Henshaw v Spooner
[2012] WASC 484
•11 DECEMBER 2012
HENSHAW -v- SPOONER [2012] WASC 484
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 484 | |
| Case No: | SJA:1012/2012 | 10 AUGUST 2012 | |
| Coram: | EM HEENAN J | 11/12/12 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | JONATHON HENSHAW HAYDEN NICHOLAS SPOONER DEJAN PAVLOVIC |
Catchwords: | Criminal law Appeals by prosecution Driving while not authorised to do so Road Traffic Act 1974 s 49(1) Young Offenders Act 1994 (WA) s 189 Significance of previous conviction while a 'young offender' Triggering offences |
Legislation: | Child Welfare Act 1947 (WA) repealed Road Traffic Act 1974 (WA) Young Offenders Act 1994 (WA) Spent Convictions Act 1988 (WA) |
Case References: | Anderson v Edwards [2003] WASCA 59 HA v Director of Public Prosecutions (NSW) [2003] NSWSC 347; (2003) 57 NSWLR 653 Hayden v Webb (1987) 5 MVR 283 P (a child) v The Queen (1997) 94 A Crim R 593 T v Bolitho [2010] WASC 30; (2010) 198 A Crim R 417 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
and
Prosecution Notice number PE 39918/2011 in the Magistrates Court of Western Australia at Perth
- Appellant
AND
HAYDEN NICHOLAS SPOONER
Respondent
and
Prosecution Notice number PE 40299/2011 in the Magistrates Court of Western Australia at Perth
- Appellant
AND
HAYDEN NICHOLAS SPOONER
Respondent
ON APPEAL FROM:
For File No : SJA 1012 of 2012
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T HALL
File No : PE 39918 of 2011
For File No : SJA 1013 of 2012
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T HALL
File No : PE 40299 of 2011
Catchwords:
Criminal law - Appeals by prosecution - Driving while not authorised to do so - Road Traffic Act 1974 s 49(1) - Young Offenders Act 1994 (WA) s 189 - Significance of previous conviction while a 'young offender' - Triggering offences
Legislation:
Child Welfare Act 1947 (WA) repealed
Road Traffic Act 1974 (WA)
Young Offenders Act 1994 (WA)
Spent Convictions Act 1988 (WA)
Result:
Appeals dismissed
(Page 3)
Category: B
Representation:
SJA 1012 of 2012
Counsel:
Appellant : Mr P Lochore
Respondent : Ms N Erlandson
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Legal Aid (WA)
SJA 1013 of 2012
Counsel:
Appellant : Mr P Lochore
Respondent : Ms N Erlandson
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Legal Aid (WA)
Case(s) referred to in judgment(s):
Anderson v Edwards [2003] WASCA 59
HA v Director of Public Prosecutions (NSW) [2003] NSWSC 347; (2003) 57 NSWLR 653
Hayden v Webb (1987) 5 MVR 283
P (a child) v The Queen (1997) 94 A Crim R 593
T v Bolitho [2010] WASC 30; (2010) 198 A Crim R 417
(Page 4)
1 EM HEENAN J: These two prosecution appeals by leave granted by order of Hall J of 2 April 2012 were directed to be heard together. Each involves the same distinct question of law regarding the proper interpretation of s 189(8)(d) of the Young Offenders Act 1994 (WA).
2 The common question of law arises in these circumstances. If a person commits an offence against s 64(1) of the Road Traffic Act1974 (WA) while under the age of 18 years and therefore while still a 'young person' for the purposes of the Young Offenders Act does that conviction mean that if that person more than two years later commits an offence against s 63(1) of the Road Traffic Act after turning 18 and therefore as an adult, the later offence constitutes a 'triggering offence' for the purposes of s 75(2a) of the Road Traffic Act resulting in the cancellation of his driver's licence? In both instances now before the court the respondent was charged with counts of driving while unlicensed because of the 'cancellation' of his driver's licence by operation of law following his conviction for the 'triggering offence'. In both instances, the respondent submitted that the purported cancellation of his driver's licence could not have been 'triggered' by the 'triggering offence' because the initial offence, committed while he was a young person, could not have been regarded as a conviction for that purpose because of the operation of s 189(2) of the Young Offenders Act.
