Burns v Melia
[2005] WASCA 57
•31 MARCH 2005
BURNS -v- MELIA [2005] WASCA 57
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 57 | |
| Case No: | SJA:1137/2004 | 31 JANUARY 2005 | |
| Coram: | SIMMONDS J | 31/03/05 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Matter remitted for rehearing | ||
| A | |||
| PDF Version |
| Parties: | AARON NOEL BURNS HEIDI LOUISE MELIA |
Catchwords: | Criminal law and procedure Driving offences Offence of driving without an appropriate licence against s 49(1)(a) Road Traffic Act 1974 (WA) Offence committed whilst under court-ordered driving suspension Prior conviction for driving whilst under fine-suspension Whether offence of driving whilst under court-ordered suspension was a first or subsequent offence for purposes of determining penalty under s 49(3)(a) Road Traffic Act |
Legislation: | Interpretation Act 1984 (WA), s 18, s 19 Road Traffic Act 1974 (WA), s 49 |
Case References: | Chilcott v Waterhouse (1994) 21 MVR 439 Mills v Meeking (1990) 91 ALR 16 Sevelj v Roffey [2002] WASCA 20 Thompson v Goold & Co (1910) AC 409 Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
HEIDI LOUISE MELIA
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR M D WHEELER SM
File No : JO 9213 of 2004
Catchwords:
Criminal law and procedure - Driving offences - Offence of driving without an appropriate licence against s 49(1)(a) Road Traffic Act 1974 (WA) - Offence committed whilst under court-ordered driving suspension - Prior conviction for driving whilst under fine-suspension - Whether offence of driving whilst under court-ordered suspension was a first or subsequent offence for purposes of determining penalty under s 49(3)(a) Road Traffic Act
(Page 2)
Legislation:
Interpretation Act 1984 (WA), s 18, s 19
Road Traffic Act 1974 (WA), s 49
Result:
Appeal allowed
Matter remitted for rehearing
Category: A
Representation:
Counsel:
Appellant : Mr C L J Miocevich
Respondent : Ms R C Panetta
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : State Solicitor
Case(s) referred to in judgment(s):
Chilcott v Waterhouse (1994) 21 MVR 439
Mills v Meeking (1990) 91 ALR 16
Sevelj v Roffey [2002] WASCA 20
Thompson v Goold & Co (1910) AC 409
Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275
Case(s) also cited:
Nil
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- SIMMONDS J:
Introduction
1 This matter raises a narrow question of interpretation of the Road Traffic Act 1974 (WA), s 49. That section creates the offence of driving without the appropriate or any licence. The question is one on which I was told there is a division of opinion amongst Magistrates. It is one on which neither counsel nor I have found any authority. What is the appropriate sentencing range to apply to an offender facing sentencing for driving while disqualified from holding or obtaining a licence by a court-ordered licence suspension, where that offender has a previous conviction under s 49 for driving under a licence suspension for non-payment of fines? In relation to driving while under court suspension s 49 provides for a higher maximum and a higher minimum fine, and a higher maximum term of imprisonment, for "a subsequent offence" than for "a first offence". In relation to driving while under fine suspension s 49 makes no such distinction. Was the driving under court suspension "a first offence" or "a subsequent offence"?
2 There are some preliminary, procedural, points I need to address before I turn to the question itself.
Procedural Points
3 The matter came before me as an application for extension of time for leave to appeal and for leave to appeal under Justices Act 1902 (WA) s 184 and s 206(c), respectively, with the application to be heard with the appeal, as allowed for under Justices Act, s 190. I determined this was an appropriate case to grant the extension and the leave, and to determine the appeal at the same time.
4 The decision of the learned Stipendiary Magistrate in this matter was given on 17 November 2004. The application for extension of time and for leave to appeal was filed on 24 December 2004. The explanation for the delay past the deadline of 8 December 2004 (21 days: Rules of the Supreme Court1971, O 65A r 2(b)) was, as set out in the affidavit of counsel for the appellant in support of the application, that the transcript of the hearing was not requested until 25 November and not received until 16 December. No objection was made by the respondent to the extension. In the circumstances, I granted it.
