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PAVLOVIC -v- SPOONER [ 2014] WASCA 31  (11 February 2014)

Last Updated: 3 May 2016

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : PAVLOVIC -v- SPOONER  [2014] WASCA 31 

CORAM : MARTIN CJ

BUSS JA

HALL J

HEARD : 11 SEPTEMBER 2013

DELIVERED : 11 FEBRUARY 2014

FILE NO/S : CACR 9 of 2013

CACR 10 of 2013

BETWEEN : DEJAN PAVLOVIC

JONATHON HENSHAW

Appellants

AND

HAYDEN NICHOLAS SPOONER

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : EM HEENAN J

Citation : HENSHAW -v- SPOONER [2012] WASC 484

File No : SJA 1012 of 2012, SJA 1013 of 2012

Catchwords:
Criminal law - Appeal by prosecution - Driving while unlicensed or disqualified - Road Traffic Act 1974 (WA) s 75(2a) - Young Offenders Act 1994 (WA) s 189 - Cancellation of licence upon second conviction for prescribed offence - Whether previous conviction as young offender not to be regarded as a conviction

Legislation:
Child Welfare Act 1947 (WA), s 40
Criminal Code (WA)
Local Government Act 1995 (WA)
Misuse of Drugs Act 1981 (WA)
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 9, reg 15, reg 22
Road Traffic Act 1974 (WA), s 42(1), s 49, s 51, s 63, s 64, s 75(2a), s 75(2c), s 75(6), s 104(2)
Sentencing Act 1995 (WA), s 3, s 39, s 45
Spent Convictions Act 1988 (WA), s 3(1), s 4, s 6, s 7, s 8, s 12, s 13, s 25
Young Offenders Act 1994 (WA), s 3, s 4, s 6, s 7, s 55, s 189

Result:
Appeals allowed
Convictions entered
Matter remitted for sentence

Category: A

Representation:

Counsel:

Appellants : Mr G T W Tannin SC & Ms R K Hill

Respondent : Ms N Erlandson

Solicitors:

Appellants : State Solicitor for Western Australia

Respondent : Legal Aid (WA)

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Anderson v Edwards [2003] WASCA 59

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29

B (a child) v Hepple [2013] WASC 303

CJH v The State of Western Australia [2013] WASCA 139

Colbung v The State of Western Australia [2010] WASCA 217

Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719

Commissioner of State Revenue v Oz Minerals Ltd [2013] WASCA 239

HA v Director of Public Prosecutions [2003] NSWSC 347; (2003) 57 NSWLR 653

Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189

Hayden v Webb (1987) 5 MVR 283

Henshaw v Spooner [2012] WASC 484

Lacey v A-G (Qld) [2011] HCA 10; (2011) 242 CLR 573

Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65

P (a child) v The Queen (1997) 94 A Crim R 593

Peos v Manino [2004] WASCA 46

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Wheeldon [1978] FCA 11; (1978) 33 FLR 402

Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245

Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716

T v Bolitho [2010] WASC 30; (2010) 198 A Crim R 417

The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51

Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510

MARTIN CJ:

1 These two prosecution appeals turn upon a single question of law which is, like so many appeals to this court, a question of statutory construction. That question is whether the conviction of a person for a drink driving offence committed 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 75(2a) of the Road Traffic Act 1974 (WA) (Road Traffic Act), which requires that a person's driver's licence be cancelled in the event of a second conviction for a drink driving offence, notwithstanding the provisions of s 189 of the Young Offenders Act 1994 (WA) (Young Offenders Act).

2 For the reasons which follow, the answer to that question is yes. Each appeal should be allowed, the acquittal of the respondent on each charge of driving whilst unlicensed quashed, a conviction entered on each count and the matters remitted to the Magistrates Court for sentence.

3 It is convenient to commence with a brief review of the relevant statutory provisions.

4 Pursuant to s 64 of the Road Traffic Act, a person who drives or attempts to drive a motor vehicle while having a blood alcohol content of or above 0.08% commits an offence.

5 Further, under s 63(1) of the Road Traffic Act, a person who drives or attempts to drive a motor vehicle while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle commits an offence.

6 Section 75(2a) of the Road Traffic Act provides that where a person is disqualified from holding or obtaining a driver's license upon being convicted of a 'prescribed offence', other than an offence against s 64, and that person has previously been convicted of a 'prescribed offence', any driver's licence or learner's permit held by that person shall be cancelled.

7 For the purposes of s 75 of the Road Traffic Act, the term 'prescribed offence' includes offences against s 63 and s 64 of the Act.

8 Pursuant to reg 15 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA), made under the Road Traffic Act, the minimum age at which a person can hold a driver's licence which allows them to drive without supervision is 17 years. Their licence is provisional until they have held a driver's licence for two years, and are 19 years of age or over (Road Traffic (Authorisation to Drive) Regulations, r 9, Road Traffic Act s 104(2)).

9 Section 75(2a) does not apply to holders of a provisional driver's licence (Road Traffic Act, s 75(2c)). Rather, s 51 of the Road Traffic Act provides that where a provisional licence holder commits one of a number of driving offences outlined within the section, or is disqualified from holding a licence by a court pursuant to the Act or any other Act, the provisional licence is cancelled. The section provides that such a person will be disqualified from holding or obtaining a driver's licence for the later of any period for which he or she is so disqualified by the court, or a period of three months from the date of the latest conviction. As the court convicting a person of any contravention of s 63 or s 64 of the Road Traffic Act is required to disqualify that person from holding a driver's licence for varying minimum periods, s 51 will apply to all provisional licence holders committing offences against s 63 or s 64. So, in the case of holders of a provisional licence, s 51 of the Road Traffic Act results in cancellation of that licence in much the same way as s 75(2a) would, if it applied.

10 Section 49 of the Road Traffic Act creates the offence of driving while unlicensed. The maximum penalty for that offence depends upon the circumstances giving rise to the offender's lack of a licence, including the circumstance that the person's licence was cancelled.

11 The Young Offenders Act applies to persons who commit offences when they are under 18 years of age (s 4).

12 The main objectives of the Young Offenders Act are set out in s 6, and include enhancing and reinforcing the role of responsible adults, families and communities in rehabilitating young persons who have committed offences towards the goal of their becoming responsible citizens, and integrating young persons who have committed offences into the community.

13 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. It has been described as having a 'rehabilitative purpose', consistent with the objectives of rehabilitation and reintegration in the community expressed in s 6 of the Act - see, for example, Colbung v The State of Western Australia [2010] WASCA 217 [25]; B (a child) v Hepple [2013] WASC 303 [37]. The section provides (relevantly):

1. 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.

...

(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.

