Citation : RUSSELL -v- STEPHEN [2013] WASC 21

Criminal law - Appeal against sentence - Driving a motor vehicle on a road while not authorised to do so - Proper construction of Road Traffic Act 1974 (WA), s 49, s 51 - Proper construction of Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 19 - Overlapping legislative scheme

Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 3(1), s 14, s 15, s 17, s 18, s 19, s 20

Road Traffic (Authorisation to Drive) Regulations 2008 (WA)

Road Traffic Act 1974 (WA), s 49, s 51, s 71C

Road Traffic Legislation Amendment (Disqualification by Notice) Act 2010 (WA), s 5

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

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

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

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

Russell v Stephen [2013] WASC 21

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

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

1 MARTIN CJ: This appeal should be dismissed for the reasons given by Buss JA, with which I agree.

2 BUSS JA: On 25 January 2011, the appellant was convicted, on his plea of guilty in the Magistrates Court before Magistrate Boothman, of driving a motor vehicle on a road on 26 August 2010 while not authorised to do so, contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA) (RTA).

3 The magistrate imposed a fine of $400. His Honour also disqualified the appellant, pursuant to the penalty provision in subpar (c)(ii) of s 49(1) of the RTA, from holding or obtaining a driver's licence for a period of 9 months. The magistrate sentenced the appellant pursuant to that provision on the basis that he was an offender to whom s 49(3)(c) applied.

4 The appellant applied for leave to appeal to the Supreme Court against the sentencing decision. He alleged the magistrate was in error in sentencing him pursuant to subpar (c)(ii) of s 49(1) of the RTA. He contended that he should have been sentenced pursuant to the penalty provision in subpar (b) of s 49(1) because he was an offender to whom s 49(3)(d) applied.

5 Where subpar (c)(ii) of s 49(1) applies, the court shall order that the offender be disqualified from holding or obtaining a driver's licence for a period of not less than 9 months and not more than 3 years. Where subpar (b) of s 49(1) applies, the court may order that the offender be disqualified from holding or obtaining a driver's licence for a period of not more than 3 years.

6 McKechnie J dismissed the appellant's appeal. See Russell v Stephen [2013] WASC 21.

7 The appellant appeals to this court against the primary judge's decision.

8 On 7 March 2008, the appellant was granted a provisional licence under the RTA. Any licence the appellant has held at any time under the RTA has been a provisional licence. At all material times, if the appellant has not held a driver's licence, the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (the Regulations) have required that, if a driver's licence were to be granted to the appellant, it be a provisional licence.

9 On 5 July 2010, the appellant was charged with driving a motor vehicle on a road while not authorised to do so, contrary to s 49(1)(a) of the RTA.

10 On 23 July 2010, two separate licence suspension orders in respect of the appellant were made by the Registrar (the Registrar) of the Fines Enforcement Registry (the Registry) under s 19 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (the Fines Act). On 31 August 2010, the licence suspension orders were cancelled.

11 On 10 August 2010, the appellant was convicted in the Magistrates Court of the offence with which he was charged on 5 July 2010. He was fined $100. The magistrate did not disqualify the appellant from holding or obtaining a driver's licence. However, the appellant was automatically disqualified, pursuant to s 51(5a) of the RTA, from holding or obtaining a driver's licence for a period of 3 months.

12 On 26 August 2010, the appellant was charged with the offence in question in this appeal.

13 As I have mentioned, on 25 January 2011 the appellant was convicted of the offence with which he was charged on 26 August 2010, and the penalty in question was imposed.

14 The primary judge stated that the issue in the appeal before him was this:

Is a provisional driver whose licence is suspended under the [Fines Act] a person who does not 'hold' a driver's licence? [2]

15 His Honour noted the appellant's submission, namely that 'driving while under fines suspension is not specified as an offence that invokes cancellation under the [RTA]' [3].

