The State of Western Australia v TAB
[2022] WASC 344
•14 OCTOBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TAB [2022] WASC 344
CORAM: FIANNACA J
HEARD: 27 SEPTEMBER 2022
DELIVERED : 27 SEPTEMBER 2022
PUBLISHED : 14 OCTOBER 2022
FILE NO/S: INS 15 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
TAB
Accused
Catchwords:
Criminal law - Murder - Sentencing - Imposing life imprisonment - Offence committed in the course of conduct that constitutes an aggravated home burglary - Statutory construction of s 279(5A) of the Criminal Code (WA) and s 90(1)(a)(i) of the Sentencing Act 1995 (WA) - Meaning of 'if the offence is committed' - Offender a child at time of acts constituting offence, but adult at time of victim's death - Determination of when offender must be an 'adult offender' for the mandatory sentencing provisions to apply - Policy reasons for distinguishing between adult offenders and juvenile offenders in the mandatory sentencing provisions
Legislation:
Criminal Code (WA)
Sentencing Act 1995 (WA)
Young Offenders Act 1994 (WA)
Result:
Ruling made that none of the mandatory sentencing provisions in respect of murder in s 90(1)(a)(i) of the Sentencing Act, s 279(5A) of the Criminal Code or s 279(6A) of the Criminal Code apply to the offender
Category: B
Representation:
Counsel:
| Prosecution | : | Ms K Robinson & Ms A Garrett |
| Accused | : | Ms J Fisher |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Fisher Legal |
Cases referred to in decision:
Austic v The State of Western Australia [2010] WASCA 110
Mikhail v The State of Western Australia [2012] WASCA 200
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Royall v R (1991) 172 CLR 378
Swan v The Queen [2020] HCA 11; (2020) 269 CLR 663
The State of Western Australia v Williams [2022] WASCA 105
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
FIANNACA J:
Background
TAB (the offender) was convicted on 5 April 2022, after a trial by jury, of the offence of murder, under s 279 of the Criminal Code (WA), and an offence of aggravated robbery, under s 392 of the Criminal Code. The jury also found proved that the murder was committed by the offender in the course of conduct that constituted an aggravated home burglary. The jury's finding on that issue was sought because it was thought, at that stage, that mandatory sentencing provisions,[1] to which the finding was relevant, applied to the offender. It was not in dispute that, if the offender was found guilty of murder, the offence was committed in the course of an aggravated home burglary. The offender had pleaded guilty to an offence of aggravated home burglary and an offence of stealing a motor vehicle, relating to the same incident, at the start of the trial.
[1] Criminal Code s 279(5A); Sentencing Act 1995 (WA) (Sentencing Act) s 90(1)(a)(i).
After the offender was convicted, the applicability of the mandatory sentencing provisions, to which I have referred, was questioned. Therefore, there is a preliminary issue of statutory construction that needs to be determined before I sentence the offender. I indicated to counsel that I would deal with the preliminary issue prior to hearing submissions in relation to sentence, so that counsel could then confine those submissions according to my ruling. Both parties included submissions in respect of the preliminary issue as part of their written sentencing submissions. At the sentencing hearing on 27 September 2022, I heard further oral submissions from counsel in respect of the preliminary issue. At the conclusion of those submissions, I gave my ruling that the mandatory sentencing provisions did not apply. I gave brief reasons and indicated I would publish reasons later.
These are my reasons for the ruling.
Circumstances of the offending
The acts constituting all of the offences referred to in [1] above were committed by the offender in the early hours of 31 October 2019. At that time, he was 17 years of age, having been born on 5 November 2001.
The offender broke into the home of the deceased, Ms Odette Feige, and assaulted her while she sat in a lounge chair, causing her significant head injuries. For the purposes of sentencing, it will be necessary to determine whether the offender acted alone or with a co-offender. That issue does not affect the determination of the preliminary issue.
Having assaulted Ms Feige, leaving her in a bloodied and disabled condition, the offender ransacked parts of the house and stole property from within the house, before stealing Ms Feige's vehicle, which was in her garage. The stealing of property from the house was the subject of both the aggravated home burglary and the aggravated robbery, to which I have referred.