5 As to the grant of leave, as will come apparent in these reasons, the case for the appellant is indeed arguable within Justices Act, s 187. No
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- objection was taken by the respondent to that conclusion, or to determining the appeal at the same time as the application. Accordingly, I granted the leave and determined the appeal with the application.
6 From now on it is appropriate to refer to the parties as appellant and respondent.
The Decision Appealed From; Section 49 of the Road Traffic Act
7 On 17 November 2004 Magistrate Wheeler in the Court of Petty Sessions at Joondalup sentenced the appellant to a fine of $1000 and disqualification from holding or obtaining a driver's licence for a period of 9 months cumulative upon any other period of disqualification to which the appellant might then be subject or upon any period for which the operation of the appellant's driver's licence might currently be suspended. This conviction was on a charge, to which the appellant had pleaded guilty, that he had, on 11 November 2004, driven a vehicle on a road without being the holder of the appropriate valid driver's licence for that class of vehicle, and whilst being legally disentitled to hold a driver's licence. This offence was under Road Traffic Act, s 49(1)(a) and s 49(2)(a)(iii).
8 To appreciate the offence and the penalty, as well as the question the penalty raised for me, it is necessary to set out s 49 in full as it stood at 11 November 2004:
"49. Offence of driving motor vehicle without appropriate driver's licence
(1) Subject to this section and to sections 48C to 48F, every person who -
(a) drives a motor vehicle of a class for which he is not the holder of the appropriate, valid driver's licence; or
(b) employs, or permits, some other person to drive a motor vehicle of a class for which that other person is not the holder of the appropriate, valid driver's licence,
on a road, commits an offence.
Penalty: For a first offence, 6 PU.
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- For a subsequent offence, 12 PU.
- (1a) A person who drives a motor vehicle for a purpose or in a manner set out in regulations under section 43(1)(aa) without the authority to do so conferred by an endorsement on the licence under that section is not the holder of an appropriate, valid driver's licence.
(2) Where -
(a) a person -
(i) having applied for a driver's licence and having been refused the issue of the licence under section 48;
(ii) having held a driver's licence that is cancelled under section 48 or of which the operation is suspended under that section;
(iii) having been disqualified from holding or obtaining a driver's licence, other than under a licence suspension order referred to in subparagraph (iv); or
(iv) having been disqualified from holding or obtaining a driver's licence under a licence suspension order made under section 19 or 43 of the Fines, Penalties and Infringement Notices Enforcement Act 1994,
- commits, whilst still legally disentitled to hold a driver's licence, an offence against subsection (1)(a); or
(b) a person in respect of whom an order is made under section 76(3) commits an offence against subsection (1)(a) before a
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- licence has been issued pursuant to that order or when any licence so issued has expired and has not been renewed,
- the person may be arrested without warrant by a member of the Police Force and is liable, instead of to the penalties provided by subsection (1), to those provided by subsection (3).
- (3) A person convicted of an offence against this section committed in any of the circumstances mentioned in subsection (2) is liable -
(a) if the offence is committed in the circumstances mentioned in subsection (2)(a)(i), (ii) or (iii) or (2)(b) -
(i) for a first offence, to a fine of not less than 8 PU or more than 40 PU and imprisonment for not more than 12 months;
(ii) for a subsequent offence, to a fine of not less than 20 PU or more than 80 PU and imprisonment for not more than 18 months;
or
(b) if the offence is committed in the circumstances mentioned in subsection (2)(a)(iv), to a fine of not less than 4 PU or more than 30 PU and imprisonment for not more than 12 months.
(3a) A court convicting a person of an offence committed in the circumstances mentioned in subsection (2)(a)(i), (ii), (iii) or (2)(b) shall order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 9 months and not more than 3 years.
(3b) A court convicting a person of an offence committed in the circumstances mentioned in
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- subsection (2)(a)(iv), but not in the circumstances mentioned in subsection (2)(a)(i), (ii) or (iii) or (2)(b), may order that the person be disqualified from holding or obtaining a driver's licence for a period of not more than 3 years.
