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STOCKHAM -v- CLARKE [2014] WASC 157 (7 May 2014)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : STOCKHAM -v- CLARKE [2014] WASC 157

CORAM : LE MIERE J

HEARD : 9 SEPTEMBER 2013

DELIVERED : 7 MAY 2014

FILE NO/S : SJA 1052 of 2013

BETWEEN : AYR RAY STOCKHAM

Appellant

AND

RYAN DAVID CLARKE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE G A BENN

File No : MI 12426 of 2012, MI 12427 of 2012, MI 12428 of 2012, MI 12429 of 2012

Catchwords:
Appeal - Whether the conviction of a person for an offence for reckless driving while that person was under the age of 18 years is after the expiry of two years to be regarded as a previous conviction for the purposes of s 60(3)(c) of the Road Traffic Act 1974 (WA)

Statutory construction - Section 60(3) of the Road Traffic Act 1974 (WA) and s 189(8)(c) of the Young Offenders Act 1994 (WA)

Legislation:
Criminal Appeals Act 2004 (WA), s 9(1), s 9(2)
Road Traffic Act 1974 (WA), s 60
Young Offenders Act 1994 (WA), s 189

Result:
Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Ms N R Sinton

Respondent : Mr J F Bennett

Solicitors:

Appellant : Legal Aid (WA)

Respondent : State Solicitor for Western Australia

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

1 LE MIERE J: This appeal turns on a question of law which is a question of statutory construction. The question is whether the conviction of a person for an offence of reckless driving while that person was under the age of 18 years is, after the expiry of two years, to be regarded as a previous conviction for the purposes of s 60(3)(c) of the Road Traffic Act 1974 (WA), which requires a court convicting a person for a third reckless driving offence to permanently disqualify the person from holding or obtaining a drivers licence, notwithstanding the provisions of s 189 of the Young Offenders Act 1994 (WA).

Facts

2 On 15 February 2013 the appellant was convicted of four offences including driving recklessly contrary to s 60(1) of the Road Traffic Act. The appellant was sentenced to 8 months' imprisonment and the court ordered that he be permanently disqualified from holding or obtaining a drivers licence. The disqualification order was made on the basis that it was the appellant's third conviction for reckless driving, having previously been convicted of reckless driving on 8 March 2005 and 30 July 2007. At the time of the offence on 8 March 2005 the appellant was aged 17 and was therefore a young person to whom the Young Offenders Act applies.

The statutory regime

3 This appeal turns on the interaction between s 60(3) of the Road Traffic Act and s 189(8)(c) of the Young Offenders Act.

4 Road Traffic Act s 60(1) provides that every person who wilfully drives a motor vehicle in a manner that is inherently dangerous or in the circumstances dangerous to the public or to any person commits an offence. Section 60(3) provides:

A person convicted of an offence against this section is liable
...

(c) for a third or subsequent offence, to a fine of 240 PU or to imprisonment for 12 months; and, in any event, the court convicting that person shall order that he be permanently disqualified from holding or obtaining a driver's licence.

5 The Young Offenders Act is 'an Act relating to young persons who commit offences against the law'. The Act applies to persons who commit an offence before reaching the age of 18 years 'for purposes connected with that offence or any order that was made in dealing with the person for that offence' (s 4). The main objectives of the Young Offenders Act are set out in s 6 and include integrating young persons who have committed offences into the community. Section 189 of the Young Offenders Act operates in certain circumstances to relieve offenders of the long term consequences of convictions recorded against them as a juvenile and has a rehabilitative purpose, consistent with the objectives of rehabilitation and reintegration in the community: Pavlovic v Spooner  [2014] WASCA 31  [13] (Martin CJ). Section 189 provides (relevantly):

(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.

...
(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.

The construction issue

6 This appeal turns upon the proper construction of s 189(8)(c) of the Young Offenders Act. The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 [26] (French CJ, Hayne, Keifel and Bell JJ). The primacy of the text is the first principle of interpretation. Text, however, is to be understood in context and in light of the purpose of the statute.