3 When these two charges against the respondent alleging that he had driven while unlicensed came on for hearing in the Magistrates Court his Honour, Magistrate Hall, found that s 189(2) of the Young Offenders Act did apply and that the initial offence could not be regarded as a conviction for the purposes of s 75(2a) of the Road Traffic Act. His Honour therefore held that the 'triggering offence' was not a 'subsequent offence' and, accordingly, that the respondent's licence could not have been cancelled and was, therefore, still valid when he drove on the occasions upon which he was charged as an adult. As a result, his Honour dismissed those charges.
4 In each case the appellant appeals on the following grounds:
SJA 1012 of 2012
Grounds of appeal
1. The learned magistrate erred in acquitting the respondent of the charge of driving while not authorised to do so, contrary to s 49(1) of the Road Traffic Act1974 (WA), in that he erred in law in:
(a) concluding that:
- (i) s 189(8)(d) of the Young Offenders Act1994 (WA) is simply a mechanism of ensuring that a relevant cancellation or disqualification must still be imposed in circumstances where the court 'does not proceed to a conviction' under that Act;
(ii) by application of s 189(2) of the Young Offenders Act 1994 (WA), the respondent's conviction for an offence against s 64 of the Road Traffic Act1974 (WA) committed on 3 April 2003 could not be regarded as a conviction for the purposes of s 75(2a) of the Road Traffic Act1974 (WA); and
(iii) the respondent's driver's licence should not have been cancelled on 20 March 2009, and was consequently deemed not to have been cancelled as at 19 August 2011, when the respondent drove the motor vehicle on a road; and
- (b) failing to conclude that:
(i) cancellation of an offender's driver's licence by force of s 75(2a) of the Road Traffic Act1974 (WA) is a 'cancellation or disqualification that occurs by operation of any written law' for the purposes of s 189(8)(b) of the Young Offenders Act1994 (WA);
(ii) the respondent's conviction for an offence against s 64 of the Road Traffic Act1974 (WA) committed on 3 April 2003 could be, and is required to be, regarded as a conviction for the purposes of s 75(2a) of that Act; and
(iii) consequently, the respondent's driver's licence was correctly cancelled on 20 March 2009 and remained so as at 19 August 2011, when the respondent drove a motor vehicle on a road.
6 At the trial of the two charges before the learned magistrate the respondent admitted that he had been convicted of the initial offence and of the triggering offence. He also admitted driving a motor vehicle on the two occasions when he was charged with driving while unlicensed, that is, on 10 June and on 19 August 2011. By his counsel he also accepted that, but for the Young Offenders Act, his licence 'would be administratively cancelled by operation of law pursuant to s 75(2a) of the Road Traffic Act'
(Page 6)
- but maintained that the operation of the Young Offenders Act prevented this occurring by excluding from consideration the initial juvenile traffic offence for the purpose of counting prior offences under the provisions of the Road Traffic Act.
Reasons for decision in the Magistrates Court
7 The respondent faced three charges in the Magistrates Court, the two charges which were dismissed and which are now the subject of this appeal and a third different offence to which he pleaded guilty and for which he was later dealt with. That does not require further notice. Mr Spooner was represented by the duty counsel who had prepared written submissions in support of his client's contention that he was not guilty of either of these offences because of the operation of the Young Offenders Act. The learned magistrate therefore decided to adjourn the trial until the afternoon in order to complete the morning court list. It came on for hearing that afternoon and was dealt with entirely as a matter of law. As already stated, the respondent admitted the original and 'triggering' offences and that he was driving a motor vehicle on both occasions when he was charged with the offences then before the court but maintained that he was not guilty because of the operation of the Young Offenders Act.
