Stannard v DPP [2010] VSCA 165

1. The trial judge erred in refusing leave to withdraw a plea of guilty.
2. The trial judge erred in his ruling that consent was not available as a defence in the present proceeding.
3. The trial judge erred in holding that [t]he accused was 'more than 2 years older' than the complainant a[t] the time of the alleged commission of the offences.
4. The trial judge erred in the interpretation of the provisions of subsection 45(4)(b).

2 On 6 August 2009 the applicant was charged with a number of offences in relation to the alleged sexual penetration of a child under the age of 16 years. The applicant pleaded guilty at the committal mention stage. He was then arraigned and pleaded guilty to five counts of the offence of sexual penetration of a child under 16 years. The matter was listed for a plea hearing in the Mildura circuit of the County Court commencing 23 November 2009. He was then granted an adjournment to enable an application for a nolle prosequi to be made. This application was filed with the Director of Public Prosecutions in mid December and was subsequently rejected.

3 The applicant then made the application the subject of the present appeal. He sought to change his pleas, arguing that he had acted on the basis of inaccurate advice supplied by his previous legal counsel that the defence of consent was not available. Critical to this submission is the interpretation of s 45(4)(b) of the Crimes Act 1958 which provides:

(4) Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence the child was aged 10 or older and -

...

(b) the accused was not more than 2 years older than the child;

...

4 The applicant was born on 18 July 1990 and the child on 1 July 1993. Notwithstanding that the final two counts alleged a date of offences which were after the applicant's 18th birthday, and the first count alleged a date when the child was still 14 years of age, the trial judge was asked to and did deal with the application on the basis that each of the sexual acts the subject of a count occurred between 1 July 2008 and 18 July 2008 and before 18 July 2008. Therefore, on the version of the facts most favourable to the applicant, each of the charged acts occurred while the applicant was 17 years of age and the child was 15 years of age. There is a difference of some two years, 11 months and 17 days between their respective ages.

5 The applicant submitted that he was not, within the meaning of the section, 'more than two years older' than the child. The applicant advanced a construction based upon whole years of age rather than years and months. On this view the defence of consent would be open on the basis that only two whole years separated the respective ages of the applicant and the child, one being then aged 15 and the other 17.

6 This interpretation was rejected by the trial judge who found that it was inconsistent with the ordinary and natural meaning of the words. His Honour further observed that such a construction would be inconsistent with the objects and purpose of the legislation, which he described in the following terms:

That purpose ordinarily described is to protect the young from sexual exploitation, but also in given circumstances to accommodate the situation in which there is some similarity in age between the complainant and the alleged offender. That offender would necessarily also be relatively young. Parliament has selected a period of difference in age of two years to meet those objects. Acceptance of the defence argument here would potentially or effectively increase that period by 50 per cent.

7 It followed that in his Honour's view no defence of consent would have been available to the applicant in the event of a trial, save that there was the factual dispute as to when the offences the subject of the first and the last two counts occurred. The applicant indicated that the issue of consent was the sole basis upon which the applicant intended to contest the counts on the presentment. Accordingly, his Honour ruled that it would not be in the interests of justice to permit the applicant to withdraw his pleas of guilty and refused the application. On appeal it was conceded by Mr Tehan QC, who appeared for the applicant with Mr Dickenson, that if this Court interpreted s 45(4)(b) of the Crimes Act in the same manner as the trial judge there would be no utility in persisting with his application to withdraw his guilty pleas. Accordingly, the outcome of the appeal turned upon the narrow question of the construction of the term 'not more than two years older' in s 45(4)(b).

8 The applicant relied upon a number of arguments in support of his preferred construction. Reference was made to what was said to be the purpose of the provision. He also relied upon other provisions in the Act, all of which defined any relevant age in terms of whole years. Hence it was submitted that when the Act is read in its entirety the phrase means that the offender remains no more than two years older than the child until he becomes three years older than the child, because the person's age is defined or calculated as age at last birthday.

9 Central to the applicant's submission was what is said to be the ordinary use of language to describe age, as might be used by youthful persons in a social setting. For example, it was submitted, that if the child and the applicant were hypothetically asked their age, they might have replied 15 and 17. This consideration was said to illuminate the proper interpretation of the scope of s 45(4). Such an approach was said to be consistent with the purpose of the legislation, which it was said, was directed towards providing an accommodation for consensual sex between young persons. It was submitted that the words of s 45(4) should be understood in the context in which such conduct would occur. In such circumstances people would be likely to speak in terms of their calendar age and not with precision about days or months over that age. So it was said, the purpose of the provision would be better served by the broad interpretation favoured by the applicant.