14 Section 6 and s 7 of the Spent Convictions Act 1988 (WA) (Spent Convictions Act) enable applications to be made which, if granted, have the effect that a conviction is spent. Section 4 of that Act provides that s 6 and s 7 do not apply to a conviction to which s 189 of the Young Offenders Act applies. However, as I noted above, s 189(9) of the Young Offenders Act provides that pt 3 of the Spent Convictions Act has effect in relation to a conviction that, under that section, is not to be regarded as a conviction as if it were a spent conviction under the Spent Convictions Act.

15 Part 3 of the Spent Convictions Act includes s 25 which provides that 'a reference in a written law of this State ... to a conviction of a person for an offence does not include a reference to a spent conviction'.

16 The facts giving rise to the issue of law to which I have referred are not contentious.

17 On 30 June 2003 the respondent was convicted in the Children's Court of the offence of driving with a blood alcohol content in excess of 0.08%, contrary to s 64(1) of the Road Traffic Act. The offence was committed on 3 April 2003, when the respondent was 17 years of age. Amongst the penalties imposed as a consequence of the respondent's conviction was an order disqualifying him from holding or obtaining a driver's licence for five months. No spent conviction order was made pursuant to s 39 of the Sentencing Act 1995 (WA).

18 On 20 March 2009, the respondent was convicted of driving under the influence of alcohol contrary to s 63(1) of the Road Traffic Act. That offence was committed on 6 November 2008, which was, of course, more than two years after his earlier conviction, with the consequence that s 189 of the Young Offenders Act was potentially engaged in relation to that earlier conviction. The court convicting the respondent on the second occasion ordered, amongst other things, that he be disqualified from holding or obtaining a driver's licence for six months. In addition, notwithstanding the potential engagement of s 189 of the Young Offenders Act, the Director General of the Department of Transport purported to cancel the respondent's licence pursuant to s 75(2a) of the Road Traffic Act, on the basis of his prior conviction of an offence against s 64(1) of the Act.

19 On 10 June and again on 19 August 2011, the respondent drove a motor vehicle on a public road. He was charged by prosecution notice with two counts of driving while unlicensed, in circumstances in which his licence had been cancelled, contrary to s 49 of the Road Traffic Act. One of those counts is the subject of the appeal brought by Mr Pavlovic, and the other count is the subject of the appeal brought by Mr Henshaw. Each prosecution depended upon the proposition that the respondent's licence had been properly cancelled pursuant to s 75(2a) of the Road Traffic Act. That proposition underpins each appeal. As there is no material difference in the circumstances giving rise to each count, and therefore to each appeal, there is no need to distinguish between the appeals in these reasons.

20 The charges came before the Magistrates Court in January 2012. The respondent admitted that he had been convicted of each of the two drink driving offences, and further admitted that he drove a motor vehicle on a public road on both 10 June and 19 August 2011. His only ground of defence to each charge was the assertion that s 189 of the Young Offenders Act had the effect that his first conviction, of an offence committed while he was a young offender, was not to be considered as a previous conviction for the purposes of s 75(2a) of the Road Traffic Act.

21 The magistrate upheld the respondent's contention. He observed:

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.

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(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 committed 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 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 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, cancelled - I find both charges not proven. I enter judgments of acquittal in relation to those two charges.

22 Each complainant appealed against the respondent's acquittal. They contended that s 189(8)(d) had the effect that the section did not affect any cancellation or disqualification that occurred by the operation of s 75(2a) of the Road Traffic Act.

23 The judge of the General Division who heard the appeals rejected that contention. He referred to what he described as a 'protective doctrine for young offenders' [17] revealed in decisions such as Hayden v Webb (1987) 5 MVR 283 (which was concerned with s 40 of the Child Welfare Act 1947 (WA)). His Honour also referred to the decisions in P (a child) v The Queen (1997) 94 A Crim R 593 and Anderson v Edwards [2003] WASCA 59, which he considered provided guidance to the proper approach to the particular issue of statutory interpretation with which he was confronted. His Honour concluded:

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.

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] 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 [24] - [25].

24 His Honour therefore concluded that the magistrate was correct to conclude that s 75(2a) of the Road Traffic Act did not authorise the cancellation of the respondent's driving licence, and therefore was also correct to conclude that the respondent was not driving without authority on the two occasions in 2011 which were the subject of the charges. His Honour did not express any view as to the proper construction and effect of s 189(8)(d), other than the conclusion that it did not apply to these cases.

25 Each complainant has appealed to this court from the dismissal of their appeal to the judge of the general division. It is unnecessary to set out the ground of appeal, which embodies the contention pressed below to the effect that s 189(8)(a) of the Young Offenders Act had the effect that s 189 of that Act had no effect upon a cancellation or disqualification of a driving licence that occurred by operation of s 75(2a) of the Road Traffic Act. Each appeal turns on the question of whether that proposition should be accepted.

26 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).

27 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).

28 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).

29 It is clear that there is no previously decided case directly on the point which arises in these appeals. However, the judge of the general division considered that the cases to which he referred provided guidance to the question of statutory construction before him. With respect, for the reasons which follow, I do not agree.

30 As I have noted, Hayden v Webb concerned the operation of s 40 of the now repealed Child Welfare Act 1947 (WA). At the time relevant to the decision, that section provided that:

40. ...

(2) Where a child is convicted of an offence and ...

(b) a period of 2 years has expired since

(i) the date of conviction; or

(ii) the discharge of any sentence or order imposed in relation to the conviction,

whichever is the later,

that conviction shall, subject to the revisions of this section, be deemed not to be a conviction for any purpose including the purposes of any enactment imposing or authorising or requiring the imposition of any disqualification or disability on a convicted person except in relation to [matters not here relevant].

(3) The provisions of this section do not affect:

(a) the right of any person to appeal against his conviction or to rely thereon in bar of any subsequent proceedings for the same offence;

(b) the revesting or restoration of any property in consequence of the conviction;

(c) the right of the court to disqualify a person from holding or obtaining a driver's licence issued under the Road Traffic Act 1974; or

(d) the operation of s 39C(1).

31 It will be noticed that although the repealed section appears, at first sight, to bear some superficial resemblance to s 189 of the Young Offenders Act, it differs in two respects that are most material to the issue presently before the court. First, subsection 2(b) of the repealed section specifically provides that a young offender's conviction is, after expiry of the period of two years, to be deemed not to be a conviction for the purpose of an enactment imposing or requiring the imposition of any disqualification or disability (such as a disqualification from driving). There was no equivalent provision in s 189. Second, although subsection (3) of the now repealed section is similar in structure to s 189(8), critically, the repealed section contains no provision equivalent to s 189(8)(d), which expressly provides that the section is to have no effect upon any cancellation or disqualification that occurs by operation of any written law. That provision has the effect of reversing the provision in s 40(2)(b) which specifically required the prior conviction to be excluded for the purposes of any enactment requiring the imposition of a disqualification or disability.

