DN v The Commissioner for Police
[2012] WADC 130
•23 AUGUST 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DN -v- THE COMMISSIONER FOR POLICE [2012] WADC 130
CORAM: MCCANN DCJ
HEARD: 29 JUNE 2012
DELIVERED : 23 AUGUST 2012
FILE NO/S: CIVO 47 of 2012
BETWEEN: DN
Applicant
AND
THE COMMISSIONER FOR POLICE
Respondent
Catchwords:
Spent Convictions Act 1988 - Calculation of 'prescribed period' for qualifying to apply for successive convictions to be made spent - Construction of 'minor punishment' in s 11(5) - Whether reg 3 of Spent Convictions Regulations is retrospective in operation
Legislation:
Interpretation Act 1984, s 37(1)
Sentencing Act 1995 s 45
Spent Convictions Act 1988 s 3, s 6(2)(a), s 7(2), s 9, s 10, s 11
Spent Convictions Regulations 1992, reg 3
Result:
Objection to the competency of the application upheld
Representation:
Counsel:
Applicant: Mr C J Hair
Respondent: Mr J F Bennett
Solicitors:
Applicant: Northern Suburbs Legal Centre
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88
Bird v The Commonwealth (1988) 165 CLR 1
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1
Jackson v Chrisp [2012] WASCA 158
Maxwell v Murphy (1957) 96 CLR 261
Moray County Council v Maclean [1962] SLT 236; [1962] SC 601
Rizhao Steel Holding Group Co Ltd v Koolan Iron Pty Ltd [2012] WASCA 50
Rodway v The Queen (1990) 169 CLR 515
Santos v The State of Western Australia [2011] WASCA 216
MCCANN DCJ:
Introduction
On 11 April 2012 the applicant applied to the court for various serious convictions within the meaning of s 9 of the Spent Convictions Act 1988 (the Act) to be made spent. The respondent has objected to the competency of the application on the ground that the period prescribed for doing so by s 6(2)(a) of the Act has accrued.
For the following reasons I uphold the respondent's jurisdictional objection and rule that the application is premature and thus incompetent.
The applicant has applied for the following convictions to be made spent:
(a)two counts of aggravated burglary and commit an offence in a place, incurred on 10 January 1997 for which he was sentenced to 3 years imprisonment;
(b)two counts of breach of bond order, incurred on 10 January 1997 for which he was fined $1,000;
(c)stealing, incurred on 1 July 1996 for which he was fined $800;
(d)two counts of breach of probation, incurred on 11 June 1996 for which he received a $1,000 good behaviour bond;
(e)stealing, incurred on 16 November 1995 for which he was fined $400;
(f)receiving, incurred on 27 June 1995 for which he was fined $500;
(g)attempted fraud, incurred on 27 June 1995 for which he was fined $300;
(h)attempted stealing, incurred on 18 May 1994 for which he was fined $300 and had his motor driver's licence disqualified for six months;
(i)use of a false name, incurred on 15 February 1994 for which he was fined $1,500; and
(j)stealing, incurred on 8 May 1991 for which he was fined $800.
The convictions for aggravated burglary (the January 1997 convictions) satisfied the definition of 'serious conviction' provided for in s 9(1) of the Act. All of the other convictions met the definition of 'lesser convictions' provided for in s 10. However, pursuant to s 9(2) each of them is deemed to be a 'serious conviction' because it was not spent under the Act when the January 1997 convictions were incurred.
Subsequent to 10 January 1997 the applicant also incurred convictions in Western Australia as follows:
(a)one count of consuming liquor on premises, incurred on 16 December 1998 for which he was fined $80; and
(b)one count of offensive behaviour incurred on 16 December 1998 for which he was fined $150;
(c)one count of driving under the influence of alcohol incurred on 2 August 2000 for which he was fined $200 and disqualified from holding a motor driver's licence for two years (the 2000 conviction);
The legislation
The Act provides different procedures for applying to have 'serious convictions' (as defined in s 9) and 'lesser convictions' (as defined in s 10) made spent.
An application for a serious conviction to be made spent may be made at the time of conviction (Sentencing Act 1995, s 45) or to the court after a prescribed period has elapsed (s 6(2)(a) and s 7(2) of the Act). Pursuant to s 11 the prescribed period in the applicant's case is 10 years plus any period of imprisonment imposed for that conviction, regardless of the period actually served. Accordingly, and by reason of the January 1997 convictions, the prescribed period in the applicant's case was originally 13 years from 10 January 1997 (s 11(3)(a)).