8 After considering the submissions of the parties, including the respondent's written submissions which his Honour had received earlier in the day, the learned magistrate proceeded to give immediate oral reasons for his decision to dismiss these two charges. So far as is presently material, and after reciting the relevant background, his Honour said:
In this case the previous prescribed offence referred to is the 0.08 conviction in 2003. So the question in this trial is does section 189 apply? I find that s 189 is ambiguous and it is a poorly-worded section and there are subsections within the section which do, at first glance, seem to contradict the section. However, I have taken guidance by the authorities that have been provided. In particular the case of P (a child) (1997) CCA S Ct of Western Australia looked at this question of section 189, albeit in relation to whether someone was a repeat offender under section 400(3) of the Criminal Code.
So although it's not directly on all fours with the current case before me, it is considering a similar consideration, which is, when looking at 189, not just for the purpose of taking into account a prior conviction for the purposes of penalty, but can you look at a prior conviction for the purposes of regarding it as a prior offence? In that case the court clearly decided that you can't.
(Page 7)
- Perhaps of more assistance is the other case, of Brendon Eugene Anderson and Michael Bruce Edwards (2003) WASCA 59. This case did consider the operation of section 189, specifically in relation to the Road Traffic Act, and although it's considering driving under suspension as opposed to the operation of section 75(2)(a) [sic 75(2a)], I do find that the principles that it operates under can be applied in this case, and they are that section 189 does apply in relation to looking at traffic convictions, not just the convictions, but looking at traffic convictions in the context of determining whether a conviction when someone was a juvenile in circumstances where more than two years have elapsed can be taken into account as a prior conviction.
In respect of driving under suspension offences, it clearly determines that they can't be regarded as prior convictions. That being the case, whilst I note the prosecutor's point that section 189(2) states:
The conviction is not to be regarded as a conviction is not to be regarded as a conviction for any purpose except as provided in this section -
and that section 189(8) then goes on to state:
This section does not affect subsection (d), any cancellation or disqualification that occurs by operation of any written law in subsection (c), the right of a court to disqualify a person from holding or obtaining a driver's licence issued under the Road Traffic Act.
Although that does appear to be an exception, I agree with Mr Parker's [counsel for the respondent] point that that in fact is simply a mechanism of ensuring that a cancellation or disqualification must still be imposed, even though the court does not proceed to a conviction. So I accept the legislation is ambiguous, but on the authorities of the cases that have been provided I find that section 189 does apply as a matter of law, and that therefore the conviction in 2003 of 0.08 was not a prescribed [offence] to be had in respect of [75(2a)] and I accept that Mr Parker's argument that the magistrate in fact has not had regard to that prior offence by virtue of the fact that he has given the minimums under s 63; he has given the penalties for a first offence and not a subsequent offence.
So I find that the director-general's cancellation of Mr Spooner's licence, as a matter of law, was incorrect and that therefore Mr Spooner was not driving under cancellation and therefore I find the two charges of driving under cancellation, no authority to drive, cancel - I find both charges not proven. I enter judgments of acquittal in relation to those two charges …
Statutory provisions
9 The provisions of the Young Offenders Act which, in certain circumstances, curtail or diminish the significance of certain convictions
(Page 8)
- recorded by young offenders, are contained in s 189 of that Act. That section provides as follows:
189. Certain offenders to be regarded as not convicted
(1) This section does not apply to, or in relation to, a person convicted of murder, attempt to murder or manslaughter.
(2) If a young person is convicted of an offence and a period of 2 years has expired since -
(a) the discharge of any sentence imposed as a result of the conviction, or every sentence if more than one sentence was imposed; or
(b) the date of conviction, if no sentence that required to be discharged was imposed as a result of the conviction,
the conviction is not to be regarded as a conviction for any purpose, except as provided in this section.
(3) On the application of the person concerned the court, if it thinks that special circumstances exist, may declare that subsection (2) applies in relation to a conviction of a young person even though the period of 2 years mentioned in that subsection has not expired.
(4) In subsection (2), the reference to a sentence imposed as a result of a conviction includes a reference to an order made as a result of the conviction, and when the order has been fully complied with the sentence is to be regarded as having been discharged.