16 The primary judge recounted the relevant facts and circumstances and examined various provisions of the Fines Act and the RTA. He concluded that the appellant's submission was wrong.

So on 10 August 2010 the appellant fulfilled two criteria:

1. he did not hold a driver's licence;
2. he had been convicted of an offence under s 49(1)(a).

His disqualification thereafter relevant to the offence on 26 August 2010 was pursuant to RTA s 51, not [Fines] Act s 19.

If this is not clear enough by a contextual reading, RTA s 51(4A) [sic] puts the matter beyond doubt.

There was no miscarriage of justice when on 25 January 2011 the magistrate correctly sentenced the appellant under RTA s 49(3) [sic] [16] - [19].

18 The primary judge was in error in referring to s 51(4A) of the RTA.

19 By s 5 of the Road Traffic Legislation Amendment (Disqualification by Notice) Act 2010 (WA), s 51(4) of the RTA, as then enacted, was deleted and a new s 51(4A) and s 51(4) were inserted. The relevant amendments did not commence until 1 August 2012. Accordingly, the new s 51(4A) and s 51(4) did not apply in the present case.

20 The error is not, however, material. The effect of the amendments was to extend the provisions of the then existing s 51(4) to the holder of a provisional driver's licence who is disqualified from holding or obtaining a driver's licence by a disqualification notice given under s 71C of the RTA (in addition to the holder of a provisional driver's licence who is disqualified from holding or obtaining a driver's licence by a licence suspension order made under the Fines Act).

21 The Fines Act is an Act to provide for the enforcement of the payment of fines and other penalties and for the enforcement of infringement notices and for related purposes.

22 The relevant provisions of the Fines Act are as follows.

23 By s 3(1), in the Act, the term 'driver's licence' means 'a driver's licence issued under the [RTA] and includes an extraordinary licence issued under that Act'.

24 Part 3 comprises s 11 - s 27D and is headed, 'Infringement notices'.

alleged offence means the offence that an infringement notice alleges has been committed;

alleged offender means the person to whom an infringement notice is issued;

election means an election in writing to have a charge for an alleged offence heard and determined by a court;

enforcement fees means prescribed fees imposed in connection with proceedings under this Part and includes the registration fee referred to in section 16;

infringement notice means a notice issued under a written law, other than this Act, to a person alleging the commission of an offence and offering the person an opportunity, by paying an amount of money prescribed under the written law and specified in the notice, to have the matter dealt with out of court;

modified penalty means the amount of money prescribed in a written law and specified in an infringement notice as the amount that the offender is to pay if he or she wants the matter dealt with out of court;

prescribed enactment means a principal enactment that under section 12(1) is prescribed as an enactment to which this Part applies;

principal enactment, in relation to an infringement notice, means the written law under which an infringement notice is issued;

prosecuting authority, in relation to an infringement notice, means the person who or which, under the principal enactment, administers the issuing of, and any subsequent proceedings in relation to, the notice;

prosecuting officer means a person designated as such in a notice given to the Registrar under section 13(2);

registered means registered with the Registry for enforcement under section 16.

26 Division 2 of pt 3 comprises s 14 - s 20 and is headed, 'Enforcement of infringement notices'.

(b) the infringement notice has not been withdrawn under that enactment;

(c) the modified penalty has not been paid as required by the infringement notice; and

(d) the time for paying the modified penalty has elapsed,

the prosecuting authority may issue a final demand.

28 If the modified penalty, and enforcement fees, specified in the final demand have not been paid within 28 days, and the alleged offender has not made an election to have the charge for the alleged offence heard and determined by a court, the prosecuting authority may register the infringement notice with the Registry pursuant to s 15.

29 If the infringement notice is registered, the Registrar must issue 'an order to pay or elect' to the alleged offender and the order must be served on the alleged offender: s 17(1) and s 17(2).

