Edwards v Collins - [2018] WASC 119

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   EDWARDS -v- COLLINS [2018] WASC 119
CORAM:   JENKINS J
HEARD:   7 AUGUST 2017
DELIVERED          :   19 APRIL 2018
PUBLISHED           :   19 APRIL 2018
FILE NO/S:   SJA 1009 of 2017
BETWEEN:   LEIGH ANDREW EDWARDS
Appellant
AND
MARTIN PAUL COLLINS
First Respondent
DANIEL MOHAMMAD HASAN SIMPSON
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   JP W HEARMAN
File Number            :   DB 207 of 2015
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE T WATT
File Number            :   AL 2032 of 2015

Catchwords:

Criminal law - Appeal - Conviction for driving whilst disqualified - Appellant held a valid driver's licence at time of driving - Parties relied on incorrect information provided by justice of the peace - Miscarriage of justice

Criminal law - Appeal - Conviction for driving whilst disqualified - Driving occurred during period of disqualification imposed as part of the sentence for another driving offence which is to be set aside - Period of disqualification valid and enforceable at time of offence and conviction - No miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 11, s 12, s 14
Road Traffic (Authorisation to Drive ) Act 2008 (WA)
Road Traffic Act 1974 (WA), s 15, s 49(1)(a), s 49(1)(c), s 49(3)(c), s 51, s 75, s 97
Road Traffic Legislation Amendment Act 2012 (WA), s 11
Sentencing Act 1995 (WA), s 37, s 103, s 105

Result:

Appeal allowed, in part

Category: B

Representation:

Counsel:

Appellant	:	Mr D S Hunter
First Respondent	:	Mr G J Stockton
Second Respondent	:	Mr G J Stockton

Solicitors:

Appellant	:	Legal Aid (WA)
First Respondent	:	State Solicitor for Western Australia
Second Respondent	:	State Solicitor for Western Australia

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

Bardsley v The Queen [2004] WASCA 251
Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220; [1935] ALR 304
Dreja v The State of Western Australia [2012] WASCA 151
Lynch v Hargrave [1971] VR 99
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Re Culleton [No 2] [2017] HCA 4
Vella v The State of Western Australia [2006] WASCA 129
Wimbridge v The State of Western Australia [2009] WASCA 196

JENKINS J:

This is an appeal against the appellant's convictions in the Albany Magistrates Court on 17 September 2015 (the Milpara conviction) and in the Donnybrook Magistrates Court on 14 December 2015 (the Mumbalup conviction).[1] Each conviction is for the offence of driving whilst not being authorised to do so and when the offender's licence is disqualified contrary to the Road Traffic Act 1974 (WA) (RTA) s 49(1)(a) and s 49(3)(c).
[1] I will refer to the relevant charges, convictions and sentences by the name of the place where the relevant offences were said to have occurred.

Ground of appeal

The proposed ground of appeal is:
The convictions of the appellant for two offences of driving under suspension ... are convictions which the appellant cannot in law be guilty of due to the convictions being void ab initio.
Particulars
a.Both the aforementioned convictions were dependent on the validity of an incorrect and invalid three month licence suspension imposed by Justices of the Peace at the Collie Magistrates Court on 27 May 2015.
b.The invalid and incorrect driver's licence suspension imposed by Justices of the Peace at the Collie Magistrates Court on 27 May 2015 was corrected and set aside pursuant to s 37 of the Sentencing Act 1995 at the Collie Magistrates Court on 13 July 2016.
c.The correction and setting aside of the invalid three month driver's licence suspension imposed by Justices of the Peace on 27 May 2015 at the Collie Magistrates Court pursuant to s 37(3a) of the Sentencing Act 1995 takes effect from when it was originally imposed, being 27 May 2015.
An appeal may be made to a single judge from the decision of a magistrate on the grounds that the court:
(a)made an error of law or fact, or both law and fact;
(b)acted without or in excess of jurisdiction;
(c)imposed a sentence that was inadequate or excessive;
or on the ground that there has been a miscarriage of justice.[2]
[2] Criminal Appeals Act 2004 (WA) s 8.
At the time the presiding magistrates imposed the convictions that are the subject of this appeal, no errors of law or fact were made, the magistrates did not act without or in excessive of jurisdiction and they did not impose sentences that were inadequate or excessive. If the appellant is to succeed in relation to the appeal, it has to be shown that one or both of the convictions constitute a miscarriage of justice.[3] I will proceed on the basis that this is the ground on which leave to appeal is sought.
[3] Dreja v The State of Western Australia [2012] WASCA 151 [5] ‑ [6].