(5) If a young person is convicted of an offence and a youth community based order is made as a result of the conviction, unless the person has been subsequently dealt with for that offence the conviction is not to be regarded as a conviction for any purpose, except as provided in this section.
(6) The reference in subsection (5) to a youth community based order includes a reference to a probation order or community service order made under the Child Welfare Act 1947 before the commencement of section 198.
(7) This section does not prevent -
(a) a person in respect of whom a youth community based order has been made upon the person’s conviction of an offence from being subsequently dealt with for the offence as a person so convicted if a condition of the order is not observed; or
- (b) any subsequent proceedings that may be taken against the offender under this Act or on indictment in relation to the offence to which this section applies or for a subsequent offence; or
(c) the making of a record of anything that paragraph (a) or (b) allows.
- (8) This section does not affect -
(a) the right of a person to appeal against a conviction or to rely on a conviction in bar of any subsequent proceedings for the same offence; or
(b) the revesting or restoration of any property in consequence of the conviction; or
(c) the right of a court to disqualify a person from holding or obtaining a driver’s licence issued under the Road Traffic Act 1974; or
(d) any cancellation or disqualification that occurs by operation of any written law.
(9) Part 3 of the Spent Convictions Act 1988 has effect in relation to a conviction that, under this section, is not to be regarded as a conviction as if it were a spent conviction under that Act.
10 From this it will be apparent that there are certain limitations which apply to the principle that where a young person is convicted of an offence and where a period of two years has expired since the conviction or the discharge of any sentence arising from the conviction then the conviction is not to be regarded as a conviction for any purpose. The section provides for express exceptions to the doctrine and these are contained, so far as are relevant to the present case, in s 189(8). Again in the present case it is the scope of the exception contained in s 189(8)(d) that arises for determination. It will be necessary to return to that central question but only after other material statutory provisions have been identified.
11 As s 189(9) of the Young Offenders Act provides, pt 3 of the Spent Convictions Act 1988 has effect in relation to a conviction which under that section is not to be regarded as if it were a conviction under that Act. The material provision of the Spent Convictions Act 1988 (WA) in the present circumstances is s 25 which provides:
(Page 10)
- 25. Interpretation of written laws
(1) 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 spent conviction.
…
12 It is the significance of these preceding statutory provisions to the requirements of the Road Traffic Act which is determinative. So far as presently material, that section provides:
75. Notification and effect of disqualification
…
(2a) Where a person is disqualified from holding or obtaining a driver's licence upon being convicted of a prescribed offence, other than an offence against section 64, and that person has previously been convicted of prescribed offence, any driver's licence or learner's permit held by that person shall by force of this section be cancelled.
13 Further, by s 75(6) a 'prescribed offence' in this section means an offence against s 63, s 64 or s 64AB of the Act or more recently against s 67 or s 67AA. It is accepted that the initial offences committed by Mr Spooner and of which he was convicted while a young offender are prescribed offences within the meaning of s 75 of the Road Traffic Act.
14 The question, therefore, which is presented by these appeals is whether the reference in s 75(2a) of the Road Traffic Act to a previous conviction of a prescribed offence includes a conviction for such an offence committed by a young offender more than two years before. If it does, then the operation of s 75(2a) would have had the effect that upon Mr Spooner's conviction of the so-called 'triggering offences' in March 2009 his driver's licence would, by force of s 75(2a), have been forthwith cancelled. In that event, he would have been driving without a licence or authority when charged with the present offences in August 2011 and, upon the facts admitted at his trial, ought to have been convicted. That at least is the contention of the appellants in both appeals.
15 By contrast, the submissions for Mr Spooner by his counsel, before the learned magistrate and on these appeals, are to the effect that his convictions while a young offender should not, in view of the time which has since elapsed, be regarded as convictions for any purpose and hence s 75(2a) of the Road Traffic Act had no application to him when he was
(Page 11)
- convicted of the triggering offences. On this approach his then existing driver's licence remained in force and the purported notice of cancellation by the Director-General based on the erroneous interpretation of s 75(2a) of the Road Traffic Act was simply of no effect. In other words, on the respondent's argument at the time he was charged with the offences which are the subject of the current proceedings, he continued to hold a valid driver's licence.