- (3c) A period of disqualification ordered under subsection (3a) or (3b) is cumulative upon any other period of disqualification to which the person may then be subject or upon any period for which the operation of the person's driver's licence may currently be suspended.
(4) Subsection (1) does not apply to the driving of a vehicle that is exempted by the regulations from paragraph (b) of the description of 'Motor carrier' in the First Schedule if the vehicle is being driven by a physically disabled person. "
9 The offence in the case of the appellant was thus driving without the appropriate licence (s 49(1)(a)) because he was still legally disentitled to hold a licence, having been disqualified from holding or obtaining one, but other than under a licence suspension order made pursuant to the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 19, s 43 (s 49(2)(a)(iii)). The relevant disqualification was a court-ordered suspension of the appellant's driver's licence imposed by the Court of Petty Sessions on 28 October 2004 and expiring on 27 January 2005.
10 The penalty of a fine of $1000 and 9 months' disqualification, plus costs, corresponded, as to the fine, to the minimum for a "subsequent offence" under s 49(3)(a)(ii), above. The learned Stipendiary Magistrate imposed the penalty on the basis that the penalties for a "subsequent offence" in s 49(3)(a)(ii) above, rather than the penalties for a "first offence" in s 49(3)(a)(i), were relevant. This was because the offender had a prior driving record that included the conviction for driving under fine suspension contrary to s 49(1)(a) and s 49(2)(a)(iv), above.
11 For the offender the submission had been put to the learned Stipendiary Magistrate that only a prior conviction for the offence under s 49(1)(a) committed in any of the sets of circumstances mentioned in s 49 (2) other than s 49(2)(a)(iv)'s driving while under fine suspension could count as a prior offence. That is, only a prior offence committed in
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- the circumstances referred to in s 49(3)(a), the provision under which he was being sentenced, would place the offender under s 49(3)(a)(ii). The learned Stipendiary Magistrate had rejected that submission. Although the matter is not altogether clear from his reasons as indicated in the transcript in the appeal book, the learned Stipendiary Magistrate appears to have done so on the basis of the opening words of s 49(3), which as has been seen are in terms of "a person convicted of an offence against this section committed in any of the circumstances mentioned in subsection 2". He noted that those words referred to an offence "against this section, that's the section, not the sub-section … committed in the circumstances mentioned in subsection (2), which it was" (AB 6).
12 It is not clear, from the passage I have just quoted or from its context, whether the Magistrate had taken it from s 49(3)'s opening words that "offence" in s 49(3)(a)(i) and (ii) refers to an offence in any of the circumstances mentioned in s 49(2), or rather whether he took it from those words that the "offence" was meant even more broadly, as simply one against s 49, that is, s 49(1). I took it from submissions of counsel for the appellant, who indicated he had experience of this approach in the Court of Petty Sessions beyond this case, that it was the former, narrower, construction that the Magistrate was adopting. This was in preference to what the Magistrate referred to as the other "big school of thought" (AB 7), by which I take him to have been referring to the narrowest position of all, the one pressed on him by counsel for the offender, and on me by counsel for the appellant, which I have already described.
13 The ground of appeal as corrected in a minor respect at the hearing is:
"The Learned Magistrate erred in law by finding an offence committed under section 49(2)(a)(iv) of the Road Traffic Act (RTA) of driving under fine suspension, can be counted as a first offence under section 49(3)(a) of the RTA.
14 It is not necessary to set out the particulars of this ground, as they are subsumed in the account I have already provided.
15 The appellant's submissions were that the erroneous construction was contrary to the clear or plain meaning of s 49(3)(a). It was also contrary to the policy underlying the distinction drawn in s 49(2) between offences in any of the sets of circumstances mentioned in s 49(2)(i), (ii) or (iii), or s 49(2)(b), on the one hand, and s 49(2)(a)(iv), on the other. I deal with those submissions in that order.