32 Because of these critical differences in the relevant statutory provisions, the decision in Hayden v Webb to the effect that the appellant's prior conviction of an offence committed while under the age of 18 was not to be treated as a prior conviction for the purposes of determining the penalty to be imposed upon his subsequent conviction for failing to provide a sample of breath for analysis is of no assistance in the resolution of this case, especially given that counsel for the respondent in that case expressly conceded that this was the effect of the proper interpretation of s 40(2)(b) of the now repealed Act.

33 In P (a child), the appellant, who was under the age of 18, pleaded guilty to one count of burglary in the Children's Court. At the time of his conviction on that plea, he had already committed and been convicted of three previous home burglaries. The question before the court was whether, notwithstanding s 189 of the Young Offenders Act, those prior convictions had the effect of requiring a mandatory minimum term of 12 months detention to be imposed upon conviction of the subsequent offence.

34 The decision turned upon the construction which the court placed upon s 189(7) of the Young Offenders Act, and in particular par (b) of that section (which was then in the same terms as now). The case concerned the operation of provisions of the Criminal Code with respect to mandatory minimum sentences rather than provisions of the Road Traffic Act with respect to cancellation of driving licences, with the consequence that it was unnecessary for the court to pay any regard to s 189(8).

35 In that context, the court construed s 189(7)(b) as effectively defining the circumstances in which convictions otherwise falling within the scope of the section could be taken into account in proceedings for a subsequent offence and, because in the case before the court, those proceedings were neither under the Young Offenders Act nor on indictment, the court concluded that the prior convictions could not be taken into account.

36 In my respectful view, that decision is so far removed from the issue which arises in the present case as to be of no assistance. In particular, as I have noted, no consideration was given to s 189(8), or to the Road Traffic Act.

37 The judge of the general division referred to his own earlier decision in Anderson v Edwards. He characterised the decision as 'no more than a direct application of P (a child)' (Henshaw v Spooner [2012] WASC 484 [20]). I respectfully agree. Because no question arose in the case with respect to the operation and effect of s 189(8)(d) in the context of the provisions of the Road Traffic Act relating to the cancellation of driving licences, the decision is, with respect, of no assistance, for the same reason as the decision in P (a child) is of no assistance.

38 The trial judge relied upon my decision in T v Bolitho [2010] WASC 30; (2010) 198 A Crim R 417 to support his conclusion that s 25 of the Spent Convictions Act, which in his view applied by virtue of s 189(9) of the Young Offenders Act, provided an alternative justification for the conclusion that the respondent's first drink driving conviction was not to be regarded as a previous conviction for the purposes of s 75(2a) of the Road Traffic Act.

39 In Bolitho the appellant was convicted of possessing a prohibited drug with intent to sell or supply. He had previously been convicted of two drug offences. Spent conviction orders were made in respect of both previous convictions. After he was convicted of the later offence, an application was made to declare him a drug trafficker under the Misuse of Drugs Act 1981 (WA). To establish whether the person was a drug trafficker, it was necessary for the prosecutor to prove that the person had been convicted of two or more serious drug offences within a period of 10 years. One issue raised was whether the prior spent convictions could be considered in declaring the person a drug trafficker. The magistrate concluded that s 45(5)(a)(ii) of the Sentencing Act required that she have regard to the appellant's spent convictions when considering whether he was a drug trafficker under the Misuse of Drugs Act.

40 Section 45 of the Sentencing Act provided as follows:

(1) Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -

(a) it considers 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.

(2) A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.

(3) The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.

(4) A spent conviction order is to be taken as part of the sentence imposed.

(5) A spent conviction order in respect of a conviction does not affect -

(a) the right or duty of a Court to -

(i) disqualify the offender from holding or obtaining a driver's licence under the Road Traffic Act 1974;

(ii) make any order under this Act or any other written law on convicting the offender;

(b) the operation of any provision of the Road Traffic Act 1974, or Part 15, relating to the cancellation of, or disqualification from holding or obtaining, a driver's licence under that Act;

(c) the duty of the offender to comply with the sentence imposed or 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; or

(f) any right of appeal against the conviction or the sentence imposed.

(6) A spent conviction order in respect of a conviction does not prevent -

(a) proceedings to enforce, or for a variation or contravention of, the sentence;

(b) subsequent proceedings against the offender for the same offence.

41 My reasons for concluding that the magistrate was in error are evident in the following passage:

There is a unifying characteristic of all the paragraphs of s 45(5); that is, they all make provision limiting the consequences of a spent conviction order with respect to the conviction to which it applies. The effect of s 45(5)(b), as the magistrate pointed out, is that notwithstanding the making of a spent conviction order, the operation of provisions of the Road Traffic Act relating to the cancellation or disqualification of a licence still apply, and the effect of s 45(5)(c) is that the duty of the offender to comply with the sentence imposed still applies, notwithstanding the making of the spent conviction order. So by s 45(5)(c), in 2006 when the fines were imposed upon the appellant, it was his duty to pay those fines, notwithstanding the fact that spent conviction orders were entered.

In s 45(5)(a)(ii), the reference to making an order 'on convicting the offender' is a reference to the making of an order on convicting the offender of the offence to which the spent conviction order applies. No order was or could have been made to the effect that T was a drug trafficker upon his conviction of the two offences in respect of which spent conviction orders were made in 2006. He was, however, said to be liable to be declared a drug trafficker following his conviction on 10 February 2009 in respect of which no spent conviction order was made. Therefore, the magistrate was, with respect, in error in applying s 45(5)(a)(ii) to the circumstances which were before her because she did not make a spent conviction order when convicting the appellant on 10 February 2009 [48].

42 Put another way, the decision in Bolitho turned upon my conclusion that, on its proper construction, s 45(5)(a)(ii) of the Sentencing Act only applied to orders made by a court imposing a spent conviction order pursuant to s 39 of that Act. As the court considering the consequences of the appellant's third conviction was not such a court, the section had no application and the magistrate had erred in that respect.

43 This is obviously a very different question to the question now before the court, which concerns the proper construction of s 189(8)(d) of the Young Offenders Act. For reasons which I will shortly develop, it is not reasonable to construe that provision as applying only to cancellations or disqualifications occurring as a consequence of a conviction falling within s 189(2). It follows that the line of reasoning which I applied in Bolitho has no application to s 189(8)(d).

44 For these reasons, the task of construing s 189 of the Young Offenders Act must be approached without the benefit of prior authority.