30 If, within 28 days after the issue of the order to pay or elect, either the modified penalty and enforcement fees (as specified in the order) have not been paid to the Registry or an election to have the matter dealt with by a court has not been made by the alleged offender, the Registrar may, pursuant to s 18, issue a notice of intention to suspend the alleged offender's driver's licence and, if that notice is not complied with, a licence suspension order may be made under s 19.

(a) 28 days have elapsed since the date of issue of a notice of intention to suspend licences;

(b) the modified penalty, and enforcement fees, specified in that notice have not been paid to the Registry; and

(c) the alleged offender has not made an election under section 21,

the Registrar may make a licence suspension order in respect of the alleged offender.

(2) A licence suspension order is an order as to such of the matters in subsections (3) and (4) as the Registrar thinks fit.

(3) If the alleged offender is an individual a licence suspension order may disqualify the alleged offender from one of the following:

(a) from holding or obtaining a driver's licence;

(b) from holding or obtaining a vehicle licence in respect of those vehicles specified in the order; or

(c) from holding or obtaining a vehicle licence in respect of any vehicle.

...

(5) A licence suspension order has effect on the date and at the time specified in the order, but the date and time must not be earlier than the date and time stated in the notice of intention to suspend licences and must not be earlier than when the order is made.

...

(7) A notice confirming licence suspension must be served on the alleged offender.

...

(9) For the purposes of this Act and the Road Traffic Act 1974, a licence suspension order -

(a) takes effect on the date and at the time specified in the order;

(b) is in force from the time it takes effect to the time when it is cancelled; and

(c) is concurrent with any other period for which the alleged offender is disqualified from holding or obtaining a driver's licence.

32 Section 20 makes provision for the cancellation of a licence suspension order. It provides, relevantly:

(1) If after a licence suspension order is made -

(a) the relevant modified penalty and the associated enforcement fees are paid to the Registry; or

(b) the alleged offender makes an election under section 21,

the licence suspension order is to be taken as having been cancelled at the time of the making of the payment or of the election, as the case may be.

(2) Even if neither payment nor an election is made, the Registrar, at any time, may cancel a licence suspension order for good reason.

(3) If a licence suspension order is cancelled under subsection (2), the Registrar must issue a notice of cancellation.

(4) A notice of cancellation must be served on the alleged offender.

...

(6) For the purposes of the Road Traffic Act 1974, the cancellation of a licence suspension order takes effect when the order is cancelled.

33 The relevant provisions of the RTA are as follows.

34 Section 49(1)(a) provides that a person who drives a motor vehicle on a road while not authorised under pt IVA to do so, commits an offence.

35 The penalty for this offence is set out under s 49(1). The penalty provisions read, relevantly:

Penalty:

(a) ...

(b) if subsection (3)(d), but no other paragraph of subsection (3), applies -

(i) a fine of not less than 4 PU or more than 30 PU; and

(ii) imprisonment for not more than 12 months,

and the court may order that the offender be disqualified from holding or obtaining a driver's licence for a period of not more than 3 years;

(i) for a first offence, a fine of not less than 8 PU or more than 40 PU, and imprisonment for not more than 12 months;

(ii) for a subsequent offence, a fine of not less than 20 PU or more than 80 PU, and imprisonment for not more than 18 months,

and the court shall order that the offender be disqualified from holding or obtaining a driver's licence for a period of not less than 9 months and not more than 3 years.

36 Subparagraph (b) of s 49(1) provides for a maximum (but no minimum) period of disqualification whereas subpar (c) of s 49(1) provides for both a maximum and a minimum period of disqualification.

37 Section 49(3)(c) applies to a person 'whose authority to drive, whether under an Australian driver's licence or otherwise, is for the time being suspended other than for the reason described in paragraph (d)'.

38 Section 49(3)(d) applies to a person 'who is no longer authorised to drive because of penalty enforcement laws, as described in subsection (9)'.