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The Clear or Plain Meaning of Section 49(3)(a)
16 If the meaning of "subsequent offence", read in its context, is clear or plain, then, absent a good reason to do otherwise, effect should be given to that meaning: D C Pearce and R S Geddes, "Statutory Interpretation of Australia", 5th ed (2001) at pages 88 – 102. For the appellant it was put to me that the meaning of the phrase read in its context is clear or plain. The word "offence" in s 49(3)(a)(i) and (ii) should be read by reference to the words preceding it in s 49(3) and s 49(3)(a). Those words describe a s 49 offence with particular characteristics, which are those of conduct:
A Contrary to s 49(1) (s 49(3), opening words, first part)
B In any of the circumstances mentioned in s 49(2) (s 49(3), opening words, second part); provided that
C Those circumstances are the ones mentioned in s 49(2)(a)(i), (ii) or (iii), or (2)(b) (s 49(3)(a), introductory words).
17 Particular emphasis was placed for the appellant on "first offence" in s 49(3)(a)(i), which it was said could not refer to an offence as broadly defined as that in A, above, or even one with the greater specificity of B, above. The phrase "first offence" could not so refer, as I understood the argument, because the only offence against s 49 charged had to be the one making s 49(3)(a) relevant, rather than one making s 49(3)(b), or s 49(1) alone, relevant. Once this was appreciated, s 49(3)(a)(ii)'s "subsequent offence" could be seen to refer clearly or plainly to what was a second or later offence with the same characteristics.
18 The difficulty I have with utilising "first offence" in the way suggested is that it does not take account of the multiple possible characterisations of offences committed in the circumstances referred to in s 49(3)(a). Those offences are against s 49(1) while having the characteristics in s 49(2(a)(i), (ii) or (iii), or (2)(b), as I have indicated.
19 On the face of it, it would seem to me to be possible, in light of the structure of s 49(3) as mapped out under the letters A, B and C above, to read "first offence" as meaning an offence committed in the circumstances mentioned in s 49(2) generally, namely, s 49(2)(a)(i), (ii), (iii) or (iv), or (2)(b), representing the offender's first s 49(1) offence committed in those circumstances. This, as I have indicated, appears to have been the reading of the learned Stipendiary Magistrate in this case.
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20 But it would also seem to me to be possible, in the same light, to read "first offence" as an offence committed in the circumstances mentioned in s 49(2)(a)(i), (ii) or (iii), or (2)(b), representing the offender's first s 49(1) offence, which was the reading pressed on me by counsel for the respondent.
21 I would have found the appellant's reading of "first offence", and of "subsequent offence" harder to avoid had the word "such" appeared immediately after each of "first" and "subsequent". Counsel for the respondent put it to me that the appellant's reading required such a set of additional words, and proffered other ones. These, to follow "subsequent offence", were "where the prior offence was also committed in circumstances mentioned in s 49(2)(a)(i), (ii) or (iii), or (2)(b)". The respondent's submission was that the ordinary meaning of "offence" was a reference to the only one s 49 created, that in s 49(1). There had to be a good reason to read in (more accurately, imply) words that are not in a legislative provision: Thompson v Goold & Co (1910) AC 409 at 420, per Lord Mersey; quoted in Pearce and Geddes (supra) at [2.27]. Such a reason might be found where the intention of the legislature in relation to the matter was clear, but there was simply a failure to use the appropriate words to achieve that purpose: Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283, per Mahoney JA, McHugh and Clarke JJA agreeing; see also Pearce and Geddes at [2.28]. The respondent argued that no such intention could be discerned here.
22 However, it seems to me that the context of s 49(3)(a)(i) and (ii), namely, the structure of s 49(3) itself which I mapped in A, B and C above, is at least a partial answer to the respondent's argument. This is not a case of reading in or implying words that are "not there", in the light of s 49(3)(a), introductory words.
23 However, it is also the case that the lack of clarity of the provision makes it difficult to dismiss the respondent's argument simply on the basis I have referred to. It seems to me the respondent's argument, as well as that for the appellant, requires me to confront the relevant policy of s 49.