Ms Feige was found on the floor of her lounge room by her carer later on the morning of 31 October 2019. Emergency services were called, and Ms Feige was taken to the St John of God Hospital in Midland for emergency treatment. She was found to have suffered a fractured jaw, a fractured left eye socket, a subdural haematoma and intra-cerebral bleeding. She was transferred to Royal Perth Hospital, where she died on 29 November 2019 from complications of the head injuries.
The offender's criminal responsibility for murder
By s 279(1) of the Criminal Code, a person is guilty of murder if the person unlawfully kills another person and (relevantly, for the purposes of this case):
(b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or
(c)the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life.
Section 270 of the Criminal Code provides that:
Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.
Section 275 of the Criminal Code also has relevance in this case. It provides:
When a person does grievous bodily harm to another and such other person has recourse to surgical or medical treatment (including palliative care), and death results either from the injury or the treatment, he is deemed to have killed that other person, although the immediate cause of death was the surgical or medical treatment; provided that the treatment was reasonably proper under the circumstances, and was applied in good faith.
'Death' is not defined in the Criminal Code, but the effect of s 5 of the Interpretation Act 1984 (WA) (Interpretation Act) is that, for the purposes of the Criminal Code, the term has a meaning affected by s 13C of the Interpretation Act, which provides that 'a person dies when there occurs - (a) irreversible cessation of all function of the person's brain; or (b) irreversible cessation of circulation of blood in the person's body'.
It is evident from the elements of the offence that a person is not criminally responsible for the offence of murder until the victim dies, even though the offender's acts that have caused the death, directly or indirectly, may have occurred some considerable time before the death. It is only when the victim dies that an offender is deemed to have killed the victim, by having caused the victim's death directly or indirectly. An offender will have caused the victim's death if the offender substantially or significantly contributed to the death.[2]
[2] Royall v R (1991) 172 CLR 378; Swan v The Queen [2020] HCA 11; (2020) 269 CLR 663.
The medical evidence in the trial established that the deceased died on 29 November 2019, and that the cause of death was 'complications following head injury in an elderly woman with multiple co-morbidities, … and palliation'.[3]
[3] ts 273 (Dr Junckerstorff, XN).
The offender was alleged to have indirectly caused the deceased's death, in that the deceased did not die as a direct result of the head injuries she suffered on 31 October 2019, but from complications that developed while she was being treated for those injuries in hospital. Had the deceased not suffered the head injuries on 31 October 2019, she would not have suffered the complications in hospital that resulted in her death. The offender was alleged to have substantially contributed to the deceased's death by causing the head injuries that indirectly resulted in her death, as I have described. The case was left to the jury on the basis that the offender did so by personally inflicting the head injuries, or by aiding another offender to do so, in circumstances that amounted to murder.
Therefore, the jury's verdict of guilty for the offence of murder means that the jury was satisfied that an act (or acts) of the offender substantially contributed to the death of the deceased, or that he aided another offender who did an act (or acts) that substantially contributed to the death of the deceased, in the way I have described.
Although those acts were committed on 31 October 2019, the offender is deemed to have killed the deceased on 29 November 2019, when she died. The offence of murder was complete, and therefore the offender became criminally responsible for that offence, on that date, and he was charged and convicted accordingly. By that date, he was 18 years of age. Therefore, he must be sentenced for the murder offence as an adult, even though he will be sentenced as a juvenile for the other offences committed by him on 31 October 2019.
Statutory provisions
Section 279 of the Criminal Code provides, in respect of sentencing options for the offence of murder:
(4)A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless —
(a)that sentence would be clearly unjust given the circumstances of the offence and the person; and
(b)the person is unlikely to be a threat to the safety of the community when released from imprisonment,
in which case, subject to subsection (5A), the person is liable to imprisonment for 20 years.
(5A)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender, if it does not impose a term of life imprisonment must, notwithstanding any other written law, impose a term of imprisonment of at least 15 years.
(5)A child who is guilty of murder is liable to either —
(a)life imprisonment; or
(b)detention in a place determined from time to time by the Governor or under another written law until released by order of the Governor.
(6A)If the offence is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary and the court sentences the offender under subsection (5)(a) but does not impose a term of life imprisonment, it —
(a) must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either —
(i)a term of imprisonment of at least 3 years; or
(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,
as the court thinks fit; and
(b)must not suspend any term of imprisonment imposed; and
(c)must record a conviction against the offender.