39 By s 49(9):

When subsection (3)(d) refers to a person who is no longer authorised to drive because of penalty enforcement laws, it means that the person -

(a) has been disqualified from holding or obtaining a driver's licence under section 19 or 43 of the Fines, Penalties and Infringement Notices Enforcement Act 1994; or

(b) is the subject of any disqualification or suspension under a law of another jurisdiction that is prescribed to be a corresponding law for the purposes of this subsection.

40 Section 51 is concerned with provisional driver's licences. It sets out, amongst other matters, some circumstances in which a provisional driver's licence is automatically cancelled.

41 Section 51(1) provides:

Where the holder of a driver's licence that is a provisional licence -

(a) is convicted of an offence -

(i) mentioned in section 277 of The Criminal Code and the offence arose out of the driving by him of a motor vehicle; or

(ii) under section 378 of The Criminal Code where the property in question was a motor vehicle; or

(iii) under section 53(1), section 54, 55, 56, 59, 59A, 61, 62, 62A, 64AA, 64A, 64AC, 89, 90 or 97; or

(iv) under any regulation that may be prescribed for the purposes of this section;

or

(b) is disqualified by a court pursuant to the provisions of this or any other Act (other than the Fines, Penalties and Infringement Notices Enforcement Act 1994), from holding or obtaining a driver's licence,

then, that licence is, by operation of this subsection, cancelled.

42 At the material time, s 51(4) provided:

Where a person who is the holder of a driver's licence that is a provisional licence is disqualified from holding or obtaining a driver's licence by a licence suspension order made under the Fines, Penalties and Infringement Notices Enforcement Act 1994, then that licence is, by operation of this subsection, suspended so long as the disqualification continues in force and during the period of suspension the licence is of no effect, but the provisions of this subsection do not operate so as to extend the period for which the licence may be valid or effective beyond the time when the licence would be due to expire.

43 Section 51(5) provides that s 51(5a) applies to a person if:

(a) the person does not 'hold a driver's licence'; and

(b) the regulations would require that, if a driver's licence were to be granted to the person, it be a provisional licence.

44 Section 51(5a) provides:

Where a person to whom this subsection applies is -

(a) convicted of an offence such as is mentioned in subsection (1) or an offence against section 49(1)(a); or

(b) disqualified by a court from holding or obtaining a driver's licence,

that person is disqualified from holding or obtaining a licence -

(c) for any period for which he is so disqualified by the court; or

(d) for a period of 3 months from the date of his conviction or, where he is convicted on more than one occasion of an offence referred to in paragraph (a), from the date of his latest conviction,

whichever period terminates later.

45 The sole ground of appeal to this court alleges the primary judge erred in law in concluding the magistrate correctly sentenced the appellant pursuant to subpar (c)(ii) of s 49(1) of the RTA. The appellant maintains he should have been sentenced pursuant to subpar (b) of s 49(1).

46 On 28 April 2013, Mazza JA granted leave to appeal.

The ground of appeal: the appellant's submissions

47 Counsel for the appellant submitted that a person who holds a provisional driver's licence, and whose licence is subject to a licence suspension order under s 19 of the Fines Act, continues to hold a driver's licence and is not a person to whom, by virtue of s 51(5) of the RTA, s 51(5a) of the RTA applies.

48 Counsel argued, in reliance on that proposition, that on 25 January 2011, when the appellant was convicted of the offence of driving a motor vehicle on a road on 26 August 2010 while not authorised to do so, contrary to s 49(1)(a) of the RTA, he was a person to whom s 49(3)(d) applied (and not a person to whom s 49(3)(c) applied), and he should therefore have been sentenced under subpar (b) of s 49(1) (and not under subpar (c)(ii) of s 49(1)).

49 According to counsel, as at 26 August 2010, the appellant did 'hold' a driver's licence, but was not authorised by law 'to use it as authorisation to drive' during the subsistence of the licence suspension orders.

