R v W

[2015] SASCFC 86

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Case Stated)

R v W

[2015] SASCFC 86

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray, The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Peek)

11 June 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - OTHER MATTERS

CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - EFFECT

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE - OTHER MATTERS

The defendant pleaded guilty to three counts of aggravated indecent assault in the Magistrates Court on 22 May 2010. The defendant disputed the aggravating feature that the victim was under 14 years of age. A question of whether the guilty plea was valid when the aggravating factor was disputed was raised in the District Court. The Judge reserved questions for consideration by the Court of Criminal Appeal.

The questions reserved ask this court to determine whether s 56(1) of the Criminal Law Consolidation Act creates a single offence, with an aggravating factor affecting sentencing, or two separate offences.

Held (The Court):

1. The defendant entered a valid plea in the Magistrates Court to the offence of Aggravated indecent assault.

2. Circumstances of aggravation prescribed by s 56(2) should be pleaded in the information.

3. Aggravating factors in s 5AA must be pleaded on the information.

4. Where a defendant admits to one or more aggravating factors any disputed aggravating factors, to that charge, must be determined by the Judge in sentencing.

5. Where a defendant does not admit any aggravated features pleaded then it is a matter of determination for a jury.

Criminal Law Consolidation Act 1935 (SA) s 5AA, s 56; Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA), referred to.
R v Hietanen (1989) 51 SASR 510; Ayles v The Queen (2008) 232 CLR 410; R v Meaton (1986) 160 CLR 359, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"aggravation", "statutory construction", "information", "pleaded on information", "aggravating factor", "multiple aggravating factors", "sentencing of aggravated offences"

R v W
[2015] SASCFC 86

Court of Criminal Appeal: Kourakis CJ, Gray, Vanstone, Kelly and Peek JJ

1. THE COURT:      This is a case stated by a Judge of the District Court to the Full Court pursuant to s 350(2) of the Criminal Law Consolidation Act 1935 (SA) (the Act). The case arises out of the sentencing proceedings of the defendant W.

2. On 22 May 2014 W pleaded guilty in the Magistrates Court to three counts of aggravated indecent assault against his daughter.  Each count was identically charged as follows:

   Between the 31^st day of August 2011 and the 1^st day of December 2011 at GOOLWA in the said State, indecently assaulted [AW], a child under the age of fourteen years. Section 56(1) of the Criminal Law Consolidation Act 1935. This is an aggravated offence. It is further alleged that the offender committed the offence knowing that the victim of the offence was a child of whom the offender had custody as a parent or guardian. This is a major indictable offence.

3. The offence charged by each count was separately identified in the sentencing materials by reference to its particular acts and surrounding circumstances.

4. It is an agreed fact that AW was born on 19 December 1997 and is W’s daughter.

5. On the defendant’s plea in the Magistrates Court the file was endorsed with a notation that the defendant disputes both the aggravating feature that the victim was under the age of 14, and the timeframe particularised in the counts.  That endorsement requires a little elaboration.  As we have already observed, AW’s date of birth is not disputed.  Nor is the commission of each of the offences identified by reference to particular conduct and surrounding circumstances.  The only dispute is whether the offences so identified were committed before or after 19 December 2011. 

6. On 23 June 2014, counsel for the Director of Public Prosecutions (the Director) informed the Judge that the Director doubted the validity of the guilty pleas entered in the Magistrates Court because of the defendant’s reservation noted in the endorsement.  The matter came on again before the Judge in the District Court on 22 July 2014, 5 September 2014, 23 September 2014, and 13 October 2014.  On 30 October 2014 the Judge reserved the following questions for the consideration of the Full Court:

   1.Was the defendant’s plea of guilty a valid plea of guilty to any offence pursuant to section 56(1) of the Criminal Law Consolidation Act in circumstances where it was accompanied by a statement disputing both the age of the complainant and the date of offending?

   2.If yes to question 1, to what offence?

   3.Where, as here, the defendant is charged with an aggravated offence but pleads guilty denying the circumstance of aggravation articulated in section 56(2) must the determination of that issue proceed as a trial with a jury (or by judge alone if an election is made), or is it to be determined by the judge as part of the sentencing process?

