Smith v WA Police - [2025] WASC 55

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SMITH -v- WA POLICE [2025] WASC 55
CORAM:   SOLOMON J
HEARD:   28 JANUARY 2025
DELIVERED          :   28 JANUARY 2025
PUBLISHED           :   25 FEBRUARY 2025
FILE NO/S:   SJA 1054 of 2024
BETWEEN:   RICHARD JOHN SMITH
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1054 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E SHACKLETON
File Number            :   JO 6660/2024

Catchwords:

Criminal law - Refusal to grant spent conviction order - Leave to appeal - Careless driving causing grievous bodily harm or bodily harm - Disqualified from holding or obtaining a passenger transport driver authorisation - Interaction of Sentencing Act, Spent Convictions Act and Transport (Road Passenger Services) Act

Legislation:

Criminal Appeals Act 2004 (WA), s 6(1)(g), s 7(1), s 9(2), s 9(3), s 14(2)
Road Traffic Act 1974 (WA), s 59BA(1), s 75(2a)
Sentencing Act 1995 (WA), s 39(2), s 45(1), 45(3), s 45(5)
Spent Convictions Act 1988 (WA), s 25, s 13
Transport (Road Passenger Services) Act 2018 (WA), s 73, s 97(2), s 115, s 115(2)
Transport (Road Passenger Services) Regulations 2020 (WA), sch 3
Young Offenders Act 1994 (WA), s 189, s 189(8)(d)

Result:

Leave to appeal refused

Representation:

Counsel:

Appellant	:	Mr A Barbaro
Respondent	:	Mr S Boccardo

Solicitors:

Appellant	:	Bar Legal
Respondent	:	State Solicitor's Office

Cases referred to in decision:

BA v Director of Public Prosecutions for Western Australia [2021] WASC 370
Bertolino v Director of Public Prosecutions for Western Australia [2022] WASC 423
Henshaw v Spooner [2012] WASC 484
Pavlovic v Spooner [2014] WASCA 31
Samuels v State of Western Australia [2005] WASCA 193; 30 WAR 473

SOLOMON J:

(This judgment was delivered extemporaneously on 28 January 2025 and has been edited from the transcript).