10 In support of his application counsel referred the Court to the decision in Blanksy v Barnes.[1] There, Hampel J considered a provision which concerned an offence for driving whilst under the influence of alcohol. The provision prescribed certain penalties where the driver's blood alcohol content exceeded an amount measured as 0.10 per 100 millilitres. A reading thus of 0.101 per 100 millilitres was given, which exceeded the prescribed amount by 0.01 per 100 millilitres. The judge held that the legislation was framed around readings being to two decimal places and that the blood alcohol content did not exceed 0.10 within the meaning of the statute. The applicant here sought to draw an analogy with the decision, arguing that the Crimes Act spoke in terms of years, not months. In my view we are not much assisted by that decision, which is readily distinguishable as it turned on the particular terms of the relevant provisions.

11 The applicant sought to adopt a contextual reading by reference to what was said to be some 57 references to ages and years within other provisions of the Crimes Act. Thus it was said that the following terms and their frequency were to be found within the Act. 'Age of X years' occurring 33 times; 'Aged X years' occurring 18 times; 'X years of age' occurring twice, and 'X year old' occurring four times. From this it was submitted that as none of those provisions talk of years and months but rather in terms of years, Parliament's intention was manifest that years be only complete years and not part years.

12 Finally, it was said that the inclusion in the provision of the words 'at the time of the alleged offence' would be redundant if the defence simply required the calculation of difference between birth dates. That redundancy arises, it was said, because the difference between birth dates will, of course, remain the same whenever the time is calculated. This, it was said, militated in favour of the applicant's construction as the ages of the child and the alleged offender might change over the course of a calendar year. For example the child might be aged 15 and the offender 17 in January, but following the birthday of the offender in February their respective ages would then be 15 and 18; or conversely, if the child's birthday was in February their respective ages would then be 16 and 17.

13 Thus the applicant contended that the term means that until an alleged offender is three entire years older than the child the defence under s 45(4)(b) remains available.

Conclusion - construction of s 45(4)

14 I turn first to the applicant's submission that the meaning of the words must be understood in the context in which the defence might be raised. This was premised upon the assumption that young persons might only conceive of their ages in terms of whole years. Such a consideration would not override the plain meaning of the provision (understood in its context and in light of its purpose). The sub-section is not concerned with the belief of the putative offender. Parliament has sought to limit the defence of consent to circumstances where, as a matter of fact, the difference in age between the alleged offender and child does not exceed a specified period.

15 The applicant's submission that the reference to 'years' throughout the Act manifests an intention by Parliament to measure time, for the purposes of the Act, only by reference to whole years (rather than months or days) is also untenable in light of s 44(6)(c) of the Interpretation of Legislation Act 1984 which provides:

(6) In an Act or subordinate instrument, unless the contrary intention expressly appears -

(b) A reference without qualification to a year shall be construed as a reference to a period of twelve months;

16 The applicant suggests that there was a qualification to the reference to 'two years' as it was only a reference to age, but I do not accept that such a qualification or any express contrary intention is present. The applicant's construction is, in my view, inconsistent with the construction required by s 44.

17 Even if the reference to a period of a 'year' was not required to be so construed by the Interpretation of Legislation Act, to attribute to Parliament an intention that time only be measured in whole years for the purposes of the Act would lead to quite absurd results. Could it be said, for example, that the maximum penalty for an offence under the Crimes Act would not be exceeded by a sentence which was less than one year above the maximum? The present case itself illustrates the absurd and unintended consequences that would follow if the applicant's construction were correct. Count 1 as it presently stands alleges that the offence occurred between 30 June and 10 July 2008. On the applicant's interpretation, the child being only 14 on 30 June 2008, there was therefore three whole years difference between the child and the applicant. The child turned 15 on 1 July and therefore there was then according to the applicant no more than two years' difference between them. Counts 4 and 5 allege between date offences in August 2008, so that there was again three whole years difference from 18 July when the applicant turned 18.

18 The use of phrases such as '16 years old' in s 48 of the Crimes Act and the similar expressions in other provisions to which I have referred does not, in my view, support the applicant's construction. These references are to a person's age, not to a period of years as the means by which a particular period of time is to be specified. The references to age are, both as a matter of ordinary usage of the term and by reference to s 44 of the Interpretation of Legislation Act, the age for 12 months from their relevant birthday.

19 The applicant argued that the phrase 'at the time of the alleged offence' would be redundant were it not held that the period of two years was to be viewed as a period of time which changed with the age in years of the relevant persons. That was a matter which apparently troubled the learned trial judge. The relevant part provides that the offence will not apply to sub-s (1) 'unless at the time of the alleged offence the child was aged ten or older'. That phrase, appearing at the commencement of s 45(4), relates to the first condition of the offence, namely that the child may not be aged less than ten years, and also applied to the further element of the defence in sub-s (a). Plainly the phrase would not become redundant if the applicant's construction was not adopted. It was necessary that Parliament stipulate that each of the references to age in the section were to be determined as at the date of the alleged offence. That is ordinarily the point of time at which questions of criminal responsibility fall to be assessed.