45 The general effect of s 189 of the Young Offenders Act is to provide that after a period of two years has expired since the date of conviction or the discharge of any sentence imposed upon a young offender, the conviction is to be disregarded. However, this effect is subject to a number of constraints provided by the express terms of the section. Section 189(1) provides that the section does not apply in relation to a conviction of murder, attempted murder or manslaughter. Section 189(7) provides that the section does not prevent, amongst other things, subsequent proceedings that may be taken under the Young Offenders Act or on indictment in relation to an offence to which the section applies or in relation to a subsequent offence. As I have noted, that provision was construed in P (a child).

46 The focus of this appeal is upon the constraints to the operation of the section expressly provided by s 189(8) and in particular by s 189(8)(d). Relevantly that paragraph provides that the section does not affect 'any cancellation or disqualification that occurs by operation of any written law'. Section 75(2a) of the Road Traffic Act is (obviously) a written law which effects a cancellation in the circumstances described in that provision. It follows that the natural and ordinary meaning of the language used in s 189(8)(d) is to the effect that s 189(2) does not affect the operation of s 75(2a) of the Road Traffic Act.

47 As I have already observed, the natural and ordinary meaning of the language used in any statutory provision is the best and most reliable guide to the presumed intention of the legislature. However, the respondent contends, and each of the magistrate and the judge of the general division concluded, that s 189(8)(d) should not be given its natural and ordinary meaning, but read down in such a way that it did not apply to the respondent's circumstances. The magistrate construed the provision as only applying to a cancellation or disqualification which followed from the conviction coming within the terms of the section, thus excluding a cancellation or disqualification arising from a subsequent conviction. It is, with respect, not clear from the reasons given by the judge of the general division what meaning he would attribute to s 189(8)(d). His conclusion that it did not apply to the respondent's circumstances appears to have been driven by his reliance upon the earlier decisions to which he referred, and his attribution of an objective or purpose to the legislature which was consistent with those decisions. The obvious difficulty with that approach is that it does not give primary or, indeed, any regard to the natural and ordinary meaning of the language used by the legislature in the relevant provision, which is s 189(8)(d).

48 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.

49 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.

50 In an attempt to provide some meaning and effect to the narrow reading of s 189(8)(d) for which he contends, the respondent points to s 51 of the Road Traffic Act. As I have noted, this section has the effect that a provisional licence will be cancelled upon the conviction of a licence-holder of any of a range of offences, including drink driving offences. It is submitted that s 189(8)(d) was enacted by the legislature to ensure that a provision such as s 51 operates notwithstanding the potential application of s 189(2). However, this submission faces the same fundamental difficulty, in that s 189(2) can only operate after two years have elapsed following conviction. Cancellation of a provisional licence pursuant to s 51 of the Road Traffic Act will, however, occur immediately upon conviction with the result that s 189(2) can have no potential application to its operation.

51 In oral submissions, counsel for the respondent submitted that s 189 of the Young Offenders Act could come into operation earlier than two years after conviction if a youth community-based order was made. In such a case, s 189(5) provides that the conviction is not to be regarded as a conviction for any purpose, except as otherwise provided in the section, irrespective of the lapse of two years. Accordingly, counsel submitted that s 189(8)(d) should be construed as applying to such a circumstance and ensuring that any cancellation or disqualification by operation of law as a consequence of that conviction took effect. Section 189(8)(d) would seem to have that effect. However, that provides no reason to construe the section as only having that effect, especially given the breadth of the language used ('any cancellation or disqualification').

52 Counsel for the respondent further endeavoured to provide some justification for a narrow reading of s 189(8)(d) by reference to the possibility that the cancellation or disqualification to which the paragraph refers might come into operation more than two years after conviction such as, for example, a disqualification from holding an office or obtaining some form of licence other than a driving licence, such as licences issued pursuant to the provisions of the Local Government Act 1995 (WA). However, this proposition faces the same difficulty as the argument relying upon s 189(5) - namely, the possibility that s 189(8)(d) could operate in this way does not support the conclusion that it was the legislative intention that it only operate in that way.

53 The respondent also relies upon the rehabilitative purpose evident in a number of provisions of the Young Offenders Act, including s 189. This was essentially the process of reasoning relied upon by the judge of the general division in order to sustain his conclusion that parliament could not have intended that a previous conviction by a young offender should be taken into account for the purposes of s 75(2a) of the Road Traffic Act.

However, as I have already observed, the difficulty with this proposition is that it does not take into account the natural and ordinary meaning of the language used in s 189(8)(d). Further, even if the matter is to be viewed entirely from a policy perspective, without giving due regard to the wording of the section, it is at least arguable that parliament may have intended that young offenders who assume the privileges of adulthood, such as the privilege of driving, should be bound by the consequences of misuse of that privilege, in the same way as adult offenders.

54 Finally, the respondent relies upon s 25 of the Spent Convictions Act which is said to apply by reason of s 189(9). As I have noted, this was another line of reasoning adopted by the judge of the general division. However, there is a fatal circularity in this line of argument. 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.

55 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.

56 For these reasons, each appeal should be allowed, the decision of the magistrate quashed, and instead a conviction entered on each charge, and each matter remitted to the Magistrates Court for sentence.

57 BUSS JA: These prosecution appeals raise a question of law as to the proper construction of s 189(8)(d) of the Young Offenders Act 1994 (WA).

58 Section 189(2)(b) of the Young Offenders Act provides, relevantly, that if a 'young person' (as defined in s 3 of the Act) is convicted of an offence and a period of 2 years has expired since 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 s 189.

59 By s 189(8)(d), s 189 does not affect any cancellation or disqualification that occurs by operation of any written law.

60 Section 75(2a) of the Road Traffic Act 1974 (WA) provides, relevantly, that where a person is disqualified from holding or obtaining a driver's licence upon being convicted of a 'prescribed offence' (as defined in s 75(6) of the Act), and that person has previously been convicted of a prescribed offence, any driver's licence held by that person shall by force of s 75 be cancelled.

61 The question of law in these appeals is whether the conviction of a person for a 'prescribed offence' (as defined in s 75(6) of the Road Traffic Act) committed while the person was a 'young person' (as defined in s 3 of the Young Offenders Act) is, after a period of 2 years has expired since the date of conviction, if no sentence that required to be discharged was imposed as a result of the conviction, to be regarded as a previous conviction for the purposes of s 75(2a) of the Road Traffic Act.

62 The answer to the question is 'yes'. I agree with the orders proposed by Martin CJ, with whose reasons Hall J has expressed his agreement. My reasons are as follows.