However, that prescribed period was conditional upon the applicant not re‑offending other than in a 'minor' way. Sections 11(4) and (5) provide as follows (emphasis added):
(4)Notwithstanding subsections (2) and (3), if at the time when a person incurs a conviction, including a conviction for an offence against Commonwealth law or the law of another State or of a Territory, (in this subsection called the latest conviction) he has any other conviction that is not a spent conviction (in this subsection called any previous conviction) ‑
(a)the prescribed period that has elapsed for any previous conviction shall be disregarded and the prescribed period for the latest conviction and any previous conviction shall ‑
(i)be the longer or longest of the prescribed periods for all those convictions; and
(ii)that period shall commence to run from the time of the latest conviction;
(5)In subsection (4) the latest conviction does not include a conviction for which no punishment, or only minor punishment, was imposed.
'Minor punishment' is defined by s 3 of the Act as 'a fine not exceeding $100 or such amount as may be prescribed'. No amount was prescribed until 4 November 2005 when an amount of $500 was prescribed pursuant to reg 3 of the Spent Conviction Regulations 1992.
The jurisdictional issue
The applicant's fine for the 2000 conviction exceeded the $100 maximum for 'minor punishment' which applied for the purposes of s 11(5) at that time. As such, the respondent contends that the 2000 conviction became 'the latest conviction' for the purposes of s 11(4) and that the prescribed period of 13 years commenced to run from the date of that conviction, ie, from 2 August 2000 until 2 August 2013.
The applicant disputes that contention on the ground that the $200 fine which he received for the 2000 conviction ceased to exceed 'minor punishment' for the purposes of s 11(5) when the amount (ie, the definition) of 'minor punishment' was increased to $500 on 4 November 2005. Accordingly, he contends that the prescribed period of 13 years expired on 10 January 2010.
The issue for me to determine is whether the 2005 amendment to the statutory definition of 'minor penalty' applies to punishments imposed for convictions which were incurred before that amendment came into force.
Analysis
Both counsel provided me with excellent written submissions, for which I am very grateful. There was little or no dispute between them in relation to the applicable principles. Rather, they differed as to the application of those principles to the construction of the Act.
There are both statutory and common law presumptions to the effect that a statute which changes the law should not affect accrued rights or liabilities which the law had defined by reference to past events, unless the contrary intention appears from the amending statute with reasonable certainty. (Santos v The State of Western Australia [2011] WASCA 216 [62] (Buss JA, McLure P concurring); Rodway v The Queen (1990) 169 CLR 515, 518 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ)).
Some general principles were summarized in Maxwell v Murphy (1957) 96 CLR 261, 267, (Dixon CJ) which was cited in Rizhao Steel Holding Group Co Ltd v Koolan Iron Pty Ltd [2012] WASCA 50 [189] (Murphy JA):
Unless the language used plainly manifests in express terms or by clear implication a contrary intention ‑
(a) A statute divesting vested rights is to be construed as prospective.
(b)A statute, merely procedural, is to be construed as retrospective.
(c)A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.
Section 37(1) of the Interpretation Act 1984 provides as follows:
(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears –
(a)revive anything not in force or existing at the time at which the repeal takes effect;
(b)affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal.
The word 'repeal' in this subsection includes an amendment by which one provision is substituted for another (Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 11 [36] – [39] Gummow, Haynes and Hayden JJ).
One should not apply too narrow a concept of an accrued right. Otherwise the essential justice of the rule against a retrospective operation of a law that affects rights and liabilities would be eroded. It is more appropriate to use the word 'entitlement' rather than 'right' in the strict legal sense of that word. The word 'entitlement … indicates that what is involved may fall short of an immediately enforceable legal right in the strict sense' (Santos [157] Hall J).
However, an accrued right (in the broad sense of an entitlement) must be distinguished from a mere hope or expectation that a right will be created. (Santos [157]; Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88 [22] and [33] (Steytler P)).
An accrued right 'means some specific right' which in one way or another has been acquired by an individual and which some persons have got and others have not got, but the presumption against retrospectivity is not concerned with preserving 'abstract rights'. It applies only to the specific rights (ie, entitlements) given to an individual on the happening of one or other of the events specified in the statute (Barminco [20] ‑ [21] Steytler P).