Extension of time

An appeal against a conviction in the Magistrates Court cannot be commenced later than 28 days after the date of the decision unless the court orders otherwise.[4] The appeal notice was lodged on 9 February 2017. Therefore the appeal was 13 months out of time in the case of the conviction recorded on 14 December 2015 and 16 months out of time in the case of the conviction imposed on 17 September 2015.
[4] Criminal Appeals Act s 10(3).
An application for an extension of time within which to appeal, where there has been a lengthy delay in instituting the appeal will not be granted by merely showing that there are reasonable prospects of demonstrating that the conviction was a miscarriage of justice. Something more has to be shown, otherwise there would be no practical consequence ever flowing from the failure to appeal within time. What more has to be shown cannot be defined exhaustively but relevant factors may include that the conviction had serious consequences and that there was no prejudice to the respondent. Other relevant factors may include the length of the delay, the reasons for the delay and the strength of the appellant's case.[5]
[5] Bardsley v The Queen [2004] WASCA 251 [97] ‑ [114]; Wimbridge v The State of Western Australia [2009] WASCA 196.
The respondents accept that there is no prejudice to them if an extension of time is granted. Before I determine whether an extension of time ought to be granted I must consider the merits of the appeal.

Leave to appeal

The appellant requires leave to appeal on the proposed ground of appeal. If the ground of appeal has reasonable prospects of succeeding, I ought to grant leave to appeal on that ground. Therefore it is necessary for me to consider the merits of the proposed ground of appeal in relation to each conviction under appeal before I decide whether to grant leave to appeal.

Details of proceedings

The Collie conviction

On 27 May 2015, the appellant was convicted in the Magistrates Court at Collie upon his plea of guilty of the following charges:
(1)on 25 February 2015 at Collie, he drove a vehicle on a road, namely Preston Road, whilst it had on it a number plate other than the one issued for that vehicle contrary to the RTA s 97(2)(f)(iii);[6] and
(2)on 25 February 2015 at Collie, being the owner of a vehicle bearing registration plates 4352WA drove it on a road, namely Preston Road, while there was not a valid vehicle licence granted or issued for the vehicle as required by the RTA s 15(1), contrary to the RTA s 15(3)(E).[7]
[6] The RTA s 97 was deleted on 27 April 2015.
[7] The offence was created by the RTA s 15(3). I do not know what 'E' in the prosecution notice referred to.
There was no penalty provided in s 97 for an offence against that section. Thus the maximum penalty was 32 pu[8] as stated in the RTA s 107 for offences for which no other penalty was provided. The RTA did not contain any power to cancel a full driver's licence or to disqualify an offender from holding or obtaining a driver's licence as part of a sentence for an offence against the RTA s 97.
[8] Penalty units.
The RTA s 15(4) stated that the maximum penalty for an offence against s 15 was 10 pu. The RTA did not contain a power to cancel a driver's licence or to disqualify an offender from holding or obtaining a driver's licence as part of a sentence for an offence against the RTA s 15.
The appellant was fined $100 on each of the Collie offences. One of the two justices of the peace (JP) who constituted the court at the time of the sentencing told the appellant that he would 'lose' his 'licence for three months under s 51'. He was told also that he was not allowed to drive home and that he was not to drive his car.[9]
[9] ts 4 ‑ 5.
This period was recorded on the Collie prosecution notice and in police records as a three‑month disqualification order which related to the offence against the RTA s 97 of driving with a false number plate.
The parties agree that the JP's reference to s 51 was a reference to the RTA s 51. Section 51 was deleted on 27 April 2015 by the commencement of the Road Traffic Legislation Amendment Act 2012 (WA) s 11. Prior to its deletion, RTA s 51(1) and (2) provided that where the holder of a provisional driver's licence was convicted of an offence under RTA s 97:
(1)the provisional licence was cancelled 'by operation' of s 51(1); and
(2)the offender was disqualified from holding or obtaining a driver's licence 'for any period for which he is so disqualified by the court' or 'for a period of 3 months from the date of his conviction ... whichever period terminates later'.
By its terms, s 51 did not apply to the appellant's offence against the RTA s 15(3). It only applied to an offence against the RTA s 97 if the offender held a provisional licence, which the appellant did not. The appellant held a heavy vehicle driver's licence which expired on 29 May 2017. In any event, when the Collie convictions and sentences were imposed the RTA s 51 had been deleted.
The appellant's case on appeal is that the three‑month disqualification referred to by the JP was part of the Collie sentence for the offence against s 97. The respondent's case is that it is unclear whether it was part of the Collie sentence. For the following four reasons I am of the opinion that the three‑month disqualification was not part of the Collie sentence.
First, if the RTA s 51 had applied to the facts of this case, a three‑month disqualification period was, like the cancellation of the offender's licence, a consequence of the operation of the statute and would not have been an order made as part of sentence. Secondly, the JPs needed statutory power, independent of the RTA s 51 to impose a licence disqualification period of any length on the appellant as part of the sentence imposed for the offence against the RTA s 97. This is because s 51 did not grant such a power. It merely stated what the period of disqualification would be if a court imposed a disqualification order. Thirdly, although there was power in the Sentencing Act 1995 (WA) s 105(1) to impose a disqualification order as part of the sentence for the offence against the RTA s 97, the JPs did not purport to exercise that power. Fourthly, the JP's statement that the appellant would lose his licence under the RTA s 51 was an incorrect statement of the effect of the RTA s 51 and not the imposition of a three‑month disqualification order as part of the sentence.
As the RTA s 51 had been deleted as of 27 May 2015 and the statutory criteria for its operation before it was deleted did not exist, it did not apply to the Collie convictions so as to cancel the appellant's licence and disqualify him from holding or obtaining a driver's licence for three months.