'Adult offender', for the purposes of s 279(5A), is defined in s 1(1) of the Criminal Code to mean: 'with respect to a person convicted of an offence, a person who had reached 18 years of age when the offence was committed'. 'Juvenile offender', for the purposes of s 279(6A), is defined in s 1(1) to mean: 'with respect to a person convicted of an offence, a person who had reached 16 but not 18 years of age when the offence was committed'.
Section 279(6A) does not apply in this case. It applies where 'the court sentences the offender under subsection (5)(a)' of s 279, which sets out the penalty for a 'child who is guilty of murder'. The offender in the present case is 'a person, other than a child, who is guilty of murder', so that s 279(4) applies. That is so whether the description 'other than a child' is operative at the time an offender becomes criminally responsible for the offence of murder (that is, at the time the deceased died) or at the time the offender is found guilty of, or pleads guilty to, the offence. In the Criminal Code, the term 'child' means, relevantly, any boy or girl under the age of 18 years.[4] The offender in this case was not a child either at the time he became criminally responsible for the murder of Ms Feige, or at the time he was found guilty of the offence.
[4] Criminal Code s 1(1).
Section 90 of the Sentencing Act provides:
90.Life imprisonment for murder, imposing
(1) A court that sentences an offender to life imprisonment for murder must either —
(a) set a minimum period of —
(i) at least 15 years, if the offence is committed by an adult offender (within the meaning given in The Criminal Code section 1(1)) in the course of conduct that constitutes an aggravated home burglary (within the meaning given in that section); or
(ii) at least 10 years, in any other case,
that the offender must serve before being eligible for release on parole; or
(b) order that the offender must never be released.
For the purposes of sentencing the offender for the offence of murder, it will be necessary for me to determine whether the requirements of s 279(4)(a) and (b) are met in the circumstances of this case, so as to justify a departure from the presumptive sentence of life imprisonment.[5] However, irrespective of whether I impose life imprisonment or a fixed term, it is necessary to determine whether the mandatory sentencing provisions of s 90(1)(a)(i) of the Sentencing Act or s 279(5A) of the Criminal Code apply. It will be seen that, even if I do not impose life imprisonment, I would be required to impose a fixed term of at least 15 years if s 279(5A) of the Criminal Code applies. If that term were imposed and the offender was made eligible to be considered for parole, he would be required to serve a minimum non-parole period of 13 years' imprisonment.[6]
[5] Austic v The State of Western Australia [2010] WASCA 110 [169]; Mikhail v The State of Western Australia [2012] WASCA 200 [16].
[6] Sentencing Act ss 89 and 93(1)(b).
The issue is whether the offender's status as an adult offender for the purposes of the mandatory sentencing provisions is to be determined as at the time he did (or aided) the acts that resulted in the deceased's head injuries, which later substantially contributed to her death, or at the time that he became criminally responsible for killing the deceased, that is, when she died. It is an issue of statutory construction.
Interpretation of relevant statutory provisions
The principles of statutory construction are well settled.[7] As the Court of Appeal said in The State of Western Australia v Williams:[8]
Statutory construction involves attribution of meaning to statutory text. The Court's task in that regard must begin and end with the statutory text as a whole, considered in its context, including its objectively discerned statutory purpose.
[7] The State of Western Australia v Williams [2022] WASCA 105 (Williams) [40].
[8] Williams [40], referring to Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] - [23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
Further, s 18 of the Interpretation Act provides:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object
In Project Blue Sky Inc v Australian Broadcasting Authority[9] the plurality noted that '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.'[10] Their Honours went on (citations omitted):[11]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[9] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky).
[10] Project Blue Sky [69] (McHugh, Gummow, Kirby and Hayne JJ).
[11] Project Blue Sky [70] (McHugh, Gummow, Kirby and Hayne JJ).
Therefore, it is relevant to consider whether particular terms or phrases in a provision under consideration have been construed previously in the context of other provisions of the same statute.