Background

On 19 July 2024 in the Magistrates Court at Joondalup, the appellant, Mr Richard Smith, entered a plea of guilty and was convicted of one charge of careless driving causing grievous bodily harm or bodily harm pursuant to s 59BA(1) of the Road Traffic Act 1974 (WA) (Road Traffic Act).
The learned magistrate sentenced Mr Smith, imposing a fine of $1,500.00, ordering costs of $272.70 and disqualifying the appellant from driving for a period of three months.[1]
[1] Transcript, Smith v The State of Western Australia, Joondalup Magistrates Court, 19 July 2024, 5.
The material facts of the offence were read by the prosecutor and are set out in the Magistrates Court transcript as follows:[2]
At about 6.30 am on Wednesday 22 May 2024, the accused was the driver of a motor vehicle commencing his school bus duties. The accused was stationary at the edge of the depot driveway, facing onto Gnangara Road, Landsdale, waiting to turn right. There was medium traffic on Gnangara Road, and the accused waited until he could see a large enough space between vehicles travelling in both directions, to pull out.
The accused has commenced to pull out after a vehicle had passed, and has collided with the victim riding a motorcycle, who was travelling west on Gnangara Road towards the accused's vehicle, and slowing down to attend to his work location, two driveways past the bus exit. The victim had his headlight illuminated. The victim has hit the front passenger side corner of the bus, and has been thrown from the motorcycle onto the roadway. The accused has immediately parked his vehicle, and attended to the victim, and called an ambulance.
Minor damage was sustained to the motorcycle, and the front end of the bus. The victim was conveyed to Royal Perth Hospital where he was admitted to the State Trauma Unit, for a short period, suffering from a large forehead laceration with a minimally displaced front bone fracture, fractured sacrum, fractured ribs and pneumothorax.
[2] ts 3.
In addition to the material facts read out by the prosecution, Mr Smith was represented by counsel who made submissions on his behalf regarding the circumstances of the offence. Counsel for Mr Smith said the following:
I note that Mr Smith acknowledges the severity of the charge, and as my friend noted, he has fully cooperated with law enforcement, from the outset. With respect to the incident, he instructs that that on 22 May '24, at approximately 6.30 in the morning, he was driving from the bus depot to commence his work day, to drive the bus. At the time of the incident, he was stationary at the edge of the depot driveway on Gnangara Road, waiting to turn right.
He says it was early morning with very poor lighting, as it was very heavily overcast that day, which contributed to the decreased visibility. He checked his surroundings, and perceiving a reasonable gap in traffic, he began to pull out. Unbeknownst to him, the victim, a motorcyclist wearing dark clothing, riding a black motorcycle, was obscured from his view by another vehicle, when suddenly he remembered seeing a black flash and impact upon the front side of the bus.
Upon realising the collision, he immediately parked the bus, and attended to the victim, and called an ambulance. He remained at the scene until medical personnel arrived, and behaved responsibly throughout this time. I will just go through his antecedence, your Honour. He is a man of 60 years with his wife. He has been together with his wife, Janine, who is here today - they've been together for 29 years, and they have two adult children.
He has held a series of responsible jobs, including a long career at Commonwealth Bank in various roles, driving buses for Guildford Grammar School, and also Horizons West. He has no prior criminal for a middle [sic] record, and has traditionally been a law-abiding citizen. He has provided a sincere explanation for the incident, citing poor lighting conditions and obstructive views as contributing factors. He admits he did not see the motorcyclist nor his headlight due to the dark attire of the victim, and the position behind other traffic.
This was an unfortunate accident without any intent or malice. In summary, in mitigation, I know it's his first offence, he has no prior criminal history. He did cooperate fully with police, and admitted to the offence when confronted. He provided immediate assistance to the injured motorcyclist, demonstrating his remorse and concern for the welfare of the victim. And he is of good character. And he has made significant contributions to society through his work and community engagement over the years.
I also note that the suspension of his licence will mean he will be unable to work, as his principal means of income is bus driving. So he is estimated to lose approximately $12,000 from this. Your Honour, we also request a suspended conviction order for this charge, as it will directly impact his ability to work, as it involves driving. And I do have two character references in support.[3]
[3] ts 3 - 4.
After referring to the character references, counsel for Mr Smith sought a spent conviction order:[4]
Given Mr Smith's excellent character, exemplary past conduct and the circumstances of the offence, I respectfully request the court to consider a spent conviction order we say would be appropriate in allowing Mr Smith to continue his valuable contribution to society without the long-term stigma of a driving offence directly impacting his ability to continue earning and contributing to society, especially seeing as though it was a genuine accident. In light of his clean record, immediate actions post-incident, and his overall good character, we submit that a minimal fine and a spent conviction order would be proportionate responses to this matter, your Honour.
[4] ts 4.
The circumstances and the facts outlined by counsel on behalf of Mr Smith do not appear to have been contested.[5]
[5] ts 5.
The learned magistrate gave very brief reasons, as follows:[6]
Mr Smith, in relation to the matter I will give you the full discount for your plea of guilty. Things like it being dark, overcast, people dressed in dark clothing, are the things that you're obviously required to take into account. The darker it is, the more care you need to show. By your plea you've accepted that. In relation to the matter, there will be a fine of $1500, costs of 272.70, and I must disqualify you for three months.
In relation to the application for a spent conviction, I am satisfied, given your history, that you are unlikely to commit such an offence again. I am satisfied you're of prior good character. This is not trivial. But I'm not satisfied that you should be immediately relieved of the adverse effect that the conviction might have upon you. It seems to me that there is a public interest in a future employer, or your current employer, knowing about this accident before employing you.
[6] ts 5.
The entire matter, based on the record of the transcript, including the background facts provided by the prosecution, submissions made on behalf of Mr Smith, and the learned magistrate's remarks on sentencing took a total of seven minutes. In short, the learned magistrate was satisfied that the statutory preconditions to the grant of a spent conviction order under s 45(1) of the Sentencing Act 1995 (WA) (Sentencing Act) were met, but in the exercise of his discretion, the learned magistrate considered that a spent conviction order was not justified. The learned magistrate was thus satisfied that Mr Smith was unlikely to offend again and was a person of good character. Those matters were not, and are not, challenged.