7 Section 189(2) has the effect that if a young person is convicted of an offence of reckless driving and a period of two years has expired since the date of conviction, the conviction is not to be regarded as a conviction for any purpose, including determining the required period of licence disqualification under s 60(3) of the Road Traffic Act, 'except as provided in [s 189]'. The question is whether s 189(8)(c) is a relevant exception so that s 189(2) does not apply.

8 Section 189(8)(c) provides, in effect, that s 189(2) does not affect the right of a court to disqualify a person from holding or obtaining a driver's licence issued under the Road Traffic Act. Section 60(3) confers a right, indeed a duty, on a court to disqualify a person from holding or obtaining a driver's licence issued under the Road Traffic Act. It follows that the natural and ordinary meaning of s 189(8)(c) is that s 189(2) does not affect the operation of s 60(3) of the Road Traffic Act. Put more simply, a conviction of a person for reckless driving is a previous conviction for the purposes of s 60(3) of the Road Traffic Act, notwithstanding that at the time of the previous conviction the person was under 18 years old and two years has expired since the conviction.

9 The alternative construction of s 189(8)(c) is that it applies only to the right of a court to disqualify a person from holding or obtaining a driver's licence which followed from the conviction to which s 189(2) of the Young Offenders Act applies, thus excluding a cancellation or disqualification arising from a subsequent conviction. That was the construction of s 189(8)(d) advanced by the respondent and rejected by the Court of Appeal in Pavlovic v Spooner. Martin CJ, with whom Hall J agreed, explained the respondent's contention and why it was rejected:

The respondent contends that the magistrate's construction of s 189(8)(d) is supported by reasoning analogous to that which I applied in Bolitho. It is submitted that the paragraphs of s 189(8) have the unifying characteristic that they all make provision limiting the operation of the section with respect to the conviction to which the section applies. So, it is contended that s 189(8)(a) preserves the right of appeal against a conviction to which the section applies, and s 189(8)(b) enables orders to be made for the restoration of property notwithstanding the operation of the section. It is submitted that s 189(8)(d) should therefore be construed as only applying to a cancellation or disqualification arising from the conviction to which the section relates - in this case the respondent's first drink driving conviction.
The difficulty with this submission is that s 189(2) only applies to a conviction after two years have elapsed following either conviction or the discharge of any sentence imposed as a result of the conviction. Although it is theoretically possible that a person might seek to exercise a right of appeal against such a conviction more than two years later, or that an order for restoration of property might be made more than two years following conviction, the occurrence of either of those things seems most unlikely. Further, there is not even a theoretical possibility that matters addressed by s 189(8)(c) and s 189(8)(d) could occur more than two years after conviction, in respect of that conviction. Taking first s 189(8)(c), it is inconceivable that a court would disqualify a person from holding or obtaining a driver's licence as a result of a conviction after two years had elapsed since that conviction. Similarly, it is almost impossible to conceive of any circumstance in which a cancellation or disqualification would take effect more than two years after the conviction giving rise to that cancellation or disqualification. It follows that the reasoning which I applied in Bolitho has no application to s 189(8). Further, the reasoning which I applied in Bolitho drew significant support from the natural and ordinary meaning of the language used in the relevant statutory provision, which referred to the making of a spent conviction order 'on convicting the offender', thereby focusing attention upon the conviction to which the order relates, rather than a subsequent conviction [48] [49].

10 The same reasoning applies to s 189(8)(c). It follows that on its proper construction s 189(8)(c) of the Young Offenders Act does not affect the operation of s 60(3) of the Road Traffic Act.

Other authorities

11 Counsel referred to Anderson v Edwards [2003] WASCA 59 and Heydon v Webb (1987) 5 MVR 283. Neither of those authorities is of assistance in answering the question raised by this appeal for similar reasons to those explained by the Chief Justice in Pavlovic v Spooner.

Leave to appeal

12 An appellant must obtain leave to appeal on each ground that he or she wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA) s 9(1) and (2). There was only one ground of appeal, the ground that the magistrate erred in finding that the conviction for reckless driving was a third conviction when it was in fact a second for sentencing purposes. That ground of appeal raises and turns on the question of construction that I have determined against the appellant. Nevertheless, the ground of appeal had a reasonable prospect of succeeding.

Conclusion

13 There should be leave to appeal on the ground set out in the appeal notice but the appeal will be dismissed.