   4.Where the circumstance of aggravation is pursuant to section 5AA(1)(g), must the determination of that issue proceed as a trial with a jury (or by judge alone if an election is made), or is it to be determined by the judge as part of the sentencing process?

7. A Court of five was convened at the request of the Director and the defendant because the questions reserved raised the issue of whether s 56(1) of the Act creates a single offence of indecent assault for which a higher penalty is provided when the offence is committed in circumstances of aggravation, or whether it enacts an additional offence, or offences, constituted by the presence of one or more aggravating circumstances. Section 56 of the Act provides:

   56—Indecent assault

   (1)A person who indecently assaults another is guilty of an offence.

   Maximum penalty:

   (a)     for a basic offence—imprisonment for 8 years;

   (b)     for an aggravated offence—imprisonment for 10 years.

   (2)If the victim of the offence was at the time of the offence under the age of 14 years, the offence is an aggravated offence and it is unnecessary for the prosecution to establish that the defendant knew of, or was reckless as to, the aggravating factor.

8. Different views have been expressed by members of this Court on the legal significance of the enactment of penalty provisions which, like s 56 of the Act, impose different penalties “for a basic offence” and “for an aggravated offence”.[1] 

   [1]    Arthur v Police (2008) 101 SASR 529; R v Sumner; R v Fitzgerald (2013) 117 SASR 271; F v Magistrates Court of South Australia & Anor (2013) 115 SASR 232; Glouftsis v Police (2014) 120 SASR 420.

9. On the hearing of the stated case, neither the Director nor the defendant alleged that the plea was invalid.  Indeed, they joined in proposing almost identical answers to the questions:

Director of Public Prosecutions	Defendant
Question 1	Yes	Yes
Question 2	Aggravated indecent assault	Aggravated indecent assault
Question 3	It is to be determined by the Judge as part of the sentencing process	In this case, the determination of the circumstance of aggravation articulated in s 56(2) is a matter for the Judge.
Question 4	Whilst this question does not need to be answered, the answer is that it will proceed as a trial with a jury if it is the only aggravating circumstance and it is disputed. It may, however, be determined by the Judge as part of the sentencing process if it is disputed, but another aggravated circumstance pursuant to s 5AA has been acknowledged such that the defendant has pleaded guilty to the aggravated form of the offence.	The answer to the fourth question depends upon whether the defendant has pleaded guilty to an aggravated offence.  If so, the existence of any additional circumstances of aggravation relied upon must be determined by the Judge.  If the guilty plea is to a basic offence, and statutory circumstances of aggravation are alleged, the existence of all or any circumstances of aggravation must be proved at trial by a jury (or by Judge sitting alone if the defendant so elects).

Relevant statutory provisions

1. The definitions of aggravated offence and basic offence in s 5 of the Act are:

   aggravated offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form (see section 5AA);

   basic offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to a basic offence is a reference to the offence in its non-aggravated form (see section 5AA);

2. Section 5AA relevantly provides:

   5AA—Aggravated offences

   (1)Subject to this section, an aggravated offence is an offence committed in 1 or more of the following circumstances:

   …

   (e)     the offender committed the offence knowing that the victim of the offence was, at the time of the offence—

   (i)in the case of an offence against Part 3 Division 11A—under the age of 14 years;

   (ii)in any other case—under the age of 12 years;

   …

   (g)     the offender committed the offence knowing that the victim of the offence was—

   (i)a spouse or former spouse of the offender; or

   (ii)a domestic partner or former domestic partner of the offender; or

   (iii)a child of whom—

   (A)the offender; or

   (B)a spouse or former spouse of the offender; or

   (C)a domestic partner or former domestic partner of the offender,

   has custody as a parent or guardian; or

   (iv)a child who normally or regularly resides with—

   (A)the offender; or

   (B)a spouse or former spouse of the offender; or

   (C)a domestic partner or former domestic partner of the offender;

   …

   (2)A person is taken to know a particular fact if the person, knowing of the possibility that it is true, is reckless as to whether it is true or not.

   …

   (3)If a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.