The Milpara conviction

On 18 August 2015, the appellant was charged that on 12 August 2015 at Milpara he drove a Toyota Hilux utility on Chester Pass Road whilst not being a person authorised by pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and whose authority to drive was at the time suspended, contrary to the RTA s 49(1)(a) and s 49(3)(c).[10]
[10] Prosecution Notice AL 2032 of 2015.
On 17 September 2015 the appellant, who was unrepresented, entered a guilty plea to the Milpara charge in the Magistrates Court at Albany. The appellant was convicted of the Milpara charge and placed on a six‑month community‑based order (CBO) with 80 hours community service work. He was also disqualified from holding or obtaining a driver's licence for nine months, cumulative. The statutory penalty for the offence included a licence disqualification order of not less than nine months and not more than three years.[11]
[11] RTA s 49(1).
On 23 December 2015, the appellant appeared in the Magistrates Court at Albany and it was alleged that he had breached the CBO. The CBO was cancelled and he was fined $1,000. There does not seem to have been any alteration to the nine month disqualification order.
Although there are no transcripts for the appellant's appearances in court in relation to the Milpara charge, it is not in dispute that the charge arose from the appellant driving during the three‑month loss of licence referred to by the JP during the Collie sentence.

The Mumbalup conviction

On 17 November 2015, the appellant was charged that on 16 November 2015 at Mumbalup he drove a motor vehicle on a road, namely Donnybrook Boyup Brook Road, whilst not being a person authorised by pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and whose authority to drive was at the time suspended contrary to the RTA s 49(1)(a) and s 49(3)(c).[12]
[12] Prosecution Notice DB 207 of 2015.
On 14 December 2015 the appellant was convicted in his absence in the Magistrates Court at Donnybrook of the Mumbalup charge and fined $3,000. He was disqualified from holding or obtaining a driver's licence for 12 months cumulative from 14 December 2015.
It is not in dispute that the Mumbalup charge arose from the appellant driving during the period of the nine‑month disqualification order imposed as part of the Milpara sentence.

The Collie correction of sentence

On 22 June 2016, the appellant made an application for correction of the Collie sentence pursuant to s 37 of the Sentencing Act 1995 (WA). The reason he sought the correction of sentence was that the three‑month loss of his licence which was referred to during the Collie sentencing had been imposed on the basis that he was the holder of a provisional licence when he was in fact the holder of a full licence.
The application was heard in the Magistrates Court at Collie on 13 July 2016. The prosecutor acknowledged that the RTA s 51 did not apply because the appellant had a full licence. The presiding magistrate noted that the JPs had a power to make an order for disqualification under the Sentencing Act but she said that it would be extraordinary for them to have exercised that power. There was no further discussion about the merits of the application. Her Honour purported to delete the three‑month disqualification order from the Collie sentence (the Collie correction of sentence).

