Australia:
Defendant criminal sentence hangs on the court interpretation of a comma – which case won?
16 August 2017
Stacks Law Firm
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The Facts
Defendant pleads guilty to criminal offence
In a case decided in 2016 by the United States Supreme Court, a
defendant had pleaded guilty to the offence of possessing child
pornography. The defendant had a prior conviction for the sexual
abuse of his 53-year-old girlfriend, but no prior convictions for
sexual abuse involving a minor.
As he had pleaded guilty, the only issue before the court was
the sentence to be applied. The applicable sentencing guidelines
suggested a term of imprisonment of between six and a little over
eight years.
Should the previous conviction give rise to a mandatory
ten-year sentence?
However, the relevant statute also prescribed that a ten-year
mandatory sentence must be imposed where the offender had a prior
conviction "relating to aggravated sexual abuse, sexual abuse,
or abusive sexual conduct involving a minor..."
It was up to the court to interpret those words and decide how
they applied in this case. That is, did the defendant's prior
conviction (which had not involved a minor) mean that a mandatory
ten-year sentence had to be imposed?
case a
- The case for the prosecution |
case b
- The case for the defence |
- When drafting the words, the legislature deliberately used
three phrases, separated by commas, to describe three separate
concepts: first, aggravated sexual abuse; second, sexual abuse; and
third, abusive sexual conduct involving a minor.
- This means that ANY prior conviction in respect of the first
two concepts (aggravated sexual abuse or sexual abuse) – not
just convictions involving minors – must result in the
mandatory ten-year sentence.
- The defendant has a prior conviction for sexual abuse.
- Therefore, the court must impose the mandatory ten-year
sentence.
|
- The words "involving a minor" were intended to apply
to all three concepts in the list, not just the final one. This is
how the English language works, in speech and writing alike.
- The legislature intended that a mandatory sentence should apply
ONLY where a defendant's prior conviction involved the abuse of
a minor.
- The defendant's previous conviction for sexual abuse had
nothing to do with a minor.
- As the statute is ambiguous and this is a criminal case, the
court should rule in the defendant's favour and not impose the
longer ten-year sentence.
|
So, which case won?
Cast your judgment below to find out
Vote case A – The case for the prosecution
Vote case B – The case for the defence
Geoff Baldwin
Criminal law
Stacks Champion
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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