Clarkson v Dainton
[2017] WASC 309
•1 NOVEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CLARKSON -v- DAINTON [2017] WASC 309
CORAM: LE MIERE J
HEARD: 28 SEPTEMBER 2017
DELIVERED : 1 NOVEMBER 2017
FILE NO/S: SJA 1034 of 2017
MATTER :Criminal Appeals Act 2004 Pt 2
BM 2836 of 2016 and BM 2922 of 2016 in the Magistrates Court of WA at Broome
BETWEEN: LESLIE JOHN CLARKSON
Appellant
AND
SCOTT HAROLD DAINTON
Respondent
FILE NO/S :SJA 1035 of 2017
BETWEEN :LESLIE JOHN CLARKSON
Appellant
ELLEN GRACE WALLIS
Respondent
ON APPEAL FROM:
For File No : SJA 1034 of 2017
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE S SHARRATT
File No :BM 2836 of 2016
For File No : SJA 1035 of 2017
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE S SHARRATT
File No :BM 2922 of 2016
Catchwords:
Appeal against conviction under s 557K(6) Criminal Code - Whether appellant a 'child sex offender' - Whether the appellant has been 'convicted of a relevant offence' - Where s 189(2) Young Offenders Act 1994 (WA) provides for certain convictions to not be regarded as convictions - Whether s 189(2) Young Offenders Act 1994 (WA) constrained by s 189(9) - Exercise of statutory construction
Legislation:
Act Amendment (Spent Convictions Act) 1988 (WA), s 2, s 3
Child Welfare Act 1947 (WA), s 40, s 40(2a)
Child Welfare Act Amendment Act (No 2) 1976 (WA), s 50
Criminal Code 1913 (WA), s 557K(6)
Spent Convictions Act 1988 (WA), pt 3, s 25(1), s 14(2)(b)(i)
Young Offenders Act 1994 (WA), s 189(2), s 189(9)
Result:
Extension of time to apply for leave to appeal granted
Leave to appeal granted
Appeals allowed
Convictions set aside
Category: A
Representation:
SJA 1034 of 2017
Counsel:
Appellant: Ms K Heath
Respondent: Ms J Langworthy
Solicitors:
Appellant: Aboriginal Legal Service (WA)
Respondent: State Solicitor for Western Australia
SJA 1035 of 2017
Counsel:
Appellant: Ms K Heath
Respondent: Ms J Langworthy
Solicitors:
Appellant: Aboriginal Legal Service (WA)
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
P (a child) v The Queen (1997) A Crim R 593
Thiess v Collector of Customs (2014) 250 CLR 664
LE MIERE J:
Summary
On 19 October 2016 at Broome Magistrates Court the appellant was convicted on his plea of guilty of one charge of being a child sex offender who without reasonable excuse, on 18 October 2016, was near a place that is a school and where children were present contrary to s 557K(6) of the Criminal Code 1913 (WA) (Criminal Code). The appellant was fined $750. On 2 December 2016 the appellant was convicted at the Broome Magistrates Court on his plea of guilty, of one charge of being a child sex offender who, without reasonable excuse, on 23 October 2016, was in a school with children who are present contrary to s 557K(6) of the Criminal Code. The appellant was sentenced to a term of imprisonment of 3 months, cumulative on a 12 month head sentence for an unrelated offence.
On 23 May 2017 the appellant filed appeal notices seeking leave to appeal against each of the convictions, and an extension of time to do so. In each application, the ground of appeal is that there was a miscarriage of justice as the appellant could not have been guilty of an offence under s 557K of the Criminal Code as he could not be regarded as a 'child sex offender' for the offence charged. The appellant says that the alleged offences occurred at least two years after the expiry of the sentence imposed on the appellant for a juvenile sex conviction and that conviction could not be regarded as a conviction for the purpose of the offence charged because of the operation of s 189 of the Young Offenders Act 1994 (WA) (YO Act). Section 189(2) of the YO Act provides that if a young person is convicted of an offence and a period of two years has expired since the discharge of any sentence imposed as a result of the conviction, the conviction is not to be regarded as a conviction for any purpose except as provided in that section.