The application to set aside the Milpara and Mumbalup convictions

On 30 September 2016, the appellant applied to the Magistrates Court to set aside the Milpara and Mumbalup convictions and the disqualification orders imposed as part of them. The appellant's counsel has deposed that the magistrate hearing that application was of the view that he had no power to set aside the convictions and licence suspensions. However, the transcript of proceedings before the magistrate on 23 December 2016 does not disclose that the magistrate dismissed the application. Rather, it appears to have been adjourned with a further charge of driving without a motor driver's licence.
Subsequent to that adjournment, the appellant's counsel set about obtaining the necessary transcripts before lodging the appeal notice.

The issues on the appeal

The parties argued the appeal on the basis that the issue for determination is whether the Collie correction of sentence which purported to delete a three‑month loss of licence referred to by the JP during the Collie sentence means that the Milpara conviction and/or the Mumbalup conviction should be quashed because at the time of the commission of those offences the appellant held a valid driver's licence which had not been cancelled or suspended.
However, on my analysis of the facts and law a three‑month disqualification order was never part of the Collie sentence. The JP incorrectly told the appellant that he had lost his licence for three months under the RTA s 51. However, for the reasons given earlier, that was not an accurate statement of the law.
Consequently, it is debateable whether the Collie correction of sentence should have been made. The court and police records needed to be amended but the sentence imposed by the JPs being a fine only was sound at law.[13]
[13] It is unnecessary for me to determine the scope of the Sentencing Act s 37 given my determination that a three‑month disqualification was not part of the Collie sentence.
The issues on the appeal are whether:
(1)the Milpara conviction ought to be set aside because on the date alleged in the Milpara charge the appellant held a valid driver's licence; and
(2)the Mumbalup conviction ought to be set aside because on the date alleged in the Mumbalup charge the appellant would have held a valid driver's licence were it not for the nine‑month disqualification order imposed as part of the Milpara sentence, which itself was a miscarriage of justice.

Issue 1 - the Milpara conviction

The appellant's position is that he could not be guilty of the Milpara offence as a matter of law because the three‑month disqualification order on which the charge was based was invalid because of the retrospective effect of the Collie correction of sentence.
A miscarriage of justice does not occur simply because evidence on appeal shows that the appellant is not guilty of an offence to which they pleaded guilty. The reason why this is so was explained by Dawson J in Meissner v The Queen.[14] His Honour said:[15]
It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.
[14] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132.
[15] Meissner v The Queen [19].
The limited circumstances in which an appeal against a conviction based on a plea of guilty will be allowed because there has been a miscarriage of justice were considered by Steytler P in Vella v The State of Western Australia.[16] His Honour said:[17]
The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like ... However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively stated (citations omitted).
[16] Vella v The State of Western Australia [2006] WASCA 129.
[17] Vella v The State of Western Australia [26].
I am satisfied that the Milpara conviction ought to be set aside because during the Collie sentencing the appellant was incorrectly told by the JP that under the RTA s 51 he had 'lost' his licence for three months from 27 May 2015. This misinformation was then recorded by the court, the police and probably the licensing authority. I accept that this misinformation induced the respondent to charge the appellant with the Milpara charge and the appellant to believe that he was guilty of it. It no doubt induced the appellant to plead guilty to the charge, even though as at the date of the Milpara offence was alleged to have been committed the appellant held a valid driver's licence. In these circumstances it would be a miscarriage of justice to allow the conviction to remain.

