Menu
We remain open and continue to serve our communities during the COVID-19 pandemic. Click here for more info
Home › Which case won? › Defendant’s criminal sentence hangs on court’s interpretation of a comma – which case won?

Which case won?

Defendant’s criminal sentence hangs on court’s interpretation of a comma – which case won?
10 Aug | Which Case Won

Defendant’s criminal sentence hangs on court’s interpretation of a comma – which case won?

by Geoff Baldwin, Parramatta

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?

casea
The case for the prosecution
  • 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.
caseb
The case for the defence
  • 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
Case A Case B

Case A won. You were right!

How people voted
a44%
b56%

Expert commentary on the court's decision

Geoff BaldwinConsultant Lawyer
“The case illustrates the power of the humble comma. In the sentence ‘the burglar was tall, wearing shorts, and with long hair weighing about 80 kilos’, it is plain that it is the burglar, and not his hair, that was estimated to weigh 80 kilos. However, it’s not always as clear as this.”
Prosecution’s arguments prevail in three successive courts

The case, Lockhart v United States [2016], came first before a District Court, then on appeal before a Circuit Court, and finally, on further appeal, before the Supreme Court.

At each level the prosecution prevailed, and eventually the Supreme Court upheld the prosecution argument, that if the interpretation was “grammatically sensible”, it should stand.

Prosecution invokes “rule of the last antecedent”

In arguing that the mandatory ten year sentence should be applied, the prosecution followed the usual protocol applying to comma use.

That is, there are three phrases, separated by commas, which in the absence of other considerations should be read as describing three separate concepts: first, aggravated sexual abuse; second, sexual abuse; and third, abusive sexual conduct involving a minor.

The defendant, Mr Avondale Lockhart, had a conviction for sexual abuse, and thus it did not matter that a minor had not been involved.

The prosecution’s approach was to invoke the “rule of the last antecedent”, meaning that a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that immediately precedes it.

Black letter approach to interpreting the law

This is sometimes called the “black letter” approach, meaning an approach interpreting an Act by focusing on the specific words of the enactment, and rejecting speculation about whether the plain meaning of the words gives a result which might not have been intended by the legislature. It is a widespread approach, but arguably used more in the USA than in, say, Australia.

There was also an argument that it would be wrong to accept the defence argument and thus give Mr Lockhart a lighter sentence.

Defence counterargument hinges on “series modifier principle”

The defence countered with the “series modifier principle” (also referred to as the “series qualifier canon”), which means that a modifier at the end of a list normally applies to all items on the list.

As one of the two dissenting judges in this case pointed out, when several words are followed by a clause that can sensibly modify them all, it should be understood to do so.

What was the intention of the legislation?

The defence argued that the court should look beyond the grammar and syntax, to what the legislature intended. The offence in question was a child-related offence.

A mandatory sentence would be understandable if the words “involving a minor” qualified each of the three elements, ie aggravated sexual abuse and sexual abuse, as well as abusive sexual conduct.

However, there would appear to be little logic in imposing the mandatory sentence for a child-related offence because of a previous conviction unrelated in any way to a minor.

Repeat offences and mandatory sentencing

The surrounding argument was of course along the lines that the punishment should fit the crime. Whatever one may think of mandatory sentencing, it is at least understandable in the event of a repeat offence, given that the law, quite properly, treats sex offences against children differently from those against adults.

So, it was argued, the legislature cannot have intended that the heavier sentence should be triggered by a prior offence which did not involve a child.

Thus the defence argument was that, the rules of grammar and syntax notwithstanding, the legislature must have intended that the phrase “involving a minor” should qualify each of the three concepts, and not just the final one.

Defence unsuccessful in invoking “rule of lenity”

A further principle invoked by the defence was the so-called “rule of lenity”. That is, when there is genuine ambiguity in criminal statutes, that ambiguity should be resolved by ruling in the defendant’s favour – in this case, by giving Mr Lockhart a lesser sentence.

The defence was unsuccessful in this argument also.

Never underestimate the power of the humble comma

The case illustrates the power of the humble comma. The phrase “involving a minor” is, grammatically, a “dangling modifier” – a special sort of “dangling participle”. Usually the meaning is clear. For example, in the sentence “the burglar was tall, wearing shorts, and with long hair weighing about 80 kilos”, it is plain that it is the burglar, and not his hair, that is estimated to weigh 80 kilos.