The respondents accept that if the appellant was convicted in error then an extension of time to appeal should be granted, there should be leave to appeal and the appeal should succeed. However, the respondents say that the appellant was not convicted in error. The respondents say that s 189(2) of the YO Act provides that the expired conviction is not to be regarded as a conviction for any purpose except as provided in this section. Section 189(9) of the YO Act provides that pt 3 of the Spent Convictions Act 1988 (WA) (SC Act) has effect in relation to a conviction that, under YO Act s 189, is not to be regarded as a conviction as if it were a spent conviction under the SC Act. Therefore, the respondents say pt 3 of the SC Act has effect with respect to the appellant's juvenile offences. The general rule in s 25(1) of the SC Act is that '[a] reference in a written law of this State (other than this Act) to a conviction of a person for an offence does not include a reference to a spent conviction'. Section 14(2)(b)(i) of the SC Act provides that s 25(1) does not apply in a court or tribunal for the purpose of the determination of the guilt or innocence of a person charged with an offence where a conviction is relevant to that determination. That is, the respondents say, s 14 of the SC Act effectively removes the shield of a spent conviction in certain circumstances, which include where a person is charged with an offence where a conviction is relevant to that determination.
For the reasons which follow I find that s 189(9) of the YO Act is not an exception to s 189(2). Section 189(2) operates independently of s 189(9) so that any conviction falling within its terms 'is not to be regarded as a conviction for any purpose'. Section 189(9) does not constrain s 189(2), such that s 189 only operates on a juvenile conviction to the same extent that the SC Act operates upon spent convictions. Therefore, the appeal should be allowed and the convictions set aside.
Question of construction
The sole question is one of construction. I find that the correct or preferable construction is that advanced by the appellant.
The High Court has emphasised that the starting point and ending point for the task of statutory construction is the statutory text. The context, including the legislative history and the extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text. The purpose of the legislation may assist in construing its provisions. A construction that would promote the identified purpose of the legislation shall be preferred to a construction that would not do so. However, the purpose of the legislation must be ascertained from what the legislation says rather than any assumption about the desirable reach or operation of relevant provisions: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; Thiess v Collector of Customs (2014) 250 CLR 664.
Correct or preferred construction
I find that the appellant's construction of YO Act s 189 is correct for three reasons. First, that is the ordinary and natural meaning of the text of s 189. Secondly, that construction is confirmed by the history and structure of the legislative provisions relating to 'old' convictions of young persons in children's courts. Thirdly, that interpretation is confirmed by consideration of the Court of Appeal decision in P (a child) v The Queen (1997) A Crim R 593 (P (a child)).
Natural and ordinary meaning
Section 189(2) of the YO Act says that if a young person is convicted of an offence and the defined period of two years has expired, the conviction is not to be regarded as a conviction for any purpose except as provided in that section. Subsections 7 and 8, which provide that '[t]his section does not prevent' and 'this section does not affect' are clearly exceptions. The language of s 189(9) is not the language of exception.
The natural meaning of s 189(9) of the YO Act is to extend the protection of a child convicted in the Children's Court, and facilitate his or her rehabilitation, rather than having the effect that a conviction that under s 189(2) is not to be regarded as a conviction is to be regarded as a conviction if a conviction of an adult that is a spent conviction under the SC Act is to be regarded as a conviction for some purposes under the SC Act.
Structure and legislative history
The predecessor of YO Act s 189 is Child Welfare Act 1947 (WA) (CW Act) (repealed). In 1994, CW Act s 40 was repealed by s 209 of the YO Act and the relevant provisions re-enacted in s 189 of the YO Act. YO Act s 189 has not been relevantly amended since.
CW Act s 40(2a), which is the predecessor to and is in substantially the same terms as YO Act s 189(9), was inserted in the CW Act by s 3 of Acts Amendment (Spent Convictions Act) 1988 (WA) (AASC Act). The AASC Act was enacted at the same time as the SC Act. AASC Act s 2 provides that that Act shall come into operation on the same day on which the SC Act comes into operation.
The SC Act is an Act 'to make provision for a person who has been convicted of an offence against the law of this State … and who has not re‑offended during a specified period to be rehabilitated by limiting the effects of the conviction …': see SC Act long title. Part 2 of the SC Act set out the requirements for convictions to become spent. Part 3 sets out the effect of a conviction becoming spent. The spent conviction scheme under the SC Act does not apply, of its own force, to convictions of young persons or children: see SC Act s 4(1)(a) and (c); s 6 and s 7.