The question of whether either s 90(1)(a)(i) of the Sentencing Act or s 279(5A) of the Criminal Code applies to the offender's case depends on the meaning of the phrase: 'if the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary'. That meaning is affected by the definition of 'adult offender', referred to above, which fixes the relevant time for determining whether the person is an 'adult offender' as 'when the offence was committed'. The question is whether the offender had reached 18 years of age at that time.
The parties were not able to identify, and I have not found, any authority that deals with the issue that has arisen in this case concerning the meaning of the phrases 'if the offence is committed' in the mandatory sentencing provisions and 'when the offence was committed' in the definition of 'adult offender'. That is not surprising, as the circumstances of this case are unusual. However, the phrases under consideration are similar to the phrase 'when an offence is committed' in s 7 of the Criminal Code, which provides:
7. Principal offenders
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say —
(a)Every person who actually does the act or makes the omission which constitutes the offence;
Section 2 of the Criminal Code defines what is meant by 'offence':
An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.
Section 1(1) of the Criminal Code provides that the term 'liable', used alone, means 'liable on conviction upon indictment'.
In O'Dea v Western Australia [2022] HCA 24 (O'Dea), both the majority and minority judgments considered the meaning of 'offence' in s 7 of the Criminal Code in the context of the phrase 'when an offence is committed', and in the context of s 7(a). Both judgments referred to the High Court's decisions in Pickett v Western Australia [2020] HCA 20; (2020) 270 CLR 323 (Pickett) and R v Barlow [1997] HCA 19; (1997) 188 CLR 1 (Barlow). O'Dea was concerned with whether s 7(a) incorporated the common law concept of 'derivative liability', whereby two or more offenders could be held to be criminally responsible for an offence as principal offenders on the basis that the offence was constituted by a combination of their acts, even if the acts of any one of the individual offenders would not constitute the offence. Having discussed the historical origins of the provisions of s 7, and having noted that the common law concepts of derivative liability were not precisely transplanted into s 7, the majority in O'Dea went on to say, relevantly for present purposes (footnotes omitted):[12]
Nevertheless, there remained in s 7 the important requirement of the commission of an offence either by the principal offender (s 7(a)) or by other persons (ss 7(b), 7(c) and 7(d)). The opening words of s 7 are: "When an offence is committed". Section 2 defines an "offence" as "[a]n act or omission which renders the person doing the act or making the omission liable to punishment". By their terms, ss 7(b), 7(c) and 7(d) therefore all require that another person has done an act that renders that person liable to punishment, subject to excuses. Section 7(a) requires that the accused person "actually does the act" which constitutes the offence.
In Pickett, Mr Slater died as a result of a stab wound to his chest which was inflicted during an attack by a group of eight male persons that included the five appellants. The person who "actually" inflicted the stab wound that caused Mr Slater's death was either Mr Pickett or a juvenile, PM. PM was not proved by the prosecution to have had the capacity to know that he ought not to do the act. Hence, PM was excused from criminal responsibility under s 29 of the Criminal Code. The question before this Court was whether the appellants, including Mr Pickett, could be criminally responsible under s 7(b), s 7(c) or s 8 of the Criminal Code, even though the person who may have actually inflicted the stab wound was not criminally responsible.
This Court unanimously held that, despite PM's lack of criminal responsibility, the appellants were capable of being criminally responsible under s 7(b), s 7(c) or s 8 of the Criminal Code. In respect of s 7, there were several important steps to the reasoning of Kiefel CJ, Bell, Keane and Gordon JJ:
(1) The reference to an "offence" in s 7 is to "the conduct element of an offence (being an act or omission)" ((2020) 270 CLR 323 at 341 [37]. See also at 342 [40], 343 [44], 345-348 [51]-[56]. See further R v Barlow (1997) 188 CLR 1 at 9 per Brennan CJ, Dawson and Toohey JJ.)
[12] O'Dea [62] - [64] (Gordon, Edelman and Steward JJ).
The minority said, relevantly (footnotes omitted):[13]
The Court of Appeal in Pickett had read ''offence'' as if it referred to an act which of itself renders the person liable to punishment. As the majority of this Court explained, Barlow had made clear that the definition of "offence" refers "not to the concatenation of elements and circumstances that establish liability to punishment, but to the conduct element of an offence (being an act or omission), which, if combined with other circumstances, renders the offender liable to punishment". The "act" that constituted the offence for the purposes of ss 7 and 8 was the physical act of stabbing the deceased. The stabbing constituted the conduct element of the offence of murder. It followed that an offence within the meaning of ss 7 and 8 may be committed even though the person who did the act that constitutes the offence is not criminally responsible because of the provisions of Ch V.
