Arch v Linfox Australia Pty Ltd - [2024] WASC 376

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ARCH -v- LINFOX AUSTRALIA PTY LTD [2024] WASC 376
CORAM:   COBBY J
HEARD:   9 AUGUST 2024; FURTHER SUBMISSIONS FILED 16 AUGUST 2024
DELIVERED          :   18 OCTOBER 2024
FILE NO/S:   SJA 1004 of 2024
BETWEEN:   ANDREW ARCH
Appellant
AND
LINFOX AUSTRALIA PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B WHITE
File Number            :   PH 855/23

Catchwords:

Statutory construction - Sentencing Act 1995 (WA) - Spent conviction order - Corporations

Legislation:

Criminal Appeals Act 2004 (WA) s 14(2)
Road Traffic (Vehicles) Act 2012 (WA) s 29(1)
Road Traffic (Vehicles) Regulations 2014 (WA) reg 187
Sentencing Act 1995 (WA) s 39, s 40, s 45
Spent Convictions Act 1988 (WA) s 3

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	J M Misso & A L Nowak
Respondent	:	S F Rafferty SC

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	Bennett

Case(s) referred to in decision(s):

Harper v Page [2004] WASC 267
MKP Management Pty Ltd v Shire of Kalamunda [2020] WASCA 130; (2020) 56 WAR 56
Mohammadi v Bethune [2018] WASCA 98
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
SZATL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CL 362
Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531

COBBY J:

On 18 December 2023, the respondent pleaded guilty to one charge of failing to comply with a loading requirement pursuant to reg 187 of the Road Traffic (Vehicles) Regulations 2014 (WA), contrary to s 29(1) of the Road Traffic (Vehicles) Act 2012 (WA). In sentencing the respondent, the learned magistrate imposed a fine of $9,000 and made a spent conviction order.
The appellant contends that the learned magistrate erred in law because the courts lack power to make a spent conviction order where the offender is a corporation.
For the reasons which follow, I find that Western Australian courts do not have the power to make a spent conviction order where the offender is a body corporate. It follows that the learned magistrate erred in making such an order, and that leave to appeal should be granted and the appeal allowed.
A spent conviction order is a creature of statute. Section 39(1) of the Sentencing Act 1995 (WA) (the Act) provides that section applies to an offender 'who is a natural person'.
Section 39(2) provides:
(2)Subject to sections 41 to 45, a court sentencing an offender may ‑
(a)with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender; or
(b)with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender; or
(c)with or without making a spent conviction order, under Part 8 impose a fine and order the release of the offender (unless an order under section 58 is made); or
(ca)with or without making a spent conviction order, under Part 8A impose a suspended fine; or
(d)with or without making a spent conviction order, under Part 9 impose a CBO and order the release of the offender; or
(e)under Part 10 impose an ISO and order the release of the offender; or
(f)under Part 11 impose suspended imprisonment and order the release of the offender; or
(g)under Part 12 impose CSI and order the release of the offender; or
(h)under Part 13 impose a term of imprisonment.
Section 40(1) of the Act provides that section applies where the offender is a body corporate. Section 40(2) of the Act provides:
(2)Subject to sections 41 to 44, a court sentencing an offender may ‑
(a)under Part 6 impose no sentence; or
(b)under Part 8 impose a fine; or
(c)under Part 8A impose a suspended fine.
It will immediately be seen that, unlike s 39(2), there is no reference to either the making of a spent conviction order or s 45 in s 40(2) of the Act.
Section 45(1) provides that:
(1)Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to -
(i)the fact that the offence is trivial; or
(ii)the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
Section 45(2) provides that an order that a conviction is a spent conviction for the purposes of the Act has the effect that the order is a spent conviction for the purposes of the Spent Convictions Act 1988 (WA).
The respondent contends that the legislature would have included a specific provision prohibiting the making of a spent conviction order where the offender is a body corporate if that had been its intention. It submits that where the Act prohibits a particular course in sentencing an offender, it does so in clear terms, as demonstrated by (for example) s 39(3), s 40(3) and s 45(2). It follows, it is submitted, that the absence of an express prohibition in respect of making a spent conviction order where the offender is a body corporate indicates that the legislature intended that there be power to make such an order.
The respondent further submits that:
(a)the use of the words "with or without making a spent conviction order" in s 40(2)(a) to (c) would be redundant if s 40(2) were to be read in conjunction s 39(2), since each of the penalties identified in s 40(2)(a) to (c) can be imposed by the court where the offender is a natural person;
(b)the words '[u]nder section 39(2)' in s 45(1) would be redundant if there was no power to make a spent conviction order where the offender is a body corporate, because 'there would be no requirement for those words to be used as the prohibition on the making of a spent conviction order unless certain prerequisites apply would simply be limited to the five penalties listed in s 39(2)(a)to (d)'.
In my view, the text of the Act makes clear that Parliament did not intend that a spent conviction order could be made in respect of a body corporate, a clear distinction being drawn in s 39 and s 40 between natural persons and bodies corporate.
The principles of statutory construction are well settled. Statutory construction involves the attribution of meaning to the statutory text. The starting point for determining the meaning of a statutory provision is the text of the statute whilst having regard to its context and purpose.[1]
[1] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] ‑ [71]; SZATL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14], [35] - [37]; Mohammadi v Bethune [2018] WASCA 98 [31] - [36].
Although a purposive approach to construction may allow reading a provision as if it contained additional words, with the consequence that the provision has an expanded field of operation, a construction which 'fills gaps disclosed in legislation', or make an insertion which is 'too big, or too much at variance with the language in fact used by the legislature" is unlikely to be justified.[2]
[2] Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [37] - [38].
Section 39(2) confers express power to make a spent conviction order in respect of a natural person. The effect of such an order is specified by s 45(2).
Section 40 is solely concerned with the sentencing of bodies corporate. Unlike s 39(2), it makes no reference to the making of a spent conviction order nor to s 45.
It is clear that the Spent Convictions Act has no application to bodies corporate, s 3 of that statute defining the term 'conviction' to mean 'a conviction incurred by a natural person for an offence against the law of this State or of a foreign country', and 'spent conviction' to mean a conviction that is spent under s 6, s 7 or s 8 of the Spent Convictions Act or that is spent by virtue of a spent conviction order made under s 39 of the Act.
In my view, when regard is had to the separate and different treatment of natural persons and bodies corporate in s 39 and s 40 of the Act and that the Spent Convictions Act has no application to bodies corporate, the clear intention of the legislature was that Western Australian courts were not to have power to make a spent conviction order in favour of a body corporate.
The absence of any provision in the Act expressly prohibiting the making of a spent conviction order in relation to a body corporate is explained, in my view, by the absence of any expressed power to make such an order. There is no need for the Act to prohibit what cannot be done.
That construction of the Act is supported by the failure of the Act, if the respondent's construction were correct, to identify what would be the effect of a spent conviction order made in respect of a body corporate. Although senior counsel for the respondent suggested that the practical effect of the making of a spent conviction order in favour of a body corporate under the Act should be regarded as if there had been no conviction in the first place, I do not accept that proposition.
As explained by Le Miere J in Harper v Page,[3] the provisions of the Spent Convictions Act do not invalidate or render void a conviction, but instead limit or provide relief from its adverse effects. Those limitations and relief are entirely founded in the provisions of Spent Convictions Act.
[3] Harper v Page[2004] WASC 267 [14] - [15].
A spent conviction order made in relation to a body corporate, if it were to operate as suggested by the respondent, would therefore take effect in a very different manner than that contemplated by the Act in respect of natural persons.
Accepting the respondent's construction of the Act therefore would not only be inconsistent with the text of s 39, s 40 and s 45 (which are the only provisions which have been identified as giving rise to any power to make a spent conviction order in respect of a body corporate), but would give the Act an effect that the legislature did not intend that it have.
I was informed by senior counsel for the respondent that courts have been making spent conviction orders in respect of offenders which are bodies corporate, in effect, since the commencement of the Act. Although the respondent did not suggest so, that submission might be said to be supported by the absence of any adverse comment by the Court of Appeal in MKP Management Pty Ltd v Shire of Kalamunda,[4] a case in which the Court of Appeal set aside a company's conviction and directed that a judgment of acquittal be substituted therefore, where a spent conviction order had been made by the magistrate at first instance.
[4] MKP Management Pty Ltd v Shire of Kalamunda [2020] WASCA 130; (2020) 56 WAR 56.
In my view, the absence of any adverse comment regarding the making of a spent conviction order by the Court of Appeal in that case is explained by the matter being irrelevant to the Court of Appeal's reasoning in the case, the matter for determination being whether the company's conviction should be set aside.
The decision in MKP Management therefore does not provide any support for the existence of a power to make a spent conviction order where the offender is a body corporate.
If there has been a practice of making spent convictions orders where the offender is a body corporate in the past, that practice has not been in accordance with the Act or the Spent Convictions Act.
The learned magistrate therefore erred in law in making such an order.
Section 14(2) of the Criminal Appeals Act 2004 (WA) provides that the court may, even if a ground of appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
In the present case, the respondent being a body corporate, there was no power to make a spent conviction order. In my view, the making of an order not authorised by law gives rise to a substantial miscarriage of justice, and it is therefore appropriate that I grant leave to appeal, and allow the appeal.
I will hear from the parties as to the appropriate orders to be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VR
Associate to the Hon Justice Cobby
18 OCTOBER 2024