At the time the SC Act and the AASC Act were enacted the CW Act already made legislative provision for the rehabilitation of children who had been convicted of an offence in the Children's Court. The provisions relating to the rehabilitation of children convicted in the Children's Court was inserted in the CW Act by s 50 of the Child Welfare Act Amendment Act (No 2) 1976 (WA). On moving the second reading of the bill which became the Child Welfare Act Amendment Act (No 2) 1976, the Minister said:
A concept of a rehabilitated person is introduced which provides that where a child has completed a successful period of probation, or where that child has cleared his commitment and not offended for two years, such child will be deemed not to have been convicted. This will give the child concerned some incentive, and an opportunity to prevent juvenile convictions disrupting his adult life. (Western Australia, Parliamentary Debates, Legislative Council, 21 September 1996, 2596, Mr Norman Eric Baxter, Minister for Community Welfare).
On the enactment of the SC Act and the AASC Act the rehabilitation of children convicted in the Children's Court of 'old' or 'expired' convictions continued to be provided for under the provisions of the CW Act. The provisions of the CW Act dealing with old or expired convictions (convictions which are deemed not to be convictions) diverge from the spent convictions scheme under the SC Act. First, the CW Act provides for convictions to expire (be deemed not to be convictions) automatically after the specified period has elapsed. In contrast, the spent conviction scheme under the SC Act takes a different approach for adult offenders and provides for convictions to become spent by application to the courts or the Commissioner of Police: SC Act s 6 and s 7. Secondly, the period that must elapse before a child's conviction expires (be deemed not to be a conviction) is shorter than the period which must elapse before an adult's conviction may become spent. Thirdly, evidence of a conviction deemed not to be a conviction under CW Act s 40 is not admissible in court proceedings whereas there is no express equivalent limitation on the admissibility of evidence of spent convictions. These observations alone show that the rehabilitation of children or young offenders in relation to old convictions has received more comprehensive protection than in the case of old convictions of adults.
There is nothing to indicate that the insertion into the CW Act of s 40(2a) by the AASC Act had the effect of lessening the protection given to children convicted in children's courts before the amendment rather than having the effect of enlarging the protection given to children by extending to them the antidiscrimination and other protections given by SC Act pt 3. The court should not construe legislation that resulted from the introduction of a legislative package for the purpose of making 'provision for a person who has been convicted of an offence against the law of this State … and who has not re‑offended during a specified period to be rehabilitated by limiting the effects of the conviction' so as to extend rather than limit the effects of convictions of children convicted in children's courts and thereby reduce the opportunity to prevent juvenile convictions disrupting a child's adult life.
P (a child)
In P (a child), a juvenile, P, was convicted on his plea of guilty of burglary in the Children's Court of Western Australia. The relevant question was whether P was a 'repeat offender' as defined in s 400(3) of the Criminal Code, so as to engage the mandatory sentencing provisions in s 401(4)(b). This in turn required the court to determine whether P 'was convicted of' relevant home burglary offences. While P had been convicted in the past of prior home burglary offences, the Court of Appeal held that s 189(2) of the YO Act applied such that those prior convictions were not to be regarded as convictions for the purpose of s 400(3) of the Criminal Code. The Court of Appeal held that s 4(3) of the Criminal Code Amendment Act (No 2) 1966 (WA) should be read together with YO Act s 189(2) with the effect that the 'conviction recorded at any time' referred to in the former Act does not encompass those excluded by the operation of s 189 of the latter Act. The court, consisting of Malcolm CJ, Ipp and Steytler JJ, in their joint judgment said that:
The terms of s 400(3) provide, as we have said, that a person is a repeat offender for the purposes of ch XXXIX only if it is proved that the offender 'committed and was convicted' of the relevant offences there referred to. Section 4(3) of the Amendment Act, in referring to 'convictions recorded at any time' cannot, in the absence of clear words, be taken to override the clear command of s 189 of the Young Offenders Act that a conviction falling within its provisions 'is not to be regarded as a conviction for any purpose' (598).
The Court did not expressly refer to YO Act s 189(9). However, the construction of YO Act s 189 advanced by the respondents in this case is inconsistent with the outcome of the decision of the Court of Appeal in P (a child).
Conclusion
The time for the appellant to apply for leave to appeal is extended, leave to appeal is granted, the appeal is allowed and the convictions will be set aside.