20 Ultimately, the applicant's submission was premised upon a view of the purpose of the provision which was that it be broadly construed for the protection of youthful persons engaged in sexual conduct. Allied to this was the submission that the Court should apply a canon of statutory interpretation that any ambiguity of a penal statute should be resolved in favour of the liberty of the subject.

21 I am not persuaded that the applicant's identified purpose is correct. There is nothing to suggest that Parliament intended a defence of consent was to be for the benefit of those more than two years older than a child under the age of 16. Section 45(4) was introduced in 1991 following a recommendation of the Law Reform Commission of Victoria in Report 18 on Sexual Offences Against Children in which it said:

Consent of a child over 10 and under 16 should continue to be a defence if there is a two years or less age difference between the child and the other person.

22 In the Second Reading Speech the Minister referred to:

Legally effective consent if there is only a small age difference between the child and the other person two years in the case of a child aged ten to 15.

23 The purpose of the provision in combination with the relevant offence seems to have been, as was correctly identified by the trial judge, to protect the young from sexual exploitation whilst in limited circumstances accommodating the situation where there is some similarity between the ages of the child and the alleged offender. On the plain words of the statute, Parliament has selected a period of two years to meet this purpose. The intention of Parliament would be frustrated by the applicant's preferred construction which would, on the facts of the present case, extend the relevant period of time by an amount of nearly 50 per cent. In any event, what is said to be the purpose of a provision must yield where it is inconsistent with the otherwise plain meaning of the provision. As Dawson J observed in Mills v Meeking[2]:

If the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman.

24 The phrase 'more than two years older' in s 45(4)(b) is to be construed according to its ordinary and natural meaning. No ambiguity attends their meaning. Neither their context nor purpose calls for a construction which departs from that meaning. The applicant's preferred construction of s 45(4) should be rejected.

25 Consent is not a defence where at the time of the offence the putative offender's age exceeds the child's by anything more than two years, that is to say 24 months. The applicant's preferred construction would require the Act to be read so that a person two years and 11 months older than the child is not more than two years older than the child. This construction would do violence to the words of the statute. The trial judge's construction of the provision should be upheld.

26 It remains to make two brief comments in relation to the certification of this application by the trial judge. The certificate was granted pursuant to the procedure prescribed by s 295 of the Criminal Procedure Act 2009. The power to grant a certificate attaches to 'an interlocutory decision' which is defined as including a decision whether made 'before or during a trial'.[3] The present case concerned a somewhat uncommon circumstance, in that it concerned the refusal by a trial judge to allow the applicant to withdraw his guilty pleas.

27 The provision allowing for certification of an interlocutory appeal requires that the trial judge undertake some consideration of the merits of the proposed appeal. As stated in McDonald v Director of Public Prosecutions[4] a certificate should not be granted unless the trial judge considers that his or her decision is attended by sufficient doubt to warrant an expedited review of the decision.

28 The decision to certify must also be considered in the context of the purpose of the provision. This is explained in the Explanatory Memorandum as follows:

The requirement for certification is designed to reflect the desired balance between hearing appeals that are genuinely likely to reduce overall delays and avoiding the fragmentation of individual trials without good reason.

29 Primarily, the interlocutory appeals process is designed to reduce the number of retrials (and the overall pressure on the justice system) by allowing a contentious interlocutory decision to be considered by the Court of Appeal prior to the commencement or conclusion of the trial. Before granting a certificate, a trial judge should consider whether the question certified is capable of serving that overriding purpose. Accordingly, the value judgment to which reference is made in McDonald and which the trial judge must make as to whether the decision is 'of sufficient importance to the trial to justify it being determined on an interlocutory appeal' must take into account the extent to which court time and resources would be wasted or rendered unnecessary if the decision proved erroneous and was not immediately appealed.

30 In the present case the refusal to certify would have had the consequence that the proceedings would have proceeded to a plea hearing on sentence. Hence the only proceeding that might have been rendered unnecessary was a plea in

mitigation. Following sentencing, the applicant may have proceeded directly to an appeal against conviction and sought to challenge the ruling on the ground that it would constitute a miscarriage of justice if the plea were allowed to stand. This consideration was relevant to a determination whether an interlocutory appeal was sufficiently important to justify the grant of a certificate. The trial judge evidently entertained some reservation about the correctness of his decision, but that doubt in my opinion was unjustified. As there was to be no trial which would be put at risk as a consequence of his Honour's ruling, it was not in any event a decision that warranted the granting of a certificate for an interlocutory appeal.

31 The application for leave to appeal should therefore be refused.

34 The Order of the Court will be the application for leave to appeal is refused.

[1] Blanksy v Barnes [1998] 2 VR 164.

[2] Mills v Meeking [1990] HCA 6; (1990) 91 ALR 16.

[3] See definition on s 3 Criminal Procedure Act 2008.

[4] McDonald v DPP [2010] VSCA 45.