If a person has taken steps to put statutory machinery in motion, the statutory proceedings may only have reached the stage by the date of repeal when the applicant has a hope or expectation of acquiring a right. As such, there would be no accrued right. However, when statutory machinery has been set in motion and the statute is afterwards repealed, there may be a right although at the date of repeal further steps are still necessary to prove that the right did in fact exist at the date of repeal and even to prove the measure of the obligation incurred. Further, a right can in certain circumstances be accrued or acquired even though at the date of repeal it is of a contingent nature (Barminco [22] (Steytler P) citing Moray County Council v Maclean [1962] SLT 236; [1962] SC 601, 606 (Lord Hunter)).
In my opinion an applicant merely has an entitlement to apply for a spent conviction at the expiry of such prescribed period as applies to him. Section 6(2)(a) of the Act stipulates that 'an application … may not be made … until the prescribed period … has expired', that is to say, the right comprises the making of an application. (See Jackson v Chrisp [2012] WASCA 158 [123] Murphy JA regarding the substantive nature of a statutory right of appeal.) Moreover, relief under the Act is entirely discretionary and must be exercised having regard to a number of criteria which are referred to in s 6(4) of the Act. As such, there is no right to the making of a spent conviction order either. Mr Hair, for the applicant, properly conceded all of this to be the case.
Mr Bennett, for the respondent, went further and submitted that immediately prior to reg 3 coming into force the applicant had no more than a hope or expectation that he would qualify to bring an application at the expiration of the prescribed period. I accept that submission for the following reasons.
In my opinion the statutory purpose of the legislation is to facilitate a review of an offender's criminal record if that person has, as a matter of fact and law, been rehabilitated in a fashion which is prescribed by the Act, namely by leading a relatively law‑abiding life for the prescribed period appropriate to that person. Its 'machinery' cannot otherwise be invoked. No entitlement of any kind, whether it be choate, inchoate or even abstract comes into being simply upon the prescribed period elapsing. The right to bring an application is conditional upon the rehabilitation of the applicant (as contemplated by the Act) having occurred and/or been maintained and not just the effluxion of time.
Mr Hair did not strongly contend otherwise. Instead, he relied on a number of other propositions.
First, he submitted that reg 3 (ie, the $500 amount prescribed by the Regulations) does not affect rights from which it follows, he submitted, the regulation is purely procedural in nature. As such, he submitted, reg 3 should be presumed to have retrospective effect in accordance with par (b) of the dicta of Dixon CJ in Maxwell.
At face value that is an attractive argument which benefits from its ostensible synergy with the respondent's position. However, in my opinion it involves a non sequitur because the definition of 'minor punishment' does affect or condition a right or entitlement, because it affects or conditions the prescribed period and thus the right to make an application as and from a particular date. It matters not whether the original definition in the Act (a fine not greater than $100) or the substituted definition provided by reg 3 (a fine not greater than $500) is used. Therefore par (b) of the dictum in Maxwell is not applicable. Indeed, none of those paragraphs is applicable.
Next, Mr Hair turned to the principles relating to statutes of limitation. He submitted that the prescribed period could be likened to a 'true' statute of limitation which has traditionally been classified as procedural in nature (and thus retrospective). He cited the following passage from Santos at [67] (Buss JA):
There is a well-established distinction between a true statute of limitations, which operates to bar a right of action independently existing, but does not extinguish that right, on the one hand, and a limitation period annexed by a statute to a right which it creates, on the other. … A true statute of limitations has been classified as procedural in nature. By contrast, a limitation period which creates a right of limited duration so that, after the expiry of the prescribed time, the right ceases to exist for any purpose, has been classified as substantive in nature.
Mr Hair submitted that, notwithstanding that the Act provides for a time period which must expire before an entitlement can be accessed rather than a period during which it must be accessed, the scheme still operates as a 'true' statute of limitation because it bars the bringing of an application but does not extinguish the entitlement to make the application.
I do not accept that submission because it wrongly predicates that the right created by the Act (to make an application for a spent conviction) and the prescribed period (ie, the 'limitation period') exist independently of each other. I have already explained why that is not so (at [27]). The prescribed period does not operate as a limitation period at all.