The Policy, Purpose or Object of the Differentiation in Section 49(3)
24 In attempting to discern that policy, it is appropriate to begin with a reading of s 49 as a whole. That reading makes it clear the circumstances in s 49(2) are defined for the purposes, among other things, of the application to offences committed in such circumstances of a different penalty regime from that for other cases falling under s 49(1). The former regime provides for higher fines. In addition, in the circumstances in
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- s 49(2), but not under s 49(1) alone, there is also the possibility of imprisonment, and at least the possibility of a licence disqualification, to be cumulative on any other licence disqualification or suspension period.
25 In addition, as s 49(3) and s 49(3a) and (3b) indicate, within s 49(2) there is a further differentiation to be made. This is between offences committed in the circumstances mentioned in s 49(2)(a)(i), (ii) or (iii), or (2)(b), on the one hand, and those mentioned in s 49(2)(a)(iv), on the other. This is for the purposes, for the former, not only (under s 49(3)) of a higher range of fines and a higher maximum term of imprisonment, and with a differentiation between a first and a subsequent offence, but also (under s 49(3a) compared with (3b)) of a disqualification period with a minimum as well as a maximum period.
26 These differentiations point, for me, to an ambiguity in the meaning of "offence" in s 49(3)(a)(i) and (ii), confirming the view I formed based on the structure of s 49(3) in terms of the A, B and C structure I referred to in the context of the appellant's submission on "first offence". That is, notwithstanding that s 49's only offence creating provision is in s 49(1), a point counsel for the appellant conceded, there is a sense in which a range of types of offence of that sort is provided for, in terms which one might also see used in other settings to describe different offences. The use of the policy or purpose of a provision, extracted from its terms as a whole as I have done here, so as to determine whether or not more than one construction of language like "offence" in s 49(3)(a)(i) and (ii) is open, is called for by Interpretation Act 1984 (WA), s 18, which requires a construction to promote the purpose or object underlying a provision to be preferred over one that would not: see Mills v Meeking (1990) 91 ALR 16 at 30 – 31, per Dawson J quoted in Pearce and Geddes (supra) at [2.9].
27 The sense of "offence" I have just described is confirmed for me by language used in the parliamentary debates accompanying the introduction in 2001 of the current differentiation within s 49(2). Consideration of extrinsic materials such as parliamentary debates to determine the meaning of a provision when it is ambiguous or obscure is of course permissible under Interpretation Act, s 19(1)(b)(i): see also Pearce and Geddes (supra) at [3.12].
28 Prior to the coming into force of the Acts Amendment (Fines Enforcement and Licence Suspension) Act 2000 (WA), s 49(2) did not differentiate between disqualifications from holding or obtaining a driver's licence as s 49 now does. There was no separation out of anything in the nature of fine suspensions, and there was no s 49(2)(a)(iv). However,
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- s 49(2) did differentiate between offences committed in circumstances mentioned in what is now s 49(2)(a)(ii), (iii) or (iv), or (2)(b), on the one hand, and offences committed in the circumstances mentioned in what is now s 49(2)(a)(i), on the other. This was, however, for the purposes only of a penalty differentiation like that in the present s 49(3), a penalty differentiation expressed somewhat differently, as I will indicate below.
29 The parliamentary debates to which my attention was directed were from the Second Reading Debate in both the Legislative Council and Assembly. There were references throughout, both in speeches for the Government and for the Opposition, to the intention underlying the legislation "to create a separate offence of driving under fine default suspension" (Mr Barron-Sullivan, moving in the Assembly on 17 August 2000 that the Bill be read a second time: AB 27; see also Mr McGinty for the Opposition, AB 34). It was stated "the new offence of driving under fine default suspension will attract a lower penalty than that for the offence of driving under a court-imposed suspension" (Mr Barron-Sullivan, AB 31), and that "a separate offence of driving under suspension because of a fine default, with a lesser penalty, would recognise the difference between driving under suspension because of fine default and having a licence suspended as a penalty for a substantive breach of the Road Traffic Act" (Mr McGinty, AB 34 – 35).