Issue 2 - the Mumbalup conviction

The appellant submits that if the Milpara conviction is set aside, the Mumbalup conviction should also be set aside on the basis that its validity relies on the nine‑month disqualification order that was incorrectly recorded as being part of the Milpara sentence. The appellant submits that the Mumbalup conviction is 'nugatory and of no effect'.
However, the Milpara and Mumbalup convictions are distinguishable in that the Milpara conviction resulted from the JP's erroneous statement of the law at the time of the Collie sentence. I have found that the appellant could not be guilty of the Milpara offence because at the time he was said to have committed it he held a valid driver's licence. By contrast, the Mumbalup conviction is dependent on the nine‑month disqualification order imposed as part of the Milpara sentence. The Milpara sentence is a valid sentence until I make formal orders to 'set aside' the Milpara conviction and the sentence imposed for it.[18] The status and validity of the disqualification order imposed as part of the Mumbalup sentence depends on the application of the law relating to the effect of convictions and sentences which are later 'set aside' on appeal. Contrary to the appellant's case on appeal it does not depend on the construction of the Sentencing Act s 37.
[18] Criminal Appeals Act s 14(1)(c).
The meaning and effect of the phrase 'set aside' depends on its statutory context. The statutory context for the appeal against the Mumbalup conviction is the RTA and the Criminal Appeals Act.
The Milpara and Mumbalup convictions were imposed pursuant to the RTA s 49(1)(c). This section provides that for the offence of driving a motor vehicle whilst not authorised to do so and when the offender's licence is suspended, the court may order that the offender be disqualified from holding or obtaining a driver's licence for a period of not less than nine months and not more than three years. Relevantly, the RTA s 75(2) provides that where a person is disqualified from holding or obtaining a driver's licence by order of a court, any driver's licence held by that person shall be suspended so long as the disqualification continues in force and 'during the period of suspension shall be of no effect'. Thus, in the case of the Milpara conviction the appellant's driver's licence was 'of no effect' for a period of nine months after any previous disqualification order had concluded.
If the court gives leave to appeal a decision which includes a decision to make a disqualification order and until the appeal is concluded, any disqualification order 'in respect of a conviction that is subject of an appeal is suspended until the appeal is concluded'.[19]
[19] Criminal Appeals Act s 11(3).
Any time after an appeal is commenced the court may suspend a disqualification order.[20] Neither the Milpara or Mumbalup disqualification orders were suspended by force of statute or an order of the court. They had both concluded by the time the appeal was commenced.
[20] Criminal Appeals Act s 12.
My power on appeal to set aside a disqualification order imposed as part of the Milpara and Mumbalup sentences is contained in the Criminal Appeals Act s 14(1) which states relevantly:
(1)In deciding an appeal, the Supreme Court may do one or more of the following -
…
(b)allow the appeal;
(c)set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision;
…
(i)make any other order it thinks fit.
Section 14(2) states:
Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
As to the effect of orders made under s 14(1)(c), the Criminal Appeals Act s 15 states:
(1)The decision of the Supreme Court, or the decision of the court of summary jurisdiction as varied by the Supreme Court, ... has effect as if it were the decision of the court of summary jurisdiction, and may be enforced accordingly.
…
(3)When an appeal is concluded, any warrant or other process that was suspended, and any thing the doing or operation of which was suspended under section 11, or under an order made under section 12, again has effect, subject to any order of the Supreme Court.
As I have already stated, the Criminal Appeals Act s 11 and s 12 do not apply to this appeal. There are no other relevant provisions in the Criminal Appeals Act.
This statutory context can be contrasted with a disqualification order imposed under the Sentencing Act pt 15, which provides the general power to impose a disqualification order as part of a sentence for a motor vehicle offence. The Sentencing Act s 103(2), which is contained in pt 15, states that a disqualification order imposed under the Sentencing Act ceases to be in force when its term ends, or when a court cancels it, whichever happens first.
The meaning of the Criminal Appeals Act s 14(1)(c) was considered in Dreja v The State of Western Australia. In Dreja, the appellant was convicted in the Magistrates Court of an offence and sentenced to 7 months' imprisonment which was suspended for 18 months. Within the period of suspension, the appellant committed breaching offences. He was fined on two occasions for breaching the suspended imprisonment order. Subsequently an appeal against the suspended imprisonment order was allowed, the sentence of suspended imprisonment was set aside and a fine was imposed in lieu. The appellant then appealed against the two fines imposed for breaches of the suspended imprisonment order. Pullin JA (Newnes & Mazza JJA agreeing) said:[21]
[21] Dreja v The State of Western Australia [12] ‑ [17].
The expression 'set aside', like the word 'quash', has a range of meanings. It may mean to 'put to one side' or 'discard from use', or it may mean 'annul or quash': Macquarie Dictionary. That the word 'quash' has a range of meanings was noted in Roads and Traffic Authority of New South Wales v Papadopoulos [2010] NSWSC 33; (2010) 77 NSWLR 189, where James J said at [50]:
'The decision in Hancock v Prison Commissioners shows that the word "quash" in a legal context does not necessarily mean to make null and void ab initio and can simply mean to make null and void for the future. What interpretation should be given to the word in particular legislation depends on the terms of the legislation, the context in which the word "quash" is used and the subject matter to which the word must be applied.'
Section 14(1) authorises the court to make orders which set aside orders made by courts of summary jurisdiction by annulling or quashing the orders ab initio or by setting them aside prospectively. What is intended will be ascertained by the terms of the order taking into account the orders which are being set aside.