16 This is enough to reveal that a significant issue arising for determination in these appeals is whether or not the cancellation of the driver's licence submitted by the appellant to have occurred by virtue of s 75(2a) of the Road Traffic Act is one which occurred by operation of the law within the meaning of s 189(8)(d) of the Young Offenders Act and, as such, was excluded from the otherwise protective provisions of s 189 of the Young Offenders Act. That appears to be the essential issue for present determination. Before dealing further with it, it is necessary to notice the various authorities cited to the learned magistrate and to this court.
17 An early example of this protective doctrine for young offenders is provided by the decision in Hayden v Webb (1987) 5 MVR 283, a decision of Smith J in this court. At that time provisions comparable with s 189 of the Young Offenders Act, but not identical with them, were to be found in s 40(2)(b) of the Child Welfare Act 1947, since repealed. In the instant case, the appellant had been convicted of an offence under s 66 of the Road Traffic Act by failing to provide a sample for breath analysis. The mandatory penalties for that offence then provided, as they still do, for a more serious penalty for a second offence. It emerged that the offender had been convicted of a prior offence of driving under the influence of alcohol at a time when he was a child. Smith J accepted that because of s 40 of the Child Welfare Act as it then applied, the appellant should have been treated as a first offender. This appeal succeeded and the case was remitted to the learned magistrate for the imposition of a penalty appropriate for a first offender.
18 The Court of Criminal Appeal in this State had occasion to consider s 189 of the Young Offenders Act in P (a child)v The Queen (1997) 94 A Crim R 593. There the question was whether or not three previous convictions for home burglaries of the appellant as a juvenile which had been imposed more than two years before the appellant's latest plea of guilty to one count of burglary, again as a juvenile, meant that he was required to be treated as a 'repeat offender' and sentenced to a minimum term of imprisonment or detention of 12 months for the latest offence.
(Page 12)
- His appeal from an imposition of the supposed mandatory term of imprisonment of 12 months was allowed on the basis that s 189(2) of the Young Offenders Act did not encompass the previous convictions excluded by the operation of that section. The case turned on the meaning of the exception to the general disregard of convictions of young offenders which had occurred more than two years before imposed by s 189(7) which then, as now, provided:
This section does not prevent -
…
(b) any subsequent proceedings that may be taken against the offender under this Act or on indictment in relation to which this section applies or for a subsequent offence; or
…
Rather, as it seems to us, s 4(3) of the Amendment Act can and should be read together with s 189(2) of the Young Offenders Act with the effect that the 'convictions recorded at any time' referred to in the former Act do not encompass those excluded by the operation of s 189 of the latter Act. (Compare Butler v A-G (V) (1961) 106 CLR 268 at 276 and Saraswati (1991) 172 CLR 1 at 17).
20 The third decision to which I was referred concerning the application of the Young Offenders Act is Anderson v Edwards [2003] WASCA 59. This decision was no more than a direct application of P (a child) to a case where there had been earlier convictions which should have been excluded from consideration by virtue of s 189(2) and s 189(5) of the Young Offenders Act. In that case, the appellant was successful, his appeal was allowed and the sentence imposed upon him after wrongly taking into account the earlier convictions was reduced.
