or matters. The jurisdiction of a court, especially one with powers co-extensive with the Supreme Court, cannot depend upon the existence of particular allegations of fact. The jurisdiction to try an accused is enlivened by the indictment. If the indictment discloses offences known to the law and those offences do not render an accused liable to life imprisonment then the District Court has jurisdiction. Particulars of the offence, whether pleaded or unpleaded, cannot affect jurisdiction.
Rape is a different offence from sexual penetration
101 Both the Crown and the accused's submissions proceed on the premise that the offence of rape has metamorphosed so that it is now to be equated with part of the offence of sexual penetration. No authority is cited to support the metamorphosis. This is a false premise. By virtue of the Interpretation Act s 37(1) the offence of rape continues as an offence known to the criminal law of Western Australia, albeit only in respect of acts which occurred prior to 1 April 1986. Each party concedes that the offence of rape has continued in operation and is capable of application in the present case. The offence remains unchanged. Rape has not become the offence of sexual penetration and cannot.
102 This proposition may be tested by analysing the elements of the two offences. The elements of the offence of rape are as follows. A person who has carnal knowledge of a woman or girl:
not his wife;
or of his wife while he is separated from her;
without her consent;
or with her consent if the consent is obtained;
by force;
or by means of threat or intimidation of any kind;
or by fear of bodily harm;
or by means of false and fraudulent representations as to the nature of the act;
or in the case of a married woman by impersonating her husband.
103 The elements of sexual penetration include:
penile penetration of the vagina;
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- without consent as defined.
104 The elements of the offences of rape and sexual penetration are different. Sexual penetration does not require the prosecution to prove lack of marriage. Rape does. The crime of rape might be committed with consent if the consent was obtained by one of the enumerated methods. To establish the crime of sexual penetration the Crown must establish a lack of consent freely and voluntarily given.
105 In Wagenaar v The Queen [2000] WASCA 325, Ipp J (Kennedy and Pidgeon JJ concurring) acknowledged at [19] that the present definition of consent under s 319(2) might differ from the meaning of consent under the old s 325 of the Criminal Code.
106 In BRK & Ors v The Queen [2001] WASCA 161 a question at issue was whether the offence of sexual penetration was an offence of specific intention. At par 94 Owen J compared the crime of sexual penetration with the crime of rape saying:
" … The references in the former to the position of a married woman are a reflection of an attitude to the institution of marriage which has passed into history. It has nothing whatsoever to say about the state of mind of the perpetrator of the crime. The expanded concept of consent which is found in s 325 has now been transferred into s 319(2) in similar terms. The phrase 'carnal knowledge' has been replaced by the defined term associated with the concept of penetration. Looked at in this light, the change from s 325 to s 326 has not effected any material alteration to the underlying concepts that would justify re-examining the reasoning in Attorney-General's Reference (No 1 of 1977) insofar as it negatived the view that rape was a crime of specific intent."
107 While I accept that the underlying concepts are the same, the elements necessary to be proved are nevertheless different.
The offence has not changed
108 The Interpretation Act s 37(1)(e) refers to a penalty to be incurred "in respect of an offence committed against that enactment". That enactment is the repealed enactment, ie rape. It is an argument of circularity to then use the Sentencing Act s 10 to justify the change of the offence by referring to a change of the statutory penalty brought about by the enactment of a different offence. Criminal Code s 326 has been repealed
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- not amended. It continues to supply the liability to punishment for the crime of rape committed prior to 1 April 1986. The penalty for rape immediately prior to 1 April 1986 was life imprisonment.
109 Section 10 of the Sentencing Act should be paraphrased as follows in its application to the present case: If the statutory penalty for rape changes between the time when the offender committed it (ie prior to 1 April 1986) and the time the offender is sentenced for it (ie 2003) the lesser statutory penalty applies for the purpose of sentencing the offender.
The case of Miller v Raye
110 The only relevant case which researches of counsel have been able to uncover is Miller v Raye, unreported, SCt of WA (Murray J); Library No 970688; 2 December 1997.
111 Miller v Raye concerned an application for compensation pursuant to the provisions of the Criminal Injuries (Compensation) Act 1970 (WA). The respondent had been convicted in the Supreme Court of indecent assault, attempted rape, and carnal knowledge against the order of nature. The applicant wished to pursue compensation in respect of those matters. The Supreme Court had jurisdiction to deal with the application under the Criminal Injuries (Compensation Act) 1970 (WA) s 4.
112 Additionally, the applicant wished to pursue compensation for a large number of uncharged acts. The jurisdiction to deal with those matters pursuant to the Criminal Injuries (Compensation) Act 1970 (WA) s 6A is conferred directly on the District Court.
113 Application was made to Murray J to remit the application for compensation for the convictions to the District Court and a question arose whether the District Court had jurisdiction to deal with the remitter. The judgment was delivered extempore at page 6:
"I say that although originally the offence of rape was one which was punishable by life imprisonment, because, as at the time when the matters came for trial and were to be dealt with upon indictment, the position under the Criminal Code was that those matters were punishable by maximum penalties of 20 years imprisonment.
So the question is whether I may regard s42(1) as conferring upon the District Court the jurisdiction and powers conferred upon this Court as the court of trial by the Criminal Injuries
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- Compensation Act s4. I am satisfied that I may do so. It seems to me that there is no reason why the plain and direct wording of the section [District Court of Western Australia Act, s 42] should not be given that effect."
114 Although Murray J expressed a conclusion, it was not necessary for him in the summary disposition of the case to outline the reasons by which he concluded that the District Court had jurisdiction. The judgment does not identify whether the issue was the subject of submissions by counsel.
Conclusion
115 The conclusion which I reach about the jurisdiction of the District Court is, with great respect, one different to that reached by Murray J in Miller v Raye.
116 An answer no to the question does not deny or limit the operation of Interpretation Act, s 37 or the Sentencing Act, s 10. On the contrary there is ample scope for their operation.
117 The proper construction of Sentencing Act s 10 is the same as that of Criminal Code s 11 decided in Richardson v Brennan.
118 But the Sentencing Act s 10 is limited to cases where the actual penalty for the precise offence is amended. It has no application to cases where the penalty for another offence, albeit with some common elements, is amended.
119 The better view is that the Sentencing Act s 10 is intended to apply to offences which themselves remain unaltered but the penalties for which are increased or reduced.
120 Full force must be given to the words of the Interpretation Act s 37. As a result, I hold that the statutory penalty for those counts which specify rape on the indictment is life imprisonment. I answer the point of law reserved for the opinion of the Court: No.
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