63 The respondent was born on 24 February 1986.

64 On 30 June 2003, the respondent was convicted in the Children's Court of Western Australia of the offence of driving a motor vehicle with a blood alcohol content of or above 0.08%, contrary to s 64(1) of the Road Traffic Act (the Initial Offence). This offence was committed on 3 April 2003. The court ordered that the respondent be disqualified from holding or obtaining a driver's licence for 5 months. A spent conviction order under s 39 of the Sentencing Act 1995 (WA) was not made.

65 At all material times the Initial Offence was a 'prescribed offence' for the purposes of s 75(2a) of the Road Traffic Act.

66 The respondent was under the age of 18 when he committed the Initial Offence and when he was convicted of it. At those times he was a 'young person' for the purposes of the Young Offenders Act.

67 Also, when the respondent committed the Initial Offence, and when he was convicted of it, he held a provisional driver's licence.

68 On 20 March 2009, the respondent was convicted in the Magistrates Court of Western Australia of the offence of driving a motor vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, contrary to s 63(1) of the Road Traffic Act (the Triggering Offence). This offence was committed on 6 November 2008. The court ordered that the respondent be disqualified from holding or obtaining a driver's licence for 6 months.

69 The Triggering Offence was a 'prescribed offence' for the purposes of s 75(2a) of the Road Traffic Act.

70 When the respondent committed the Triggering Offence, and when he was convicted of it, he held a driver's licence that was not provisional.

71 Absent any issue arising from the application of s 189 of the Young Offenders Act on the operation of s 75(2a) of the Road Traffic Act, as a result of his conviction for the Triggering Offence and the imposition of the disqualification from holding or obtaining a driver's licence, by s 75(2a) the respondent's driver's licence was, by force of s 75, cancelled.

72 On 20 August 2011, the respondent was charged with two counts of driving a motor vehicle on a road while not authorised under pt IVA of the Road Traffic Act to do so, contrary to s 49(1)(a) read with s 49(3)(b) of the Road Traffic Act. These offences were allegedly committed on 10 June 2011 and 19 August 2011.

73 At the hearing of these charges in the Magistrates Court, the respondent admitted he was driving a motor vehicle on the relevant occasions, but argued he was authorised under pt IVA in that he held a valid driver's licence.

74 Magistrate Hall decided that, by reason of s 189(2) of the Young Offenders Act, the Initial Offence was not a conviction for the purposes of s 75(2a) of the Road Traffic Act. Consequently, his Honour held that the respondent's driver's licence had not been cancelled by force of s 75. His Honour therefore acquitted the respondent of the charges.

75 The prosecutors applied for leave to appeal against the magistrate's decision to acquit the respondent. Leave to appeal was granted. The appeals were heard by EM Heenan J. On 11 December 2012, his Honour dismissed the appeals. See Henshaw v Spooner [2012] WASC 484.

76 Each appellant relies on one ground of appeal. The grounds are in substance identical. The ground in CACR 9 of 2013 reads:

The learned Appeal Judge erred in law in:

(a) concluding that:

(i) by application of s 189(2) of the Young Offenders Act 1994 (WA) (YO Act), the respondent's conviction for an offence against s 64 of the Road Traffic Act 1974 (WA) (RT Act) committed on 3 April 2003 (Initial Offence) could not be regarded as a conviction for the purposes of s 75(2a) of the RT Act; and

(ii) 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 10 June 2011, when the respondent drove a 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 RT Act is a 'cancellation or disqualification that occurs by operation of any written law' for the purposes of s 189(8)(d) of the YO Act;

(ii) the respondent's conviction for the Initial Offence could be, and was 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 10 June 2011 when the respondent drove a motor vehicle on a road.

77 Part IVA of the Road Traffic Act comprises s 41A - s 48A, and is headed 'Authorisation to drive'.

78 Section 42(1) provides that regulations under the Act, together with pt IVA, are to provide for a driver licensing scheme under which, relevantly, the Director General (as defined in s 5(1)) grants people licences to drive motor vehicles on roads.

79 Regulation 15(1) of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) provides:

The minimum age that a person has to have reached to hold a driver’s licence is -

(a) except as stated in paragraph (b), 17 years of age;

(b) for a driver’s licence that is endorsed with condition N and authorises the person to drive only a vehicle of class R, 16 years of age.

80 By reg 22(1), the Director General may, in a particular case, waive the requirement in reg 15(1) that a person holding a licence have reached the age fixed in that provision if denial of a licence would occasion undue hardship and the requirements of subreg (2) or (3) of reg 22 that apply are satisfied.

81 Regulation 9 provides, relevantly, that a driver's licence granted to a person is a 'provisional licence' if the person has not reached 19 years of age.

82 Section 75(2a) of the Road Traffic Act reads:

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 a prescribed offence any driver’s licence or learner’s permit held by that person shall by force of this section be cancelled.

83 By s 75(2c), relevantly, a reference in s 75(2a) to 'a driver's licence held by a person' does not include reference to a provisional licence.

84 Section 75(6) provides that in s 75 'prescribed offence' means an offence against:

(a) section 63, 64 or 64AB of this Act; or

(b) section 67 of this Act as enacted after the coming into operation of section 16 of the Road Traffic Amendment Act (No 2) 1982 or section 67AA of this Act; or

(c) section 67 of this Act as in force before the coming into operation of section 16 of the Road Traffic Amendment Act (No 2) 1982 being an offence of failing to comply with a requirement to provide a sample of breath for analysis or to allow a sample of blood to be taken for analysis.

85 Section 63 creates the offence of driving or attempting to drive a motor vehicle while under the influence of alcohol, drugs or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle. Section 64 creates the offence of driving or attempting to drive a motor vehicle while having a blood alcohol level of or above 0.08%. Section 64AB creates the offence of driving or attempting to drive a motor vehicle while impaired by drugs. Section 67 creates the offence of failing to comply with a requirement of a member of the police force to provide a sample of breath, blood or urine for analysis.

86 Section 51 makes special provision for the automatic cancellation of a provisional licence in some cases. By s 51(1), relevantly, when the holder of a driver's licence that is a provisional licence is convicted of an offence under specified provisions of the Criminal Code (WA) or the Road Traffic Act, that licence is, by operation of s 51(1), cancelled. The specified provisions of the Road Traffic Act include, for example, s 64A, which makes it an offence for certain persons to drive or attempt to drive a motor vehicle while having a blood alcohol level of or above 0.02%, and s 64AC, which creates the offence of driving or attempting to drive a motor vehicle while a prescribed illicit drug is present in the person's oral fluid or blood. Neither s 64A nor s 64AC is a 'prescribed offence' as defined in s 75(6). The area of operation of s 51 is significantly broader and more extensive than the area of operation of s 75(2c).

87 In s 3 of the Young Offenders Act 'young person' is defined to mean, relevantly, a person who has not reached the age of 18 years.