Appeal proceedings

By notice dated 16 August 2024, Mr Smith sought leave to appeal the decision of the learned magistrate. Two grounds of appeal were contained in the notice.[7] The first was that the magistrate erred in refusing to grant a spent conviction order, and the second was that the decision of the learned magistrate amounted to a miscarriage of justice because the applicant ought to have been relieved from the adverse impact of the conviction. I shall return to the content of those grounds.
[7] Notice of Appeal, 2.
The application for leave is made under Division 2 Part 2 of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act). The appeal relates to the magistrate's refusal to make a spent conviction order. A refusal to make an order that might be made as a result of a conviction amounts to a decision which may be appealed.[8]
[8] Criminal Appeals Act 2004 (WA), s 6(1)(g), s 7(1).
As I have observed, leave to appeal is required. Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[9] meaning that the ground is required to have a rational and logical prospect of succeeding - in effect; that it has a real prospect of success.[10] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[11] Further, as is well established, even if a ground of appeal might be decided in favour of the appellant, the court can dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[12]
Further evidence on appeal
[9] Criminal Appeals Act 2004 (WA), s 9(2).
[10] Samuels v State of Western Australia [2005] WASCA 193; 30 WAR 473, [56].
[11] Criminal Appeals Act2004 (WA), s 9(3).
[12] Criminal Appeals Act2004 (WA), s 14(2).
The appellant filed an outline of submissions in support of the appeal, dated 15 November 2024, and the respondent filed submissions in opposition to the appeal dated 6 December 2024.
After the matter had been allocated to me, I considered the materials. I was concerned that there appeared to be a lack of evidence on behalf of Mr Smith in support of the appeal. I was further concerned about the basis of the appeal in light of certain provisions of the Spent Convictions Act 1988 (WA) (Spent Convictions Act), the Sentencing Act, and the Transport (Road Passenger Services) Act 2018 (WA) (Transport Act). In the circumstances, I called the matter on for directions on 14 January 2025.
I gave leave on that occasion for Mr Smith to file an affidavit in support of the appeal and I sought submissions from the parties in relation to the interaction between the various statutes to which I have referred.
Mr Smith filed an affidavit dated 22 January 2025, which set out his personal circumstances relevant to the appeal. That affidavit was tendered without objection.
In addition, counsel for both the appellant and the respondent filed submissions on 24 January 2025 in relation to the impact of the various statutes.
Grounds of appeal
In his written and oral submissions, counsel for the appellant elaborated on the grounds of appeal. In effect, there were two broad grounds of appeal. The first was that the learned magistrate erred because his Honour failed to take into account particular aspects of the appellant's personal circumstances that would be relevant to the exercise of the discretion in respect of a spent conviction order. Those matters relate to the impact on Mr Smith's employment and his age. The appellant also contended that the magistrate failed to take account of the seriousness of the offence.[13]
[13] Appellant's Affidavit, 22 January 2025 (Appellant's Affidavit), 3.
The second ground of appeal was that a miscarriage of justice had occurred because the effect of the failure to grant a spent conviction order was that Mr Smith would be unable to be employed in his usual employment as a bus driver for a period of five years due to the effect of the Transport Act. That is so notwithstanding that the penalty he received for the offence under the Road Traffic Act was a disqualification of only three months.[14]
Affidavit evidence and Mr Smith's circumstances
[14] Appellant's Affidavit, 1.
In order to understand the basis for the appeal it is necessary, in brief, to outline the affidavit evidence filed by the appellant. Mr Smith's employment is as a bus driver. For those purposes, he needs to hold an authorisation under the relevant legislation, which is the Transport Act.[15] Under s 115 of that Act, if a person is convicted of a disqualification offence then, by force of that section, the person is disqualified from holding or obtaining a passenger transport driver authorisation for the period determined in accordance with that section.[16] Section 115(2) provides that the period of disqualification ends 'as prescribed', which is a reference to the Transport (Road Passenger Services) Regulations 2020 (WA) (Regulations).[17]
[15] Transport (Road Passenger Services) Act 2018 (WA), s 73.
[16] Transport (Road Passenger Services) Act 2018 (WA), s 115.
[17] Transport (Road Passenger Services) Regulations 2020 (WA), sch 3.
It was common ground that the effect of s 115 of the Transport Act and the Regulations is that Mr Smith will be disqualified from having the requisite authorisation to be able to drive a passenger bus for five years. The miscarriage of justice is said to be, as I have explained, that the period of five years, as compared to the three-month disqualification of the sentence, is disproportionate in circumstances where Mr Smith's employment and income is derived from that activity.