   (4)If a jury finds a person guilty of an aggravated offence, and 2 or more aggravating factors are alleged in the instrument of charge, the jury must state which of the aggravating factors it finds to have been established (but a failure to comply with this subsection does not affect the validity of the jury’s verdict).

   …

   (6)This section does not prevent a court from taking into account, in the usual way, the circumstances of and surrounding the commission of an offence for the purpose of determining sentence.

   Examples—

   1       A person is charged with a basic offence and the court finds that the offence was committed in circumstances that would have justified a charge of the offence in its aggravated form. In this case, the court may, in sentencing, take into account the circumstances of aggravation for the purpose of determining penalty but must (of course) fix a penalty within the limits appropriate to the basic offence.

   2       A person is charged with an aggravated offence and the court finds a number (but not all) of the circumstances alleged in the instrument of charge to aggravate the offence have been established. In this case, the court may, in sentencing, take into account the established circumstances of and surrounding the aggravated offence (whether alleged in the instrument of charge or not) but must not (of course) take account of circumstances alleged in the instrument of charge that were not established.

   Discussion

3. There is a rule of construction that if a statutory provision exposes a defendant to a higher maximum penalty when an offence punishable by a lower maximum penalty (the basic offence) is committed in statutorily prescribed aggravating circumstances, the legislature intends to constitute the aggravated form of the offence, as an offence which is distinct from the basic offence.  The elements of the discrete aggravated offence are the elements of the basic offence, together with the prescribed aggravating circumstances.  King CJ identified the authoritative sources of that rule of construction in R v Hietanen:[2]

   The first question to be determined is whether subss (3) and (4) read together have the effect of creating three distinct offences with different maximum penalties. In R v Courtie [1984] AC 463 Lord Diplock (with whom the other members of the House of Lords agreed) said at 471:

   “My Lords, where it is provided by a statute that an accused person’s liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another.”

   In their joint judgment in Kingswell v The Queen (1985) 159 CLR 264 at 276, Gibbs CJ, Wilson J and Dawson J pointed out that “this passage cannot have been intended to state an absolute rule of law, but rather a rule of construction or an indication of the way in which the courts will approach a question of this kind”. Their Honours said (at 276):

   “ … there is no fundamental law that declares what the definition of an offence shall contain or that requires the Parliament to include in the definition of an offence any circumstance whose existence renders the offender liable to a maximum punishment greater than that which might have been imposed if the circumstance did not exist. The existence of a particular circumstance may increase the range of punishment available, but yet not alter the nature of the offence, if that is the will of the Parliament. The rule of construction which Lord Diplock has enunciated is a salutary one, but must yield to an expression of a contrary intention.”

   [2] (1989) 51 SASR 510 at 512-514.

4. In Hietanen King CJ held, despite the rule of construction, that the text of ss 19a(3) and (4) of the Act as it then stood, enacted a single offence with a higher maximum penalty if an aggravating circumstance was present.  King CJ then went on to state a rule of practice that aggravating circumstances should be pleaded on the instrument of charge even when a single offence has been enacted:[3]

   The above citations show that it has been authoritatively laid down by the High Court that where a statute fixes different penalties for an offence by reference to the existence or non-existence of circumstances of aggravation, there is a rule of practice that the circumstances which would expose the accused to the higher penalties must be pleaded in the charge and, if issue is joined, must be adjudicated upon by the jury or other tribunal of fact. This situation is not to be confused with the ordinary case in which facts relevant to the exercise of the sentencing discretion within the prescribed range of penalties are decided by the sentencing judge and need not be pleaded.

   It follows that if the prosecution wishes to invoke the higher maximum penalties prescribed in subs (4), it must allege in the charge that a motor vehicle was used in the commission of the offence and, if appropriate, that grievous bodily harm was caused to a person. A jury trying the charge must “then be directed that it would be open to them (in appropriate circumstances) to find the accused guilty of the charge without those circumstances of aggravation”: R v Meaton per Gibbs CJ, Wilson J and Dawson J at 364. It is open to an accused person to plead guilty to the charge but to deny any allegation in the charge that a motor vehicle was used or that the bodily harm caused was grievous. If that occurs, the prosecution may, of course, accept the plea in satisfaction of the charge. If it does not do so, issue has been joined as to the existence of the relevant circumstance of aggravation and that issue must be tried by a jury. If the circumstance of aggravation consists of the commission of a prior offence, the procedure in that event referred to in Kingswell v The Queen at 281 would of course be followed.