88 By s 4, if a person commits or allegedly commits an offence before reaching the age of 18 years, the Act applies to the person as a young person for purposes connected with that offence or any order that was made in dealing with the person for that offence.

89 Section 6 enumerates the main objectives of the Act. They include:

(a) enhancing and reinforcing the roles of responsible adults, families and communities in punishing and managing young persons who have committed offences and rehabilitating young persons who have committed offences towards the goal of their becoming responsible citizens; and

(b) integrating young persons who have committed offences into the community.

90 Section 7 provides, relevantly:

The general principles that are to be observed in performing functions under this Act are that -

...

(b) a young person who commits an offence is to be dealt with, either formally or informally, in a way that encourages the young person to accept responsibility for his or her conduct;

...

(d) the community must be protected from illegal behaviour;

...

(h) detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary;

...

(j) punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;

91 By s 46, relevantly:

(1) When dealing with a young person who has been found guilty of an offence, the court, in disposing of the matter, is to apply -

(a) the principles applying generally for disposing of charges of offences, except as those principles are modified by this Act; and

(b) the general principles of juvenile justice.

(2) The court is to consider any information about the offender or the offence that may assist the court to decide how to dispose of the matter, and in particular -

(a) the nature and seriousness of the offence; and

(b) any history of offences previously committed by the offender; and

(c) the cultural background of the offender; and

(d) any order previously made by a court when disposing of a charge of an offence that still applies to the offender, and any further order that is liable to be imposed if the offender does not comply with the terms of any such order; and

(e) the extent, if any, to which any person was affected as a victim of the offence.

(3) The court is to dispose of the matter in a way that is in proportion to the seriousness of the offence and is consistent with the treatment of other young persons who commit offences.

(4) In deciding how to dispose of the matter, which includes deciding the appropriate degree of severity to be used, the court is to consider how young the offender is as a mitigating factor.

92 Section 46A makes provision as to the particular application, in certain circumstances, of the Sentencing Act in respect of the sentencing of a young person.

93 Section 55(1)(a) provides, relevantly, that if the court finds a young person guilty of a 'Schedule 1 offence' or a 'Schedule 2 offence', the court is required to record a conviction unless it is prevented from doing so by s 55(5) or it is satisfied that there are exceptional reasons for not doing so.

94 Schedule 1 offences include the offences created by s 63, s 64, s 64AB and s 67 of the Road Traffic Act and a number of other serious offences created by that Act.

95 Schedule 2 offences include the very serious offences of dangerous driving occasioning death or grievous bodily harm and dangerous driving causing bodily harm created by s 59 and s 59A of the Road Traffic Act.

96 Section 55(5) provides that if a young person is found guilty of an offence and, under s 66 or s 67, the court refrains from imposing any punishment, the court is not to record a conviction.

97 However, by s 55(4):

Although a conviction is not recorded, the offender is deemed to have been convicted for the purpose of the making, under this Act or any other written law, of any order that may be, or is required to be, made upon convicting a person of such an offence or for the purpose of the operation of any provision of the Road Traffic Act 1974 relating to the cancellation of, or disqualification from holding or obtaining, a driver’s licence under that Act or for the purpose of an appeal under the Criminal Appeals Act 2004 (but not for any other purpose).

98 By s 189:

(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.

99 The term 'written law', appearing in s 189(8)(d), means all Acts for the time being in force and all subsidiary legislation for the time being in force. See s 5 of the Interpretation Act 1984 (WA).

100 Section 3(1) of the Sentencing Act provides, relevantly, that subject to s 3, the Act applies to all persons convicted of an offence.

101 By s 3(2), in the case of a person who is a 'young person', as defined in the Young Offenders Act, s 3(1) is subject to s 46 and s 46A of the Young Offenders Act.

102 Section 39(2) provides that, subject to s 41 to s 45, a court sentencing an offender may, relevantly, with or without making a 'spent conviction order':

(a) under pt 6 impose no sentence and order the release of the offender (par (a));

(b) under pt 7 impose a conditional release order and order the release of the offender (par (b));

(c) under pt 8 impose a fine and order the release of the offender (unless an order under s 58 is made) (par (c)); or

(d) under pt 9 impose a community based order and order the release of the offender (par (d)).

103 By s 45(2), a 'spent conviction order' in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988 (WA).

104 Section 45(5) provides, relevantly:

A spent conviction order in respect of a conviction does not affect -

(a) the right or the duty of a court to -

(i) disqualify the offender from holding or obtaining a driver's licence under the Road Traffic Act 1974;

(ii) make any order under this Act or any other written law on convicting the offender;

(b) the operation of any provision of the Road Traffic Act 1974, or Part 15, relating to the cancellation of, or disqualification from holding or obtaining, a driver's licence under that Act;

...

(e) any cancellation or disqualification that occurs by operation of any written law;

105 By s 3(1) of the Spent Convictions Act, in the Act, unless the contrary intention appears, 'spent conviction' means a conviction that is spent under s 6, s 7 or s 8 or that is spent by virtue of a spent conviction order made under s 39 of the Sentencing Act.

106 Section 4(1)(a) provides that s 6 and s 7 do not apply to a conviction to which s 189 of the Young Offenders Act applies.

107 Section 8 is concerned with convictions for offences against Commonwealth law or the law of another State or of a Territory.

108 Part 3 comprises s 12 - s 28, and is headed 'Effect of a conviction becoming spent'.

109 Section 12 provides that pt 3 applies to:

(a) a dismissal under -

(i) section 669(1)(a) of The Criminal Code; and

(ii) section 34 or 34B of the Child Welfare Act 1947;

(ab) a conviction that under section 20 of the Offenders Community Corrections Act 1963 was deemed not to be a conviction; and

(ac) a conviction that under section 40(2) of the Child Welfare Act 1947 was deemed not to be a conviction; and

(b) a charge formally made in court that a person has committed an offence where -

(i) the charge is withdrawn; or

(ii) the charge is disposed of without a conviction being recorded,

as if the dismissal or charge were a spent conviction.

110 By s 13, pt 3 has effect notwithstanding any other written law.

111 Section 25(1) provides that a reference in a written law of this State (other than the Spent Convictions Act) to a conviction of a person for an offence does not include a reference to a 'spent conviction'.

112 The primary judge said the 'essential issue' for his determination was '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' [16]. Later, however, his Honour said 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' [24]. His Honour then said the relevant question was '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"' [24]. On this analysis, the question was 'whether or not the offences committed more than two years before by a young offender can be counted as previous convictions within the meaning of s 75(2a)' [24].

113 His Honour answered the question he ultimately posed as follows:

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 [24].