Spent convictions

The circumstances in which a spent conviction order can be made are governed by the Spent Convictions Act and by the Sentencing Act. The applicable principles are well established. There was no controversy between the parties as to the principles ordinarily applicable in respect of the grant of a spent conviction order. The relevant principles were conveniently summarised by Derrick J in BA v Director of Public Prosecutions for Western Australia [2021] WASC 370 (BA) as follows (citations omitted):[18]
[18] BA v Director of Public Prosecutions for Western Australia [2021] WASC 370, [60] - [63].
Section 39(1) and s 39(2)(c) of the Sentencing Act, when read together, relevantly provide that subject to s 45 a court sentencing an offender who is a natural person may impose a fine with or without making a spent conviction order.
Section 45(1) of the Sentencing Act provides:
Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to -
(i)the fact that the offence is trivial; or
(ii)the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
Thus the section operates so as to direct the court not to make a spent conviction order under s 39(2) unless the court considers that the offender is unlikely to commit such an offence again and, having regard to one or other of the factors specified in subsection (1)(b), it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. Therefore, there are two pre‑conditions that must be established before the court is permitted to consider if the offender should be relieved immediately of the adverse effect that the conviction might have on them. First, that the offender is unlikely to commit such an offence again. Second, that the offence is trivial, or the offender is of previous good character.
It is well established that if the pre-conditions for the exercise of the power to make a spent conviction order are satisfied, the court has a discretion, not an obligation, to make a spent conviction order. The discretion is to be exercised having regard to the following propositions:
1.The discretionary power to make a spent conviction order pursuant to s 45(1) should be regarded as being of an exceptional character to be sparingly exercised in a clear case;
2.In determining whether to exercise the discretionary power the court should have regard to the seriousness of the offence, the circumstances of its commission and the circumstances personal to the offender;
3.The court should take as the ordinary rule the fact that the conviction will be a matter of record with all the consequences that may entail into the future;
4.The court should look to see if there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender, but also, having regard to his or her rehabilitation, from the point of view of the community why the adverse effect of the conviction should be set aside; and
5.The exercise of the discretion involves the consideration of the interest of the offender and the public interest.
The impact of a spent conviction order in these circumstances
The principal issue and the basis of this appeal if the appeal were to be upheld and a spent conviction order granted, is that there would be no conviction for the purposes of s 115 of the Transport Act, and therefore, Mr Smith would be able to resume his employment as a bus driver. Indeed, the evidence showed that Mr Smith's employer was desirous of him returning to work, and such work would be available to him. The respondent did not dispute, initially, that this was the position.
Further, two decisions of this court previously proceeded on the basis that that was the effect of the legislation. Those two decisions are BA, supra, and Bertolino v Director of Public Prosecutions for Western Australia [2022] WASC 423.
I note, however, that both of those decisions had the following features.
Firstly, the effect of the legislation was not the subject of the court's focus or analysis. In both those matters, the court proceeded on the assumption agreed and presented by the parties, that the effect of the legislation was as set out above, that if a spent conviction order is granted the disqualification under the Transport Act falls away.
The second feature was that in the two cases referred to above, the appellant did not hold a passenger transport driver authorisation but was seeking an authorisation. That, of course, is different from this matter, where Mr Smith held an authorisation that has since been cancelled by force of s 115 of the Transport Act.

The substance of this appeal rests on the proposition, initially agreed and assumed by the parties, that a spent conviction would permit Mr Smith to avoid the consequences of the five-year disqualification. It is accepted by both parties that the appeal would have no utility unless the effect of a successful appeal were to relieve Mr Smith of those consequences. Therefore, a resolution of the issue of the effect under s 115 of the Transport Act will determine the outcome of the appeal.
Following the directions hearing of 14 January 2025, and the filing of submissions by the parties on 24 January 2025, the respondent effectively changed its position and adopted the position that a spent conviction would not relieve Mr Smith of the consequences of the disqualification that arises under s 115 of Transport Act.[19]
[19] Respondent's Submissions, 24 January 2025, 8.

