In America, child pornography offences attract extra jail time if X has prior convictions for ‘aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor’. X pleaded guilty but had a prior for adult sexual abuse. Argument raged between 2 technical grammar rules – the ‘last antecedent’ and ‘series qualifier’ rules5. The former prevailed – that is, ‘involving a minor’ applied only to ‘abusive sexual conduct’. X got 10 years.
In Australia, we apply wider purposive principles and don’t get too hung up on grammatical rules6. iTip – have regard to punctuation7, but be wary of hanging someone on a comma or its absence8.
This case is from Episode 13 of interpretationNOW!
4 Read this case for its clear writing, not its legal learning.
5 Scalia & Garner Reading Law (at 144-151).
7 Pearce & Geddes (at [4.59]), Bennion (5 ed at 751-758).
8 Chew (1992) 173 CLR 626 (at 648).