30 It was conceded before me on both sides that there is no direct address in these debates of the meaning of "offence" in s 49(3)(a)(i) and (ii). Counsel for the respondent pressed on me that I thus had no reason to conclude that "offence" should be read differently in s 49(3)(a)(i) and (ii) from elsewhere in s 49. I was directed for this purpose to the rule of statutory construction which is that words are assumed to be used consistently throughout the statute, which applies even more strongly to the use of the word in the same section: see Pearce and Geddes (supra) [4.4] and s 9 of the Interpretation Act. However, it was conceded this yielded to a contrary intention sufficiently appearing from the legislation, and here it is a matter of reading a phrase, "subsequent offence", in a particular context, the immediately preceding language and the structure of s 49 which I have already highlighted, and to which I will shortly return. On that basis, I do not derive much assistance from the rule.
31 It is of course the case that the material in the debates might in accordance with Interpretation Act s 19(1)(b)(i) properly be used to confirm the meaning of "offence" in s 49(3)(a)(i) and (ii) is the "ordinary meaning conveyed by the text of the provision taking into account the context in the written law and the purpose or object underlying the written
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- law". However, it appears I was being asked to conclude that neither the context of s 49(3a)(i) and (ii), reflective as it is of the purpose of distinguishing driving under fine suspension from offending in the other s 49(2) circumstances, nor that purpose or object, should be seen as bearing on the meaning of "offence" in s 49(3)(a)(i) and (ii). The reference in the debate to a "separate offence of driving under fine suspension" should, on this submission, be taken simply as a shorthand for an "offence committed in the circumstances mentioned in (2)(a)(iv)", from s 49(3)(b). I was referred to judicial usage, on the earlier form of s 49, to which I will return. That usage is of the different "cases", represented by the counterparts to current s 49(2)(a)(i), (ii) and (iii), of an offence against s 49(1): Chilcott v Waterhouse (1994) 21 MVR 439, Parker J, at 439.
32 However, it appears to me that the context and the purpose or object of s 49(3)(a)(i) and (ii) do indeed confirm that offence there is to be read in the narrowest sense. In my view, Chilcott's usage simply confirms the point already noticed, that s 49(1) is the only provision in s 49 creating a substantive offence.
33 The immediate context to s 49(3)(a)(i) and (ii) is s 49(3)'s progressive narrowing of the "offence" in question, in this case, a narrowing which I mapped earlier in these reasons at A, B and C. Put slightly differently, this narrowing is one starting in s 49(3), opening words, first part, with an offence against s 49(1) and proceeding, in s 49(3)'s opening words, second part, to an offence committed in the circumstances mentioned in s 49(2), which is followed by a further narrowing, in s 49(3)(a), introductory words, to an offence committed in the circumstances mentioned in s 49(2)(a)(i), (ii) or (iii), or (2)(b). This is followed by s 49(3)(b)'s separate treatment of an offence committed in the circumstances mentioned in s 49(2)(a)(iv).
34 The larger context is the more severe penalties under s 49(3)(a) than under (3)(b), as well as the more constraining provisions with respect to licence disqualification under s 49(3a) compared with s 49(3b).
35 It is true that the offences in both cases carry a penalty, the possibility at least of further licence disqualification, not provided for cases outside s 49(2). This might tend to support the view that an offence in any of the circumstances mentioned in s 49(2), to which s 49(3), opening words, second part, directs attention, is the referent of "offence" in s 49(3)(a)(i) and (ii). This is the construction that appears to have been
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- adopted by the learned Stipendiary Magistrate in this case, as I have indicated earlier.
36 However, this approach, intermediate between the broadest reading of "offence", contended for by the respondent, and the narrowest such reading, contended for by the appellant, appears to me not to take full account of the immediate context, s 49(3)(a), introductory words. I further note the approach does not allow for the lack of separate provision for subsequent offences committed in the circumstances mentioned in s 49(2)(a)(iv), unlike all of the other cases of offences under s 49. Nor does the approach allow for the way the provision for fines of offences committed in the circumstances mentioned in s 49(2)(a)(iv) overlaps at the bottom of its range (4 PU to 30 PU: s 49(3)(b)) with the top of the range of fines for offences committed in circumstances outside any of those mentioned in s 49(2) (6 PU for a first offence, 12 PU for a subsequent one: s 49(1)).