Thus, in a case where under s 14(1) a judge on appeal sets aside a judgment of conviction, the order in context will mean that the judgment is set aside ab initio: see Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220; Lynch v Hargrave [1971] VR 99. This is because the order could have no effect other than to annul the conviction because the judgment of conviction was complete on the date it was made.
On the other hand, an order imposing a sentence of suspended imprisonment has ongoing effect. It is executory or partly executory until the order is spent. If the court orders a sentence of suspended imprisonment to be set aside then, in the absence of any indication that it was intended to be an order setting the sentence aside ab initio, the order takes effect to nullify the sentence only from the date of the setting aside order. In Hancock v Prison Commissioners [1960] 1 QB 117 the court had to consider the effect of an order made under s 4(3) of the Criminal Appeal Act 1907 (UK) which relevantly provided:
'On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentenced passed at the trial, and pass such other sentence.'
This provision does not correspond in its conferral of power with s 14(1) of the Criminal Appeals Act (WA). The latter section authorises the court to set aside sentences of imprisonment but it also authorises the appeal court to set aside convictions. The words 'set aside' cannot therefore be read to mean only to set aside prospectively.
Winn J in Hancock referred to s 4(3) of the Criminal Appeal Act 1907 (UK) and said:
'When one finds those words in the section and considers the context in which they are used and the subject‑matter to which those words must be applied, one is inevitably driven to the conclusion that the word "quash" is not there used in the sense in which the Shorter Oxford English Dictionary tells me that it often is used, namely, 'to annul', 'make null or void', but is used in the less drastic meaning that the former sentence is by the order of the court rendered null and void at the moment when the Court of Criminal Appeal decides to substitute for it a different sentence, so as to make that earlier sentence null and void and of no effect for the future from that point of time onwards, but not so as to render it null and void ab initio, namely, as from the date when it was passed.'
In my opinion this reasoning, although correct in relation to the English provision, does not apply to the words 'set aside' in s 14(1) for the reasons just given above, ie s 14(1) authorises the 'setting aside' of convictions as well as sentences. The meaning of the words may have the more 'drastic' meaning of set aside ab initio, but it will all depend upon what is express or implicit in the particular order made. As already explained, in the absence of any indication to the contrary, an order setting aside a sentence of suspended imprisonment is an order nullifying that sentence only from the date of the setting aside order.
Counsel for the appellant in Dreja conceded that the order setting aside the suspended sentence did not set it aside from the time it was imposed. In effect he asserted that it was unfair or inappropriate that the appellant should have to pay the fines imposed for the breaches of the suspended imprisonment order because it had been set aside. Pullin JA said:[22]
That submission has no merit. While the suspended sentence order was in force it had to be obeyed ... The order … setting aside the suspended sentence only had prospective effect. There was no miscarriage of justice.
[22] Dreja v The State of Western Australia [19].
The appellant also relies on Lynch v Hargrave.[23] Mr Hargrave was convicted in his absence of a driving offence and his probationary licence was cancelled for three months (the original conviction/sentence). Three weeks later Mr Hargrave was charged with driving while subject to a cancelled licence. This charge was predicated on the validity of the original sentence. Just over two months later Mr Hargrave applied to have the original conviction set aside and reheard on the basis that he was unaware that he had been charged. The original conviction and sentence were set aside and ordered to be reheard.
[23] Lynch v Hargrave [1971] VR 99.
Subsequently, a magistrate dismissed the charge of driving while subject to a cancelled licence on the basis that the effect of setting aside the original conviction and sentence was to remove the effect of the original cancellation of the driver's licence from the time it was imposed.
The prosecution appealed the magistrate's dismissal. McInerney J in the Supreme Court of Victoria held that once a conviction was set aside, which according to the relevant statute it had to be once an application was made for a rehearing, any subsequent convictions based on the conviction the subject of the application had no effect. McInerney J held that the relevant accused is to be regarded as having his slate wiped clean in regard to convictions that occurred after and which depended upon a conviction where there was an application to set aside that conviction.
The facts in Lynch differ from the facts in this case because in Lynch, the original conviction was set aside before the charge of driving while subject to a cancelled licence was heard. Whereas in this case, when the Mumbalup conviction was recorded and the disqualification order was imposed, the Milpara conviction and sentence were valid and binding orders of the Magistrates Court.
In Commissioner for Railways (NSW) v Cavanough[24] the Full Court of the High Court said that the effect of the setting aside of a conviction by a statutory appeal has long been settled. Their Honours said:[25]
If the conviction were alleged in a pleading, it would be a good answer that there was no such record. It is 'utterly defeated and annulled'. Acts done according to the exigency of a judicial order afterwards reversed are protected: they are 'acts done in the execution of justice, which are compulsive'. And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided. For 'collateral acts executory are barred, but not collateral acts executed'. (citations omitted)
[24] Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220, 225; [1935] ALR 304, 305.
[25] Commissioner for Railways (NSW) v Cavanough (225).