114 The primary judge then noted a submission by counsel for the respondent based on s 25 of the Spent Convictions Act:

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 [25].

115 His Honour accepted the respondent's submission:

With respect, I consider that that submission should also be accepted as another ground for reaching the conclusion which I have earlier expressed [25].

116 The primary judge said he was therefore satisfied that no error had been demonstrated in the magistrate's decision in each appeal [26].

117 Counsel for the respondent contended in substance that the primary judge's conclusions were correct, generally for the reasons he gave.

118 Counsel also submitted that the respondent held a provisional licence when he committed and was convicted of the Initial Offence, and s 75(2a) of the Road Traffic Act does not apply where the person concerned held a provisional licence when he or she was convicted of the first or initial 'prescribed offence'.

119 Counsel argued that s 189(8)(d) of the Young Offenders Act is restricted in its operation to a cancellation or disqualification that occurs, by operation of any written law, upon a conviction for a single discrete offence. That is, s 189(8)(d) applies only to a cancellation or disqualification that occurs as a result of a conviction for a single discrete offence, and not to a cancellation or disqualification that occurs as a result of that conviction combined with a subsequent conviction entered more than 2 years after the earlier conviction.

120 It was also submitted on behalf of the respondent that the text of s 189(8)(d) should be given a restrictive construction, partly because the object of the Young Offenders Act is to rehabilitate young offenders and partly because of the more specific language in other provisions of s 189(8) and s 189 generally.

121 The modern approach to statutory construction is purposive. The statutory text is the surest guide to 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 Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ); Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ).

122 Where two or more statutory enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly. See Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 726 (Griffith CJ); R v Wheeldon [1978] FCA 11; (1978) 33 FLR 402, 405 - 406 (Bowen CJ, Blackburn & Fisher JJ); Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 722 - 724 (Kirby P); Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65 [42] (Muir J); Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245 [64] (Buss JA).

123 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 inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand (722).

124 Various provisions of the Road Traffic Act, the Young Offenders Act, the Sentencing Act and the Spent Convictions Act create an overlapping legislative scheme governing, amongst other things:

(a) the legal effect of a court finding a young person guilty of a 'prescribed offence' (as defined in s 75(6) of the Road Traffic Act) but not recording a conviction; and

(b) the legal effect of a court convicting a young person of a 'prescribed offence' (as defined in s 75(6) of the Road Traffic Act).

125 Section 42(1) of the Road Traffic Act, together with reg 15(1) and reg 22(1) of the Road Traffic (Authorisation to Drive) Regulations, expressly provide for a driver licensing scheme under which the Director General grants to people (including children aged 17 years and, in certain circumstances, younger children) licences to drive motor vehicles on roads.

126 Section 75(2a) provides that where a person is disqualified from holding or obtaining a driver's licence upon being convicted of a 'prescribed offence' (as defined in s 75(6)), other than an offence against s 64, and that person has previously been convicted of a 'prescribed offence', any driver's licence held by that person shall, by force of s 75, be cancelled. The cancellation is automatic and immediate upon the conditions specified in s 75(2a) being satisfied. No order of a court is necessary.

127 By s 75(2c), relevantly, a reference in s 75(2a) to 'a driver's licence held by a person' does not include reference to a provisional licence. So, s 75(2a), in referring, relevantly, to 'any driver's licence ... held by that person shall by force of this section be cancelled', is concerned solely with the cancellation of any driver's licence, other than a provisional licence, that is held by the person in question.

128 Although s 75(2a) operates to cancel a driver's licence that is not a provisional licence, neither s 75 nor any other provision of the Road Traffic Act qualifies or restricts the operation of s 75(2a) where the person concerned committed or was convicted of the first or initial 'prescribed offence' while he or she held a provisional licence.

129 The unequivocal meaning conveyed by the text of s 75(2a) in the context of the Road Traffic Act as a whole, without regard to the Young Offenders Act, is that s 75(2a) operates to cancel a person's driver's licence (other than a provisional licence):

(a) regardless of the age at which the person committed or was convicted of either or both of the 'prescribed offences' in question; and

(b) irrespective of the period of time that has elapsed since the person committed or was convicted of the first or initial 'prescribed offence'.

130 Further, the unequivocal meaning conveyed by the text of s 75(2a) in the context of the Road Traffic Act as a whole, without regard to the Young Offenders Act, is that s 75(2a) operates to cancel a driver's licence (other than a provisional licence), notwithstanding that the person held a provisional licence when he or she committed or was convicted of the first or initial 'prescribed offence'.

131 Section 75(2a) is not to be read down by reference to s 51. Section 51 makes special provision for the automatic cancellation of a provisional licence, in some cases, where the holder of the licence has been convicted of a single specified offence under the Road Traffic Act. As I have mentioned, the area of operation of s 51 is significantly broader and more extensive than the area of operation of s 75(2a). However, there is nothing in the evident object or purpose of s 51 or s 75, and nothing in the text of the provisions, that permits or justifies a restrictive construction of s 75(2a). My construction of s 75(2a) does not lead to a result that is absurd or is unreasonable.

132 In The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51, Steytler P, McLure JA and Miller AJA summarised the principles applicable to the sentencing of young persons, as follows:

The principles and considerations to be applied to the sentencing of young offenders are contained in s 7, s 47 and s 120 of the Act. It is unnecessary to detail them here save to note that detaining a young person in custody for an offence must only be used as a last resort and, if required, is only to be for as short a time as is necessary (s 7(h)). The Act places significant emphasis on the sentencing objective of rehabilitation: WO (a child) v Western Australia (2005) 153 A Crim R 352 at 362. As stated in that case, underlying the emphasis on rehabilitation is the long established understanding that the community is best protected by determined efforts to effect the rehabilitation of young offenders. Although retribution, punishment and general deterrence are also relevant sentencing objectives under the Act, they are ordinarily given significantly reduced weight particularly when the offender is still a child [16].

133 So, the primary focus of the Young Offenders Act, in the sentencing of young persons, is on rehabilitation. Section 189(2)(b) of the Young Offenders Act reflects this focus by providing, relevantly, that if a young person is convicted of an offence and a period of 2 years has expired since 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 s 189. Further, this focus is evident in s 189(9), which provides that pt 3 of the Spent Convictions Act has effect in relation to a conviction that, under s 189, is not to be regarded as a conviction as if it were a spent conviction under that Act.

134 However, the Young Offenders Act does not focus solely or without qualification on rehabilitation in the sentencing of young offenders. See CJH v The State of Western Australia [2013] WASCA 139 [41] - [42] (Buss JA, Mazza JA & Jenkins J agreeing) and the cases there cited.