   The two offences charged in the information involved the causing of bodily harm to two occupants of the other car involved in a collision with the vehicle driven by the appellant. The two counts were in identical terms and the particulars alleged that the appellant “drove a motor vehicle in a manner which was dangerous to the public, and thereby caused bodily harm to” the named victim. There was therefore an allegation of use of a motor vehicle but no allegation that the bodily harm caused was grievous. The appellant pleaded guilty to each offence as charged. There was no reference in the submissions made by counsel for the prosecution or the defence to the question whether the bodily harm caused was grievous. The judge’s finding was that “the bodily harm sustained was grievous in both cases, and especially so in the case of Miss Harford”.

   The consequence of non-observance of the rule of practice was stated by the majority in R v Meaton at 364 as follows:

   The rule requiring the circumstances of aggravation to be stated in the indictment is, as we have said, a rule of practice. Any failure to observe it does not necessarily mean that the conviction should be set aside — indeed, that appears from Kingswell v The Queen where the practice was not observed but the sentence was allowed to stand. In any case in which there is a failure to observe the practice which we have laid down, it will become necessary to consider whether a miscarriage of justice has resulted and only if that question is answered in the affirmative should the sentence be set aside.

   [3] (1989) 51 SASR 510 at 514-515.

5. The rationale for the rule of construction is the protection of the common law procedural “right” to trial by jury from the depredations of the legislature.  That “right” would be undermined if an accused were not entitled to have the existence of circumstances which would expose him or her to a higher maximum penalty determined by a jury.  Of course, subject to certain constitutional limits which are not presently implicated, the legislature may modify common law procedure.  However, the rule of construction ensures that the right is not compromised other than by express words or necessary implication. 

6. The rationale for the rule of construction also underpins s 5AA(5) of the Act. That provision requires the circumstances of aggravation enumerated in s 5AA of the Act to be pleaded in the instrument of charge and s 5AA(4) of the Act provides that the jury must state the aggravating factors it finds to have been established. Those provisions afford defendants the same protection that the common law rule of construction seeks to achieve. The obligations are expressed in mandatory terms, but non-compliance by a jury does not affect the validity of its verdict.

1. The enactment of s 5AA(5) of the Act displaces the rule of construction. The protection afforded by s 5AA(4) of the Act also means that in practice it will seldom be necessary to determine whether the penalty provisions in the Act, which provide a higher maximum for an aggravated form of an offence committed because of the presence of a s 5AA circumstance, constitute offences which are distinct from the basic form of the offences.

2. Turning to the proper construction of s 56 of the Act, we observe that it might create:

   ·a single offence for which a higher penalty is provided if its commission is attended by either the circumstance of aggravation prescribed in s 56(2) of the Act; or by one or more of the circumstances set out in s 5AA of the Act;

   ·a basic offence the commission of which is not attended by any circumstance of aggravation and a distinct aggravated offence which is committed when the basic offence is committed in any one or more of the circumstances prescribed by s 56(2) or s 5AA of the Act;

   ·a single offence for which a higher penalty is provided if the circumstances prescribed by s 56(2) of the Act, that the victim is under the age of 14, is present, and a different aggravated offence if a s 5AA circumstance is present;

   ·three distinct offences: the basic offence in s 56(1); an aggravated offence if the basic offence is committed in the circumstance prescribed by s 56(2) and another aggravated offence if one or more of the aggravating circumstances in s 5AA is present.

3. The last of those alternatives must be rejected. The penalty provision, if it is to be construed as creating more than one offence, creates no more than two offences: a basic form of the offence and an aggravated form of the offence. The penalty for the aggravated form of the offence applies if the basic offence is committed in the presence of any one or more of the s 5AA or s 56(2) circumstances.