In Re Culleton[26] the High Court recently considered the effect of the annulment of a conviction recorded in the Local Court of New South Wales. Whilst annulling a conviction may have a different effect to setting it aside, similar considerations arise and so it is helpful for me to consider what the High Court said in Re Culleton.
[26] Re Culleton [No 2] [2017] HCA 4.
The issue before the High Court was whether at the time of the 2016 federal election Mr Culleton, a candidate in the election, had been convicted and was subject to be sentenced for one year or longer. If so, he was incapable of being chosen as a senator.
Prior to the polling day for the election, Mr Culleton had been convicted in his absence in the Local Court of New South Wales of the offence of larceny. He was then liable to be sentenced to imprisonment for a maximum term of two years when he was brought before that court. On 2 March 2016 the Local Court issued a warrant for Mr Culleton's arrest in order to have him brought to the court for sentencing.
On 16 May 2016 the writ was issued for the election. Mr Culleton was nominated as a candidate. Polling day for the election was 2 July 2016.
The arrest warrant was executed on 8 August 2016 on which date the Local Court granted an annulment of Mr Culleton's larceny conviction pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) (the Appeal and Review Act) s 8. On 25 October 2016 the Local Court found Mr Culleton guilty of an offence of larceny or a like offence on his own plea but, without proceeding to conviction, dismissed the charge.
In the High Court Mr Culleton submitted that the effect of the annulment on 8 August 2016 was to render the conviction void from the time it was imposed and to restore the his previous status so that as at the dates of his nomination and polling day he had not been convicted and was not subject to sentence.
The plurality referred to the dictionary meanings of the term 'annulment' and then said:[27]
[T]hose definitions indicate only that the term may refer to more than one effect. For example, in The Oxford Companion to Law, it is said that '[i]f a judicial proceeding is annulled it is deprived of effect and rendered inoperative, either retrospectively or prospectively'. And in Sweet's A Dictionary of English Law, it is said:
'To annul a judicial proceeding is to deprive it of its operation, either retrospectively or only as to future transactions. Thus, annulling an adjudication in bankruptcy puts an end to the proceedings, without invalidating any acts previously done by the trustee or the Court, and makes the property of the bankrupt revert to him, unless the Court otherwise orders. (footnote omitted)'
Whether an annulment operates retrospectively or prospectively inevitably depends upon the statutory context in which the term is used. The argument for Senator Culleton ignores the terms of the Appeal and Review Act as they inform the meaning of annulment in s 10(1) of that Act. (footnotes omitted)
[27] Re Culleton [No 2] [24] ‑ [25] (Kiefel, Bell, Gageler & Keane JJ).
Their Honours then considered the specific provisions of the Appeal and Review Act. The plurality noted that it provided that when the decision was made to annul the relevant conviction, the Local Court must 'deal with the original matter as if no conviction … had been previously made'. In relation to the meaning of the words 'as if', the plurality said:[28]
As McHugh J said in Re Macks; Ex parte Saint, the phrase 'as if' serves to introduce a fiction or a hypothetical contrast: 'It deems something to be what it is not or compares it with what it is not.' Section 9(3) thus requires the Local Court to proceed upon the fiction that a conviction has not been made, because, in truth, the conviction was not a nullity from the beginning. (footnote omitted)
[28] Re Culleton [No 2] [27].
The plurality held that the Appeal and Review Act did not purport to retrospectively treat the conviction as if it had never occurred. Their Honours said:[29]
This case presents another example of what Windeyer J described in Cobiac v Liddy when he said that, by the exercise of a power to set aside a conviction, 'the court holds that the accused was not lawfully convicted and that the conviction ought not to stand, not that there never was in fact a conviction.'
Senator Culleton sought to rely upon this Court's decision in Commissioner for Railways (NSW) v Cavanough, where it was said that if a conviction is set aside on appeal, the conviction is void ab initio and the holder of an office 'cannot be deemed to have vacated his office' by reason of the conviction. However, that case was concerned with the effect of an order made upon an appeal, setting aside a conviction which was deemed to have the effect of vacating an office of employment. It has nothing to say about the operation of an annulment of a conviction under the Appeal and Review Act. (footnotes omitted)
[29] Re Culleton [No 2] [29] ‑ [30].
In a separate judgment, Nettle J said:[30]
Although the expressions '[o]n being annulled' and 'ceases to have effect' connote a sense of prospectiveness, it is apparent that the provision is retrospective in at least one sense. If it were not, a person whose conviction has been annulled would continue to be classified as a person who has been convicted for the purposes of assessing the person's convict status in future. The preferable view is that, despite a conviction ceasing to have effect only upon annulment, the annulment has retrospective operation to the extent that a person's convict status in relation to events occurring after annulment is that he or she is not to be regarded as having been convicted. Hence, if nomination in this case had not occurred until after the annulment of Mr Culleton's conviction, he would have had the capacity to nominate even if, at the date of his nomination, the charge of larceny remained pending. In the terms of s 9(3), it would be 'as if no conviction ... had been previously made'.
It should be accepted, however, that, since the necessary implication of a conviction ceasing to have effect upon annulment is that the conviction continues to have effect until and unless it is annulled, a conviction that is susceptible to annulment under the Appeal and Review Act continues to have effect up to the date of annulment. It should also be accepted that, since a conviction that is susceptible to annulment under the Appeal and Review Act continues to have effect up to the date of annulment, it remains determinative of the convicted person's convict status in relation to events occurring up to that point. (footnote omitted)
[30] Re Culleton [No 2] [61] ‑ [62].