[13] O'Dea [21] (Kiefel CJ and Gageler J).
So, on both analyses, 'offence' in s 7 was read narrowly to be a reference to the conduct element of an offence, being an act or omission, which, if combined with other circumstances, renders the offender liable to punishment. 'Offence', in the phrase 'when an offence is committed', is not a reference to 'the concatenation of elements and circumstances that establish liability to punishment'. In the context of a case involving a stabbing that caused an injury resulting in the victim's death (being Pickett), the relevant act constituting the offence, for the purposes of s 7, may be regarded to be the inflicting of the stab wound that causes the victim's death (the majority description in O'Dea, as quoted above) or 'the physical act of stabbing [the victim]' (the minority description in O'Dea, as quoted above). On either view, the victim's death would be regarded as one of the other circumstances which, in combination with the conduct element (that is, the physical act of the offender), would render the offender liable to punishment. It is one of the elements of the offence of murder, but it is not the conduct element for the purposes of s 7.
In my opinion, the High Court's construction of the phrase 'when an offence is committed' in s 7 of the Criminal Code affects the construction of the phrase 'if an offence is committed' in s 90(1)(a)(i) of the Sentencing Act and s 279(5A) of the Criminal Code, because both phrases are concerned with the concept of an offence being committed. If the word 'offence' in the mandatory sentencing provisions is given the same meaning attributed to that word in Barlow, Pickett and O'Dea, in the context of s 7, then the phrase must be interpreted as referring to the conduct element of the offence; that is, the physical act (and, where applicable, a relevant accompanying state of mind) constituting the offence.
The State submitted that the interpretation in Barlow, Pickett and O'Dea was not determinative of the meaning of the mandatory sentencing provisions in this case, because those cases were concerned with provisions attributing criminal responsibility prior to a finding of guilt, whereas the mandatory sentencing provisions apply after a finding of guilt, and 'offence' in the latter context should be interpreted as referring to the offence of which the person has been convicted, which includes the element of causing death. Accordingly, it was submitted, the question is whether the offender was an adult offender at the time he became criminally responsible for the offence of murder, that is, at the time of the deceased's death.
In my opinion, the difference in purpose between s 7 and the mandatory sentencing provisions does not justify the attribution of different meanings to what is essentially the same language. The context for construing the mandatory sentencing provisions consists of more than simply the occasion on which the provisions come to be applied, that is, after the offender has been convicted. The context includes the fact that the phrase 'if the offence is committed' (emphasis added) speaks to the time at which the offence is committed, and the phrase 'in the course of conduct' also speaks to a specific point in time or period. It is the temporal connection between the conduct that constitutes an aggravated home burglary, at that specific point in time or period, and the commission of the offence, that creates the circumstance requiring the imposition of a mandatory minimum sentence. In other words, the phrase 'in the course of conduct that constitutes an aggravated home burglary' affects the construction of the phrase 'if the offence is committed'.
In a case where the offence is not 'committed' until weeks after the conduct element was complete, as in this case, to construe the phrase 'if the offence is committed' so as to encompass the concatenation of elements and circumstances that have led to conviction would result in a disconnection between the aggravating conduct and the commission of the offence.
Further, the context in which the mandatory sentencing provisions are to be construed includes the drawing of a distinction between the mandatory sentence for an adult offender and the mandatory sentence for a juvenile offender. The policy reasons for distinguishing between adult offenders and juvenile offenders are self-evident, reflecting the difference recognised by the law between adult offenders and juvenile offenders in respect of moral culpability and the manner in which they should be dealt with for the same offence. The distinction stems, at least in part, from recognition by society that, generally, juvenile offenders do not have the same level of maturity or experience as adult offenders, and, therefore, should not be treated in the same way as adults in the sentencing process.