Consideration of grounds of appeal

Turning to the first ground of appeal, given the approach that ought to be taken to decisions of magistrates in a busy court, the amount of time available to the magistrate, and the short time in which all the information was presented, I would not, in any event, accept that the magistrate had failed to take account of the matters as contended by the appellant.
As to the second ground, I accept that there is an arguable case that if a spent conviction were to have the effect contended for by the appellant, then the failure to grant a spent conviction might have brought about a disproportionate consequence to Mr Smith in his personal circumstances. One might indeed be moved to some sympathy for Mr Smith's circumstances.
However, the matter turns on the effect under s 115 of the Transport Act, and therefore on the proper construction of the statutory provisions in the various statutes by which I am obviously bound.
The issue arises in the following way. I have already explained s 115 of the Transport Act. Subsection 45(5) of the Sentencing Act provides as follows:
45.Spent conviction order, making and effect of
…
(5)A spent conviction order in respect of a conviction does not affect —
(a) the right or the duty of a court to —
(i) disqualify, under a road law as defined in the Road Traffic (Administration) Act 2008 section 4, the offender from holding or obtaining a driver's licence as defined in that section;
(ia) disqualify, under the Western Australian Marine Act 1982, the offender from holding or obtaining a WA marine qualification as defined in section 3(1) of that Act;
(ii) make any order under this Act or any other written law on convicting the offender;
(b)the operation of any provision of a road law as defined in the Road Traffic (Administration) Act 2008 section 4, or Part 15, relating to the cancellation of, or disqualification from holding or obtaining, a driver's licence as defined in that section;
(ba)the operation of any provision in the Western Australian Marine Act 1982 relating to the cancellation of, or disqualification from holding or obtaining, a WA marine qualification as defined in section 3(1) of that Act;
(c)the duty of the offender to comply with the sentence imposed and with any order of the court in addition to the sentence;
(d) the revesting or restitution of any property as a result of the conviction;
(e)any cancellation or disqualification that occurs by operation of any written law;
(f)any right of appeal against the conviction or the sentence imposed.
(Emphasis added)
Subsection 45(3) of the Sentencing Act provides that Part 3 of the Spent Convictions Act applies in respect of a spent conviction made under the Sentencing Act.
Part 3 of the Spent Convictions Act includes ss 25 and 13. Section 25(1) provides that:
A reference in a written law of this State (other than this Act) to a conviction of a person for an offence does not include a reference to a spent conviction.
Section 13 of the Spent Convictions Act provides that Part 3 has effect, notwithstanding any other written law.
Under ss 13 and 25 of the Spent Convictions Act, one would conclude that s 115 of the Transport Act does not apply, because there has, in effect, been no conviction. However, the question that arises is whether s 45(5)(e) of the Sentencing Act prevails over the otherwise apparent effect of s 13 and s 25 of the Spent Convictions Act.
A not dissimilar issue arose before the Court of Appeal in Pavlovic v Spooner [2014] WASCA 31. In 2003 as a minor (aged 17), the respondent in that matter had been convicted in the Children's Court under the Road Traffic Act for driving with a blood alcohol level in excess of 0.08%. He was disqualified from holding or obtaining a driver's licence for five months. In 2009, then an adult, the respondent was again convicted under the Road Traffic Act of driving under the influence of alcohol. He was disqualified from holding or obtaining a driver's licence for six months. In addition, following that second conviction his licence was cancelled by the Department of Transport on the basis that s 75(2a) of the Road Traffic Act then provided, in effect, that where a disqualification was imposed on a second conviction, the person's licence was automatically cancelled. In 2011 the respondent was charged with two counts of driving while unlicensed on the basis that his licence had been cancelled under s 75(2a) of the Road Traffic Act by reason of the 2003 and 2009 convictions.[20]
[20] Pavlovic v Spooner [2014] WASCA 31 (Pavlovic), [17] - [19].
Section 189 of the Young Offenders Act 1994 (WA) (Young Offenders Act) provided, relevantly:
189.Certain offenders to be regarded as not convicted
…
(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.
…
(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.
(Emphasis added)
The respondent defended the charges on the basis that under s 189 of the Young Offenders Act, his conviction as a minor in 2003 ought not to be regarded as a conviction under s 75(2a) of the Road Traffic Act and therefore his licence was not validly cancelled because the 2009 conviction was not a second conviction. That defence was upheld by the magistrate and by a single judge of this court.[21] The prosecution successfully appealed and convictions were entered for the charges of driving without a licence.
[21] Henshaw v Spooner[2012] WASC 484 (Henshaw), [26].
The question for the Court of Appeal was whether the effect of s 189(8)(d) prevailed over what would otherwise have been the effect of ss 13 and 25 of the Spent Convictions Act. Martin CJ explained:[22]
As I have noted, this appeal involves a question of statutory construction. The objective of statutory construction is to give to the words of the statutory provision the meaning which the legislature is taken to have intended them to have - see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78] (McHugh, Gummow, Kirby & Hayne JJ); Lacey v A‑G (Qld) [2011] HCA 10; (2011) 242 CLR 573 [43] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [29] (Martin CJ, Newnes and Murphy JJA agreeing). As Buss JA summarised in Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189 [55], and Commissioner of State Revenue v Oz Minerals Ltd [2013] WASCA 239 [104]:
The statutory text is the surest guide to the Parliament's intention. A decision as to the meaning of the text must begin by considering the context, in its widest sense. This will include the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue [2009] HCA 41 ; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ); Travelex Ltd v FCT [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ).
Where a number of enactments comprise a legislative scheme, they should be construed accordingly - see Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 726; Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 722 (Kirby P); Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65 [42]; Peos v Manino [2004] WASCA 46 [66]; Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245 [64]. In Commissioner of Stamp Duties v Permanent Trustee Co Ltd, Kirby P said:
Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe interrelated statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation (722).
It is clear that the Road Traffic Act, the Sentencing Act, the Young Offenders Act and the Spent Convictions Act comprise a legislative scheme, in the sense that each interacts with the other so as to produce, hopefully, a coherent scheme for the sentencing of offenders (both young and adult) convicted of road traffic offences. The issue posed by these appeals concerns the specific interaction between s 189 of the Young Offenders Act, s 25 of the Spent Convictions Act (if it applies), and s 75(2a) of the Road Traffic Act. The court's task is to endeavour to construe those provisions so as to give them 'a sensible efficient and just operation' (per Kirby P above).
[22] Pavlovic, [26] - [28].
Martin CJ concluded:[23]
Section 189(8) applies to all the provisions of s 189, not just to subsection (2). Accordingly, if the effect of s 189(8)(d) is that cancellation or disqualification by operation of a written law occurs notwithstanding s 189(2), it necessarily follows that cancellation or disqualification occurs notwithstanding s 189(9) and therefore notwithstanding s 25 of the Spent Convictions Act.
There is no reason to depart from the natural and ordinary meaning of the language used in s 189(8)(d). The paragraph contains no language of restriction or constraint but applies to any cancellation or disqualification occurring by operation of a written law. Section 75(2a) of the Road Traffic Act is such a provision which had the effect of cancelling the respondent's licence following his conviction in 2009. It follows that the respondent was not authorised to drive on the two occasions he admitted driving in 2011 and the magistrate erred by not convicting him of each of the charges brought against him.
[23] Pavlovic, [54] - [55].
Similarly, Buss JA explained:[24]
By s 189(8), s 189 (including s 189(2) and s 189(9)) does not affect, relevantly, 'the right of a court to disqualify a person from holding or obtaining a driver's licence issued under the Road Traffic Act' (par (c)) or 'any cancellation or disqualification that occurs by operation of any written law' (par (d)).
The phrase '[t]his section does not affect', in s 189(8), connotes that nothing in the other provisions of s 189 (in particular, for present purposes, s 189(2) and s 189(9)) has any effect upon, impairs or diminishes the matters described in the succeeding paragraphs of s 189(8). That is, nothing in the other provisions of s 189 (notably, s 189(2) and s 189(9)) has any effect upon, impairs or diminishes the right of a court to disqualify a person from holding or obtaining a driver's licence issued under the Road Traffic Act (par (c)) or any cancellation or disqualification that occurs by operation of any written law (par (d)).
[24] Pavlovic, [139] - [140].
Having paid careful regard to this decision of the Court of Appeal, and particularly the passages referred to above, it seems to me that, on its proper construction, s 45(5) of the Sentencing Act should be read as qualifying s 45(3), which would otherwise apply the relevant provisions of the Spent Convictions Act to which I have referred.
The effect of s 45(5)(e), therefore, is that even if a spent conviction were granted, Mr Smith would be required to serve the disqualification period imposed by the Transport Act and the relevant regulations.

Concluding remarks

In those circumstances, it seems to me there is no utility in the appeal, and that whatever sympathy one might have for Mr Smith's predicament, the effect of the statutory provisions is such that the appeal simply cannot succeed.
I should also pause to note that under s 115(1)(b) of the Transport Act, the disqualification relates to either holding or obtaining an authorisation. That would suggest that the distinguishing characteristic of the decisions to which I previously referred at [26] may not, in effect, change the impact of the relevant legislative interactions, because the disqualification relates not only to the cancellation of an existing authorisation, but the power of the CEO of the Department of Transport to grant an authorisation. That would be consistent with s 97(2) of the Transport Act, which provides that the CEO must refuse to grant an authorisation if the applicant has been convicted of a disqualification offence.
In all the circumstances, given that it seems to me that I am unable to conclude that a spent conviction order would make any difference to Mr Smith's circumstances, there is no utility in the appeal, and therefore leave to appeal ought not to be granted, and the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LZ
Associate to the Honourable Justice Solomon
25 FEBRUARY 2025