(Page 13)
21 Reference was also made to the decision of HA v Director of Public Prosecutions (NSW) [2003] NSWSC 347; (2003) 57 NSWLR 653 where Dunford J held that notwithstanding s 14(1) of the Children's (Criminal Proceedings) Act 1987 (NSW) a court which made a finding of guilt upon a child followed by the imposition of a penalty under that Act had the power to order disqualification from holding a driver's licence which arose under s 24 of the Road Transport (General) Act 1999 (NSW) conditional upon there being a conviction of the person of an offence under the road transport legislation. That case did not in any way raise the issue which presents in this case of whether an earlier conviction or convictions of a young offender can, in the face of statutory provisions equivalent to s 189 of the Young Offenders Act, be calculated in determining whether or not some later offence amounts to a 'subsequent offence'. Rather the decision amounts to no more than a conclusion that in New South Wales a court which refrains from imposing a conviction upon a young offender under the age of 16 years who has been found guilty of a prescribed offence can nevertheless proceed to cancel or disqualify the offender's motor driver's licence.
22 These decisions, while illustrative of the principle embodied in s 189 of the Young Offenders Act and its predecessor, s 40 of the Child Welfare Act, are not determinative of the question raised by these appeals. Nevertheless, the decision in P (a child) in particular gives guidance to the proper approach to statutory interpretation in this context.
23 The essential point for the appellants is the submission that by reason of s 189(8) the general protection of s 189(2) does not affect:
(d) any cancellation or disqualification that occurs by operation of any written law.
24 To this submission is added the further submission that a cancellation or disqualification which occurs by virtue of s 75(2a) of the Road Traffic Act is a cancellation or disqualification which occurs by operation of a written law and not by a court. However, with respect, the conclusion which the appellants submit should follow is one which I find myself unable to accept. The proper meaning of s 75(2a) of the Road Traffic Act is not reached by identifying by what authority or process the cancellation of the driver's licence which it produces is effected. The relevant question is whether or not, in the circumstances of this or an analogous case, s 75(2a) applies at all and that question will depend upon whether or not 'that person has previously been convicted of a prescribed offence'. Hence the question is whether or not the offences committed more than two
(Page 14)
- years before by a young offender can be counted as previous convictions within the meaning of s 75(2a). Consistently with the approach in P (a child) I consider that the proper interpretation of s 189(8)(d) of the Young Offenders Act when read in conjunction with s 75(2a) of the Road Traffic Act is that a previous prescribed conviction or convictions by a young offender which occurred more than two years before the triggering offence will not be encompassed within the meaning of a previous conviction for a prescribed offence under s 75(2a) so that the latter section, not including such earlier offences within its compass, will not result in any cancellation or disqualification by operation of its terms in the present case.
25 Counsel for the respondent submitted that this same conclusion could be reached by having regard to the effect of s 25 of the Spent Convictions Act which, as already noted, has effect by virtue of s 189(9) of the Young Offenders Act as if a conviction of a young offender were a spent conviction under that Act. Counsel submitted that by the operation of s 25(1) of the Spent Convictions Act¸ s 75 of the Road Traffic Act does not refer to a conviction which, under s 189 of the Young Offenders Act, is not to be regarded as a conviction and cited T v Bolitho [2010] WASC 30;(2010) 198 A Crim R 417 to the effect that by virtue of s 25(1) of the Spent Convictions Act as related to s 32A of the Misuse of Drugs Act convictions in respect of which spent conviction orders have been made were not convictions properly to be taken into account for the purposes of s 32A of the Misuse of Drugs Act. With respect, I consider that that submission should also be accepted as another ground for reaching the conclusion which I have earlier expressed.
26 Accordingly, I am satisfied that no error has been demonstrated in the decision reached by the learned magistrate that in both these cases the earlier convictions of the respondent as a young offender which had occurred more than two years before the triggering offence did not constitute previous convictions for prescribed offences within the meaning of s 75(2a) of the Road Traffic Act, with the further result, therefore, that no cancellation of the appellant's motor driver's licence was effected by operation of law under that subsection upon his conviction as an adult for the triggering offence on 20 March 2009. His Honour was correct in concluding that the appellant's licence had, therefore, not been cancelled by operation of law as at 20 March 2009 and that there was, therefore, no evidence before him that the appellant had been driving without authority on the two occasions in 2011 which were the subject of the charges which he then dismissed. I consider, with respect, that
(Page 15)
- his Honour was correct in his disposition of both these cases and, accordingly, both these appeals should be dismissed.
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