Of course, the law draws a distinct line, at the attainment of the age of 18 years, which, once crossed, renders the offender liable to the severe mandatory sentencing provisions applicable to an adult offender. In reality, one would not expect any difference in an offender's maturity and experience when they turn 18 years of age, compared to when they were one day younger, but the law must be applied according to its prescriptions. The question is, where an offence is constituted by conduct and a consequence which are separated in time, at what stage do the prescriptions in the mandatory sentencing provisions apply?
The State properly acknowledged that the distinction between adult and juvenile offenders recognised by the law, in respect of moral culpability, relates to the offender's conduct and any state of mind accompanying the conduct. The consequences go to criminal responsibility and, thus, liability to punishment, rather than the degree of moral culpability.
In my opinion, that reinforces the applicability of the statutory construction in Barlow, Pickett and O'Dea to the phrase 'if the offence is committed' in the mandatory sentencing provisions under consideration in this case. Section 90(1)(a)(i) of the Sentencing Act and s 279(5A) of the Criminal Code are concerned with the circumstances in which the conduct element of the offence of murder, that is, the offender's act (or acts) constituting the offence, occurred. In each case, the provision applies if the act (or acts) occurred in the course of conduct that constituted an aggravated home burglary. The question of whether the offender was an adult offender for the purposes of those provisions must be determined according to whether he had reached the age of 18 years at the time of doing the act (or acts) constituting the conduct element of the offence. In my opinion, that is the ordinary meaning conveyed by the text of both provisions, having regard to the context of the provisions and the purpose or object underlying the provisions.[14]
[14] See Interpretation Act s 19(3)(a).
Further, in my opinion, the ordinary meaning conveyed by the text in both provisions, having regard to the context and purpose of the provisions, is that the qualification of 'adult offender' applies to both requirements that must be met to activate the mandatory minimum term, namely (1) that an offence is committed and (2) that the offender engages in a course of conduct that constitutes an aggravated home burglary. In other words, the offender must be an adult offender at the time of the aggravating course of conduct, as well as at the time of the commission of the offence. Ordinarily there would be no separation in time between those events, and it can be safely assumed that Parliament did not turn its mind to the unusual circumstances of this case. However, a construction of the provisions that requires the offender to have been an adult offender at the time that he engaged in the course of conduct that constitutes an aggravated home burglary is consistent with the policy reasons for distinguishing between adult offenders and juvenile offenders in the mandatory sentencing provisions.
In my opinion, it could not reasonably have been intended by the legislature that the distinction between s 279(5A) and s 279(6A), for instance, would depend on the happenstance of when the offence of murder is complete, rather than on whether the offender is an adult or juvenile at the time the acts constituting the offence are done 'in the course of conduct that constitutes an aggravated home burglary'.
Section 19(1) of the Interpretation Act allows for consideration of extrinsic materials that are 'capable of assisting in the ascertainment of the meaning of [a] provision' -
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b)to determine the meaning of the provision when —
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
The materials that may be considered include any explanatory memorandum in respect of the Bill that contained the provision, and the second reading speech made by a Minister in Parliament in respect of the Bill containing the provision.[15]
[15] Interpretation Act s 19(2)(e) and (f).
The mandatory sentencing provisions under consideration were introduced by the Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014. Neither the explanatory memorandum, nor the second reading speeches for that Bill addressed the question of interpretation I am required to resolve.[16] Arguably, the second reading speeches (which were identical in the Legislative Assembly and the Legislative Council) are capable of assisting in the ascertainment of the meaning of the relevant provisions indirectly.
[16] Explanatory memorandum - Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014; Hansard, (Legislative Assembly) 12 March 2014 p 1055b - 1058a, (Legislative Council) 24 March 2015, p 1917e - 1920a.
In relation to the specific provisions with which I am concerned, the Minister simply summarised the provisions in the Legislative Council as follows:[17]
Dealing with each in turn, firstly, the bill stipulates in the Criminal Code new mandatory minimum sentences for serious offences of physical or sexual violence committed in the course of an aggravated home burglary. These serious offences include murder, manslaughter, attempted unlawful killing, aggravated grievous bodily harm, aggravated sexual penetration without consent and sexual offences against a child. For an adult offender, the bill provides for a minimum sentence of 75 per cent of the statutory maximum term of imprisonment for each of those serious offences. In the case of offences carrying a maximum, but not mandatory, term of life imprisonment, the bill prescribes a minimum sentence of 15 years. For a juvenile offender, which is a person between 16 and 18 years of age, the bill provides for a minimum sentence of three years' imprisonment or detention for each of those serious offences. The bill does not impose any minimum sentences on offenders under 16 years of age.