50 Counsel for the appellant referred to s 51(4) of the RTA and submitted that, during the subsistence of the licence suspension orders, the appellant's licence was 'of no effect'. Counsel argued it is 'only' in that sense that a person whose provisional licence is subject to a licence suspension order does not 'hold' and cannot 'obtain' a licence.

The ground of appeal: the proper approach to construction of the relevant statutory provisions

51 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).

52 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).

53 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).

54 When the Registrar makes a licence suspension order under s 19(1) of the Fines Act in respect of a person who holds a provisional driver's licence, relevant provisions of the Fines Act and the RTA operate as an overlapping legislative scheme governing the legal effect of the order for the person concerned and on the person's driver's licence.

55 By s 19(1) of the Fines Act, a licence suspension order is made 'in respect of' the person concerned.

56 By s 19(3)(a) of the Fines Act, if the person is an individual, a licence suspension order may 'disqualify' him or her 'from holding or obtaining a driver's licence'.

57 The licence suspension orders made by the Registrar in respect of the appellant 'disqualified' him, relevantly, 'from holding or obtaining a driver's licence' for a period of 3 months.

58 By s 19(5) of the Fines Act, the licence suspension orders made in respect of the appellant took effect on 10 August 2010 at 13.24.57 hours, being the date and time specified in the orders.

59 By s 19(9) of the Fines Act, for the purposes of the Fines Act and the RTA, the licence suspension orders made in respect of the appellant took effect on 10 August 2010 at 13.24.57 hours and were in force from the time they took effect to the time when they were cancelled.

60 The licence suspension orders made in respect of the appellant were cancelled on 31 August 2010. For the purposes of this appeal, they were at all material times in effect.

61 Section 19(3)(a) is, for present purposes, the critical provision of the Fines Act. By that provision, read with the Registrar's orders, while the licence suspension orders were in effect the appellant was 'disqualified' from:

62 Neither the words 'disqualify', 'holding' and 'obtaining' nor any cognate forms of those words are defined in the Fines Act.

63 The natural and ordinary meaning of 'disqualify', in the sense of 'disqualifying' a person from 'holding' or 'obtaining' a driver's licence within s 19(3) of the Fines Act, is to deprive the person of the legal capacity, power or right to hold or obtain a driver's licence. The word 'disqualify', in this context, is synonymous with 'ineligible'.

64 The natural and ordinary meaning of 'holding', in the sense of 'disqualifying' a person from 'holding' a driver's licence within s 19(3) of the Fines Act, is to possess, have or retain, by lawful entitlement, a driver's licence.

65 The natural and ordinary meaning of 'obtaining', in the sense of 'disqualifying' a person from 'obtaining' a driver's licence within s 19(3) of the Fines Act, is to acquire or procure, by lawful entitlement, a driver's licence.

66 So, by s 19(3)(a) of the Fines Act, read with the Registrar's orders, while the licence suspension orders were in effect the appellant was deprived of:

(a) the legal right to possess, have or retain the provisional driver's licence granted to him on 7 March 2008 under the RTA; and

(b) the legal capacity to acquire or procure a driver's licence under the RTA.

67 The focus of s 19(3) of the Fines Act is on the legal incapacity or disentitlement of the alleged offender in relation to a driver's licence (whether existing or potential), and the period of that incapacity or disentitlement.

68 By contrast, s 51(4) of the RTA, as enacted at the material time, was concerned with the legal status of an existing provisional driver's licence previously granted to a person who was disqualified from holding or obtaining a driver's licence by a licence suspension order made under the Fines Act.

69 Section 51(4) of the RTA provided, relevantly, that where a person who was the holder of a provisional driver's licence was disqualified from holding or obtaining a driver's licence by a licence suspension order made under the Fines Act, 'then that licence is, by operation of this subsection, suspended so long as the disqualification continues in force and during the period of suspension the licence is of no effect'.