However, it’s not always as clear as this and, if we are talking about legal documents, the consequences of the ambiguity can be made worse because one meaning suits the interests of one party but not the other, thus leading to argument, possibly costly legal fees and, in the worst cases, an outcome quite different from what was intended. In this case, Mr Lockhart incurred the heavier sentence.

Clarity in grammar and punctuation essential to good drafting

In the statute, the ambiguity could have been lessened by interposing a semi-colon after “conduct”; or removed altogether by different drafting. This shows that punctuation and grammar are often crucial where matters of importance are concerned, in the same way that coding is in computer programming. And of course, this applies to all manner of legal documents.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
Send case to a friend Get in touch with an expert Send me more cases
Have your say

Other cases

“The court has to listen to this secret recording, it proves I should get my fair share of the estate!” Which case won?
05 Apr 2021

“The court has to listen to this secret recording, it proves I should get my fair share of the estate!” Which case won?

A recent case in the NSW Supreme Court concerned the estate of a father with three adult
Read More
“I introduced the buyer to the property, so I should get the commission.” Which case won?
23 Mar 2021

“I introduced the buyer to the property, so I should get the commission.” Which case won?

Two property sellers owned a 55-acre property containing a macadamia plantation in the
Read More
“I was tricked into signing over my half of the family home, so I should be able to appeal the court order.” Which case won?
09 Mar 2021

“I was tricked into signing over my half of the family home, so I should be able to appeal the court order.” Which case won?

A husband and wife married in 1988. They had one child together, a daughter who is now an
Read More
Could a developer rescind off-the-plan contracts to cash in on a rising property market? Which case won?
23 Feb 2021

Could a developer rescind off-the-plan contracts to cash in on a rising property market? Which case won?

In 2014, the vendor and several purchasers entered into contracts for the sale of
Read More
Could a worker claim weekly compensation payments for a psychological injury that left him unable to work? Which case won?
08 Feb 2021

Could a worker claim weekly compensation payments for a psychological injury that left him unable to work? Which case won?

A worker was recruited by an employer following a history of successful employment with
Read More
Can a daughter make a family provision claim against the estate of her long-dead father, to be paid for out of the estate of her recently deceased stepmother? Which case won?
25 Jan 2021

Can a daughter make a family provision claim against the estate of her long-dead father, to be paid for out of the estate of her recently deceased stepmother? Which case won?

The deceased and his first wife had two children. The deceased’s first wife died in
Read More
If a tree branch fell and caused damage to a grave, was the council negligent for not maintaining the tree? Which case won?
12 Jan 2021

If a tree branch fell and caused damage to a grave, was the council negligent for not maintaining the tree? Which case won?

In June 2002, a man purchased three adjacent burial plots in a cemetery in suburban
Read More
Was the offender guilty of ongoing supply of a prohibited drug? Which case won?
15 Dec 2020

Was the offender guilty of ongoing supply of a prohibited drug? Which case won?

The police established a strike force to investigate the illegal supply of drugs in
Read More
Can a vendor terminate a contract for sale of land if the purchaser mistakenly pays the deposit to a cybercriminal? Which case won?
01 Dec 2020

Can a vendor terminate a contract for sale of land if the purchaser mistakenly pays the deposit to a cybercriminal? Which case won?

A recent case in the NSW Supreme Court illustrates just how insidious cybercrime can be,
Read More
Can the relatives be cut out of a will and everything left to the neighbours instead? Which case won?
17 Nov 2020

Can the relatives be cut out of a will and everything left to the neighbours instead? Which case won?

In 1996 an elderly aunt made a will, in which she left $100,000 to each of her sisters,
Read More
Who is liable for a balcony collapse on a residential property? Which case won?
05 Nov 2020

Who is liable for a balcony collapse on a residential property? Which case won?

The accident happened on 15 June 2012. Four people were injured when a balcony collapsed
Read More
Was the NDIS required to fund the cost of a sex worker for a woman with severe disabilities? Which case won?
20 Oct 2020

Was the NDIS required to fund the cost of a sex worker for a woman with severe disabilities? Which case won?

Seventeen years ago, a woman referred to as “W”, who is now in her forties, was
Read More
Get more cases
Find an office Find a lawyer Chat

Fill out this form and one of our local law professionals will be in contact

By submitting this form you agree to the terms of our Privacy policy