Mr Hair sought to draw support from the decision of the High Court in Dossett in which it was held that amendments to the Workers' Compensation and Rehabilitation Act 1981 (as that Act was then known) which impacted on certain existing constraints on awards of common law damages were not applicable to Mr Dossett.
In my opinion Dossett is distinguishable because in that case the relevant amendments encroached upon existing common law and statutory rights, namely (respectively) the claimant's alleged cause of action for damages in tort and his right to apply to the court for leave to sue to recover those damages. Also, the claimant had already invoked the requisite statutory machinery when the amendments came into force.
In general support of his submissions, Mr Hair pointed to the beneficial nature of the Act. He submitted, correctly, that the purpose of the legislation is beneficial because it is intended to enable persons of good behaviour who have been previously convicted of offences to be relieved of some of the negative effects of their convictions.
I was initially attracted to this proposition, notwithstanding its relatively subordinate role in Mr Hair's submissions. Ultimately my task is to construe the legislative scheme, as to which maxims, presumptions or aids to construction cannot be decisive in their own right. With that in mind, together with the fact that the $100 definition of minor punishment had remained in force since 1988, I pondered the hypothesis that the statutory purpose of the making of reg 3 was to give effect to a contemporary appreciation in 2005 as to what ought to be considered as good behaviour at the time of the making of any subsequent application. After all, a threshold of $500 might be regarded as modest and its application in those terms would not alter the fact that an applicant for a spent conviction would still be obliged to demonstrate at least 10 years of good behaviour. Moreover, the amendment did not adversely encroach on any potential applicant's existing hopes or expectations. This hypothesis is arguably supported by yet another aid to construction, namely the principle that beneficial or remedial legislation should be given a beneficial construction (or, at least, not be construed too narrowly) in the event of a difficulty or ambiguity in its construction (Bird v The Commonwealth (1988) 165 CLR 1, 6 Mason CJ, Brennan and Toohey JJ).
However, I have come to the view that there is an insuperable barrier to this approach to construction, namely the express provisions of the Act. Regulation 3 only amended the definition of a 'minor offence'. It did not in any way impact upon the wording or construction of the other provisions of the Act. In that regard, the words 'at the time' in the phrase 'at the time when a person incurs a conviction' and the words 'from the time' in the phrase 'from the time of the latest conviction' in s 11(4) entail that the calculation of the prescribed period is intended to commence at the time that the putative 'latest conviction' is incurred. Thus, if a person incurs a conviction and incurs a penalty other than a 'minor penalty' and 'at the time' has another or other convictions that have not been spent, then the prescribed period is to be calculated 'from the time' of the latest conviction. In my opinion the definition of 'minor punishment' in s 11(5) must be applied consistently with that intention. At the time that the 2000 conviction was incurred the definition of 'minor punishment' predicated a fine not exceeding $100.
Therefore, in my opinion there is no ambiguity or other difficulty which justifies recourse to the principle in Bird. In any event, the beneficial objectives of the legislation are not necessarily thwarted by not construing reg 3 retrospectively. Some benefit of reg 3 has still accrued to the applicant and others in his position because of the liberalisation of the definition of 'minor punishment' for that part of their prescribed period as falls after 4 November 2005.
Conclusion
In my opinion the effect of reg 3 was to amend the statutory pre‑condition for the creation of the right or entitlement to bring an application for a spent conviction under the Act. That amendment was not procedural but directly impacted on the factual and legal qualifications for the accrual of the right or entitlement. As such, there are no maxims or aids to construction, or presumptions, which would justify a retrospective operation for reg 3.
In my opinion based on the true construction of s 11 itself, the prescribed period must be calculated in this matter in accordance with the legislation which applied when the 2000 conviction was incurred.
Therefore, the amendment of the definition of 'minor punishment' effected by reg 3 only affected the calculation of the prescribed period in the applicant's case after 4 November 2005. I find that the prescribed period in his case runs until 2 August 2013 unless he incurs a conviction in the meantime and is punished other than by a fine not exceeding $500.
It follows that the applicant's application under the Act is incompetent and must be treated as a nullity ab initio. He will be at liberty to bring an application as soon as the prescribed period has elapsed. In other words, the prohibition on an unsuccessful applicant bringing a fresh application within two years provided for in s 6(2)(b) of the Act is not applicable in this matter.
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