The bill also amends the Sentencing Act 1995 to provide that adult offenders who commit murder in the course of an aggravated home burglary and who are sentenced to life imprisonment will serve a minimum non-parole period of 15 years' imprisonment.
[17] Hansard, 24 March 2015, p 1917e - 1920a [2] (Hon Michael Mischin (Attorney General)).
However, the Minister had provided context for the amendments in his introductory remarks, which included the following relevant comments (italics added):[18]
People regard their home as their sanctuary and look to it to be a place of security and safety for themselves and their families and loved ones … Those who are present at home when their home is invaded are at risk of assault and harm, even sexual assault, and of being maimed or killed. Fortunately, such instances are uncommon. Nevertheless, the community views with disquiet the frequency of home burglaries and is understandably alarmed when offences of violence occur in the course of those burglaries. Citizens are also concerned that those who perpetrate such outrages appear not to be punished with sufficient severity by the courts.
[18] Hansard, 24 March 2015, p 1917e - 1920a [1] (Hon Michael Mischin (Attorney General)).
In my opinion, while those comments were not related by the Minister to any specific provision in the Bill, they nevertheless expressed a rationale for the mandatory sentencing provisions for the offence of murder. The concern underpinning those provisions was in relation to 'offences of violence [that] occur in the course of … burglaries'. In my opinion, while the second reading speech in this case has very limited capacity to assist in the ascertainment of the meaning of the mandatory sentencing provisions, the comments to which I have referred tend to support the view that the offender's culpability, for the purposes of activating the mandatory sentencing provisions, is inextricably tied to his conduct at the time of the burglary. The question of whether the offender is to be dealt with as an adult offender for the purpose of those provisions is to be determined according to his age at the time of the course of conduct that constituted the aggravated home burglary.
The course of conduct that constituted the aggravated home burglary in this case occurred on 31 October 2019. At that time, the offender was a juvenile offender. It follows from the proper construction of the provisions, which I have found, that s 90(1)(a)(i) of the Sentencing Act and s 279(5A) of the Criminal Code do not apply to the offender.
However, for reasons stated at [19] above, nor does s 279(6A) apply to him.
Conclusion
For the reasons I have given, none of the mandatory sentencing provisions in respect of murder in s 90(1)(a)(i) of the Sentencing Act, s 279(5A) of the Criminal Code or s 279(6A) of the Criminal Code apply to the offender.
As I explained above, the offender comes to be sentenced under s 279(4) of the Criminal Code, which requires that he be sentenced to life imprisonment unless the requirements of s 279(4)(a) and (b) are met, in which case he will be liable to a maximum term of imprisonment of 20 years. The fact that the offender was a juvenile offender at the time of doing the act that constitutes the offence will be a relevant consideration in determining whether the requirements of s 279(4)(a) and (b) are met. If life imprisonment is imposed, I will be required to impose a minimum non-parole term of at least 10 years, without any other statutory constraint on the length of that term. If life imprisonment is not imposed, there will be no mandatory minimum term that must be imposed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Associate to the Honourable Justice Fiannaca
14 OCTOBER 2022
ADDENDUM:
These reasons were published after publication of my sentencing remarks in The State of Western Australia v TAB [2022] WASCSR 32 (the sentencing remarks). As the sentencing remarks will remain published for a limited period, it is appropriate to add to these reasons the following observations, which reflect the approach taken in the sentencing remarks, to make clear the scope of this decision.
This decision is concerned only with whether the mandatory sentencing provisions applied in this case. It does not affect the relevance, when sentencing for murder, of the fact that the offender's act constituting the offence of murder occurred in the course of committing an aggravated home burglary. Accordingly, at [237] of the sentencing remarks, I noted:
I have had regard to the need to impose a sentence that will deter violent offending in the course of aggravated burglaries, which Parliament has clearly identified as a particular concern in the community. Even though I have held that the mandatory sentencing provisions do not apply to you, the concern that resulted in those provisions being enacted remains a matter of significant importance.
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