I am satisfied that until the Milpara conviction is set aside by me, it is a valid conviction. The disqualification order imposed as part of the Milpara sentence continues to have effect until it is set aside. It had to be obeyed by the appellant until it is set aside or ceased to have effect by its effluxtion. The Mumbalup charge was laid and the appellant convicted and sentenced for it prior to the appeal against the Milpara conviction and sentence being instituted.
The Criminal Appeals Act s 14(1) gives the Supreme Court the power to set aside a conviction and sentence retrospectively or prospectively. As Pullin JA said in Dreja, the meaning of 'set aside' depends on what is express or implicit in the particular order made. The setting aside of the Milpara conviction and sentence does not mean that the Mumbalup conviction and sentence were invalid from their imposition or that they constitute a substantial miscarriage of justice.
There are strong policy reasons why sentences imposed by courts should be complied with and enforced unless and until they are set aside. The appellant was aware of the disqualification order made by the Magistrates Court as part of the Milpara sentence. He chose to drive in knowing breach of that order. He was charged with, and pleaded guilty to the Mumbalup offence. The appeal against the Milpara conviction and sentence was not commenced for another 14 months. Even though I will now set aside the Milpara conviction and sentence, the circumstances do not require me to set aside the Mumbalup conviction and sentence. The Mumbalup conviction was executed action to enforce the Milpara disqualification order. It was complete prior to the Milpara charge being set aside. It remains a valid executed action. It is not rendered invalid or a miscarriage of justice by me setting aside the Milpara conviction and sentence.

Conclusion

I grant an extension of time within which to appeal the Milpara conviction and sentence to 10 February 2017. I grant leave to appeal on the one ground of appeal. I set aside the Milpara conviction being the appellant's conviction in the Magistrates Court at Albany on 17 September 2015 for driving a vehicle whilst not being a person authorised to do so and whose authority to drive was at the time suspended. I set aside the sentence imposed for the Milpara offence.
I refuse an extension of time within which to appeal and leave to appeal in respect of the Mumbalup conviction in the Magistrates Court at Donnybrook on 14 December 2015 for the offence of driving a vehicle on a road whilst not being a person authorised to do so and whose authority to drive was at the time suspended.

Costs

If the respondents were successful, they sought an order for the costs of the appeal. Given that the respondents were partly unsuccessful and partly successful, it is my view that there ought to be no order for costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SD
RESEARCH ASSOCIATE TO JUSTICE JENKINS
19 APRIL 2018