37 My attention was drawn to the form of s 49(2)'s penalty provision as it was immediately preceding the amendments made by the Acts Amendment (Fines and Enforcement Licence Suspension) Act 2000 above. That form was in material part as follows, with the emphasis I have supplied:
"…
Penalty –
(i) if the offence is committed in the circumstances mentioned in paragraph (a)(i): a fine of not less than 4 PU or more than 30 PU or imprisonment for a term not exceeding 12 months;
(ii) if the offence is committed in the circumstances mentioned in paragraph (a)(ii) or (iii) or (b); for a first offence, a fine of not less than 8 PU or more than 40 PU, or imprisonment for a term not exceeding 12 months, or both the fine and the imprisonment; and for any subsequent offence committed in any of those circumstances, a fine of not less than 20 PU or more than 80 PU, or imprisonment for a term not exceeding 18 months, or both the fine and the imprisonment."
38 The appellant submitted that the this earlier form is not in fact very different from the current one, as the qualifying phrase "committed in any
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- of those circumstances" after "subsequent offence" is simply a repetition of the phrase before the immediately preceding semi-colon.
39 However, it is not readily apparent to me why the legislature would have found such repetition necessary, and the appellant conceded that on that reading the phrase was probably superfluous. On the alternative construction, the words are not repetitive or superfluous. On that construction, the correctness of the narrowest reading of "subsequent offence", advanced by the appellant in this case, would have been reasonably clear. In that light, it seems to me that the recasting of the structure of the penalty provision in the form of the current separate subsection, s 49(3), might be seen to avoid the apparent awkwardness of the drafting of the former provision, with its references (ii) to "a first offence", and later to "any subsequent offence committed in any of those circumstances". Further, there is nothing in the parliamentary debates on the Bill to produce the current form of s 49(3) to which my attention was drawn to indicate the recasting was meant to change this aspect of the s 49(2) penalty structure.
40 That having been said, the support from this history of the penalty provision is, it seems to me, only limited, in the light of the structural changes made, and in the absence of any discussion of the matter in the parliamentary debates.
41 However, those debates do, it seems to me, offer greater support for the appellant in terms of their stress on the lesser penalties for driving under fine suspension relative to driving in the other circumstances mentioned in s 49(2). It would be more consistent with that purpose to adopt the narrowest reading of "offence" in s 49(3)(a)(i) and (ii), restricting offences as referred to in the paragraph to ones committed in the circumstances mentioned in s 49(2) other than those in s 49(2)(a)(iv), than to adopt either of the other readings.
42 It is the case, as counsel for the respondent pressed on me, that what is in issue in s 49(3)(a) is not the penalty for driving under fine suspension. However, it seems to me that the respondent's reading, or the intermediate one of the learned Stipendiary Magistrate in this case, would give a penalty effect to a conviction for driving under fine suspension equivalent to that of a conviction for driving under a court ordered suspension (s 49(2)(a)(iii)). This appears to me to be at some odds with the purpose of the differentiation between the offences in the two sets of circumstances in current s 49 as indicated in the passages in the parliamentary debates to which I have referred.
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Conclusion
43 It follows from these reasons that I would construe "subsequent offence" in Road Traffic Act, s 49(3)(a)(ii) as referring to a second or later offence of the sort referred to in s 49(3)(a), that is, one committed in the circumstances mentioned in s 49(2)(a)(i), (ii) or (iii), or (2)(b). It also follows that I would construe "first offence" in s 49(3)(a)(i) in a parallel way, to refer to a first offence of the same sort.
44 I would thus uphold the appellant's ground of appeal. During the hearing I asked counsel whether they wished to make submissions to me as to penalty in the event I were to allow the appeal. They indicated to me that they were content for the matter to be remitted to the Magistrate for reconsideration in the light of these reasons. I consider that to be the appropriate course for this matter to follow: see Sevelj v Roffey [2002] WASCA 20 at [33] per McLure J.
Order
45 Appeal allowed; matter remitted to the Magistrate below for reconsideration in the light of these reasons.
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