4. Moreover, s 56(2) of the Act must be read together with s 5AA of the Act. Both provisions were enacted at the same time.[4] The effect of s 56(2) of the Act is to modify the aggravating circumstance prescribed by s 5AA(1)(e)(ii) of the Act so that, for the purposes of the aggravated form of the offence created by s 56(1) of the Act, the age of the victim is 14, and not 12, and it is not necessary to prove that the accused knew the victim’s age.

   [4]    Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA).

5. The Director contended for the third alternative construction and submitted that this Court should qualify the rule of practice stated by King CJ in Hietanen such that the age of the victim need not be particularised in the information, leaving it to the sentencing judge to determine whether that circumstance exists. We reject that submission. The rule of practice is sound and of long standing. It should be adhered to. On the question of construction the Director’s submission should be rejected because, as we have already observed, s 56(2) of the Act should be read together with s 5AA of the Act. Moreover, the penalty provision at the foot of s 56(1) of the Act cannot serve both the purpose of creating a distinct aggravated offence when the basic offence is aggravated by a s 5AA circumstance, and the purpose of providing a higher different maximum penalty for the single offence enacted by s 56 of the Act when the victim is under the age of 14 years.

6. The Director and the defendant both contended that s 56(1) creates a distinct aggravated offence when the basic offence is committed in the presence of a s 5AA circumstance. However, it is on that question that Judges of this Court have expressed different opinions. The resolution of that issue would determine which of the first two alternative constructions we set out in paragraph [17] above was intended by Parliament. Be that as it may, it is not necessary to resolve that issue in order to answer the questions stated in this case.

7. For the following reasons, whichever of the first two constructions is correct in this case, it falls for the Judge to determine the age of AW at the time of the offences. On the first construction, the position is as follows. By his plea, the defendant has pleaded guilty to the single offence created by s 56(1) and has admitted the “parent” aggravating circumstance prescribed by s 5AA of the Act. The higher maximum penalty therefore applies and it is the proper function of the Judge to determine the age of AW at the time of the offending for the purpose of determining the appropriate sentence within the statutory maximum of 10 years. On the second construction, namely that two distinct offences are enacted, being a basic offence and an aggravated offence which is committed when the basic offence is attended by any of the aggravating circumstances in s 5AA or s 56(2), the following is the position. The defendant has pleaded guilty to that aggravated offence on the basis that he is AW’s father and again it is for the Judge to determine whether the other aggravating circumstance, the age of AW, is proved.

8. The sentencing procedure we have outlined is sanctioned both by authority[5] and by s 5AA(6) of the Act including the statutory note to that subsection.

   [5]    See R v Meaton (1986) 160 CLR 359 at 364.

   Conclusion

9. We would answer the questions as follows:

1. Was the defendant’s plea of guilty a valid plea of guilty to any offence pursuant to section 56(1) of the Criminal Law Consolidation Act in circumstances where it was accompanied by a statement disputing both the age of the complainant and the date of offending?	Yes
2.     If yes to question 1, to what offence?	Aggravated indecent assault
3. Where, as here, the defendant is charged with an aggravated offence but pleads guilty denying the circumstance of aggravation articulated in section 56(2) must the determination of that issue proceed as a trial with a jury (or by judge alone if an election is made), or is it to be determined by the judge as part of the sentencing process?	The circumstance of aggravation prescribed by s 56(2) of the Act should be pleaded in the Information. If a defendant admits another pleaded circumstance of aggravation prescribed by s 5AA of the Act the s 56(2) issue must be determined by the Judge in the sentencing proceedings. If a defendant does not admit any of the pleaded circumstances of aggravation the existence or otherwise of the pleaded circumstances must be determined by a jury.
4. Where the circumstance of aggravation is pursuant to section 5AA(1)(g), must the determination of that issue proceed as a trial with a jury (or by judge alone if an election is made), or is it to be determined by the judge as part of the sentencing process?	Circumstances of aggravation prescribed by s 5AA of the Act must be pleaded in the Information. If the defendant has admitted a circumstance of aggravation prescribed by s 5AA or s 56(2) of the Act a dispute as to the existence of any other circumstance of aggravation must be determined by the Judge in the sentencing proceedings. If a defendant has not admitted any of the pleaded circumstances of aggravation the existence or otherwise of the pleaded circumstances must be determined by a jury.