135 Parliament has made special provision in the Young Offenders Act in relation to the legal effect of:

(a) a court's finding of guilt against a young person (where the court has not recorded a conviction); and

(b) a court's conviction of a young person,

in the case of a number of serious or very serious offences.

136 Special provision to this effect in relation to some serious or very serious offences under the Road Traffic Act is embodied in s 55(4) and s 189(8) of the Young Offenders Act.

137 By s 55(4), relevantly, although the court that has found a young person guilty of a Schedule 1 offence or a Schedule 2 offence has not recorded a conviction, the offender is deemed to have been convicted for the purpose of the operation of any provision of the Road Traffic Act relating to the cancellation of, or disqualification from holding or obtaining, a driver's licence under that Act.

138 As I have mentioned, the Schedule 1 offences include the offences created by s 63, s 64, s 64AB and s 67 of the Road Traffic Act. Each of these offences is a 'prescribed offence', as defined in s 75(6) of the Road Traffic Act.

139 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)).

140 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)).

141 Section 189(8)(d) is not restricted to a cancellation or disqualification that occurs upon or as a result of a conviction for a single discrete offence. It extends, relevantly, to a cancellation or disqualification that occurs upon or as a result of a conviction for a single discrete offence combined with a conviction entered more than 2 years previously. The unequivocal meaning conveyed by s 189(8)(d) is that any cancellation or disqualification that occurs by operation of any written law is to have full force and effect, in accordance with its terms, in relation to a person who is, or was at any material time, a young person, notwithstanding any other provision of s 189. Any convictions of a young person are convictions for the purposes of any cancellation or disqualification arising from the operation of any written law, notwithstanding s 189(2) and s 189(9).

142 The breadth and generality of the language of par (d) of s 189(8) is not confined or limited by the language of par (c) of s 189(8). Paragraph (c) specifically refers to the disqualification of a person from holding or obtaining a driver's licence issued under the Road Traffic Act, but does so in the context of a disqualification imposed by a court and not in the context of a disqualification that occurs by force of a statute or subsidiary legislation. Paragraph (c) deals solely with 'disqualifications' and not with 'cancellations or disqualifications'. By contrast, par (d) is concerned with 'any cancellation or disqualification' in the context of cancellations or disqualifications that occur by force of a statute or subsidiary legislation, and not with 'disqualifications' that occur by order of a court. The phrase 'any cancellation or disqualification' in par (d) includes the cancellation or disqualification of a driver's licence issued to a person under the Road Traffic Act where the cancellation or disqualification occurs by force of a statute or subsidiary legislation, in addition to the cancellation or disqualification of any other right, privilege, licence or authorisation etc. Paragraph (c) does not cover the field in relation to the impact of s 189(8) on driver's licences held under the Road Traffic Act.

143 Further, the breadth and generality of the language of par (d) of s 189(8) is not confined or limited by the language of pars (a) and (b) of s 189(8) or by the language of s 189(5) or any other provision of s 189. In particular, the specific subject matter dealt with by each of s 189(5) and pars (a) and (b) of s 189(8) does not, on any reasonable construction of those provisions, circumscribe par (d) of s 189(8).

144 Absent s 189(8)(d), s 189(2) would prevent the cancellation of a person's driver's licence under s 75(2a) of the Road Traffic Act where the person was under the age of 18 years when he or she was convicted of the first or initial 'prescribed offence' and a period of 2 years has expired since the date of conviction, if no sentence that required to be discharged was imposed as a result of the conviction, when he or she commits the second or triggering offence. That is, in the circumstances I have described, absent s 189(8)(d), s 189(2) would 'affect' the cancellation of the person's driver's licence under s 75(2a) of the Road Traffic Act.

145 The ordinary meaning conveyed by the text of s 189(8)(d), in the context of s 189 and the Young Offenders Act as a whole, is that s 189(2) does not 'affect' a cancellation that occurs by force of s 75 of the Road Traffic Act. The manifest intention of s 75 is to withdraw from a person his or her authorisation to drive motor vehicles on roads if the person has been convicted of 'prescribed offences' as described in s 75(2a).

146 A cancellation 'by force of' s 75, within s 75(2a), is a cancellation that occurs 'by operation of' any written law, within s 189(8)(d).

147 Section 189(8)(d) is not ambiguous or obscure. There is no logical or philosophical reason, and no reason in principle or policy, why s 75(2a) should not apply to all people (including people who were under the age of 18 years when they were convicted of their first or initial 'prescribed offences') in accordance with its terms. See HA v Director of Public Prosecutions [2003] NSWSC 347; (2003) 57 NSWLR 653 [14] (Dunford J).

148 By s 25(1) of the Spent Convictions Act, a reference in a written law of this State (other than the Spent Convictions Act) to a conviction of a person for an offence does not include a reference to a 'spent conviction'.

149 The term 'spent conviction' is defined in s 3(1) of the Act to mean a conviction that is spent under s 6, s 7 or s 8 or that is spent by virtue of a spent conviction order made under s 39 of the Sentencing Act.

150 Section 4(1)(a) provides that s 6 and s 7 do not apply to a conviction to which s 189 of the Young Offenders Act applies. Section 6 and s 7 may therefore be disregarded for the purposes of these appeals.

151 Section 8, which is concerned with convictions for offences against Commonwealth law or the law of another State or of a Territory, may also be disregarded.

152 The effect of s 25(1), for present purposes, is that a reference in s 189 of the Young Offenders Act to a conviction of a person for an offence does not include a reference to a conviction that is spent by virtue of a spent conviction order made under s 39 of the Sentencing Act. Section 25(1) has no application in the present case because, as I have mentioned, when the respondent was convicted of the Initial Offence in the Children's Court a spent conviction order under s 39 was not made.

153 By s 189(9), pt 3 of the Spent Convictions Act has effect in relation to a conviction that, under s 189, is not to be regarded as a conviction as if it were a spent conviction under that Act.

154 However, the effect of the phrase '[t]his section does not affect', in s 189(8), is that nothing in s 189(9) has any effect upon, impairs or diminishes any cancellation of a person's driver's licence that occurs by force of s 75 of the Road Traffic Act. See my reasoning at [139] - [140] above.

155 It follows that, in the present case, s 189(9) does not apply to the respondent's conviction for the Initial Offence (and pt 3 of the Spent Convictions Act does not have effect in relation to that conviction) because under s 189 (in particular, by virtue of s 189(8)(d), properly construed), the conviction for the Initial Offence is to be regarded as a conviction for the purposes of the cancellation of the respondent's driver's licence that occurred by force of s 75(2a).

156 The question of law raised by these prosecution appeals should be answered 'yes'.

157 The appeals should be allowed and the orders proposed by Martin CJ should be made.

158 HALL J: I agree with Martin CJ.