70 Neither the terms 'suspended' and 'of no effect' nor any cognate forms of those terms are defined in the RTA.

71 However, the natural and ordinary meaning conveyed by those terms, in the context of s 51(4) of the RTA as a whole, is plain. If the holder of a provisional driver's licence was disqualified under the Fines Act from holding or obtaining a driver's licence then, by operation of s 51(4), the provisional licence was invalid and ineffective at law during the period of the person's disqualification.

72 So, by s 51(4) of the RTA, as enacted at the material time, while the licence suspension orders were in effect the provisional driver's licence granted to the appellant on 7 March 2008 under the RTA was invalid and ineffective at law.

73 The cumulative effect of s 19(3)(a) of the Fines Act, read with the Registrar's orders, and s 51(4) of the RTA, as enacted at the material time, was that, while the licence suspension orders were in effect:

(a) the appellant was deprived of the legal right to possess, have or retain the provisional driver's licence granted to him on 7 March 2008 under the RTA;

(b) the appellant was deprived of the legal capacity to acquire or procure a driver's licence under the RTA; and

(c) the provisional driver's licence granted to the appellant on 7 March 2008 under the RTA was invalid and ineffective at law.

74 By s 51(5a) of the RTA, where a person, to whom s 51(5a) applies, is convicted of an offence such as is mentioned in s 51(1) or an offence against s 49(1)(a) (par (a)) or is disqualified by a court from holding or obtaining a driver's licence (par (b)), that person is 'disqualified from holding or obtaining a licence' for any period for which he is so disqualified by the court (par (c)) or for a period of 3 months from the date of his conviction or, where he is convicted on more than one occasion of an offence such as is mentioned in s 51(1) or an offence against s 49(1)(a), from the date of his latest conviction (par (d)), whichever period terminates later.

75 The offences mentioned in s 51(1) of the RTA include, amongst others, numerous offences (apart from the offence against s 49(1)(a)) under the RTA.

76 Neither the words 'disqualify', 'holding' and 'obtaining' nor any cognate forms of those words are defined in the RTA. On its proper construction, the composite expression 'disqualified from holding or obtaining a licence' in s 51(5a) of the RTA bears the same meaning as in s 19(3) of the Fines Act.

77 By s 51(5) of the RTA, s 51(5a) applies to a person if:

(a) the person 'does not hold' a driver's licence; and

(b) the regulations would require that, if a driver's licence were to be granted to the person, it be a provisional licence.

78 Neither the word 'hold' nor any cognate form of that word is defined in the RTA.

79 The natural and ordinary meaning of 'hold', in the sense of a person not 'holding' a driver's licence within s 51(5) of the RTA, is to possess, have or retain, by lawful entitlement, a driver's licence.

80 So, a person 'does not hold' a driver's licence, within s 51(5) of the RTA, if the person does not lawfully possess, have or retain a driver's licence. Section 51(5) extends to a person who, by virtue of a licence disqualification order made under s 19(3) of the Fines Act, has been deprived of the legal right to possess, have or retain a driver's licence previously granted to him or her. Such a person 'does not hold' a driver's licence within s 51(5).

81 At the material time (namely, 26 August 2010), the appellant was a person to whom s 51(5a) of the RTA applied in that:

(a) he 'did not hold' a driver's licence (s 51(5)(a)); and

(b) as I have mentioned, the Regulations would require that, if a driver's licence were to be granted to him, it be a provisional licence (s 51(5)(b)).

82 As at 26 August 2010, the appellant 'did not hold' a driver's licence, within s 51(5)(a), in that on 23 July 2010 the Registrar made the licence suspension orders (with the consequences referred to in the orders read with s 19(3)(a) of the Fines Act and with the consequences set out in s 51(4) of the RTA, as then enacted) and, further, as I have mentioned, on 10 August 2010 the appellant was automatically disqualified, pursuant to s 51(5a) of the RTA, from holding or obtaining a driver's licence for a period of 3 months.

83 In my opinion, on 25 January 2011, when the appellant was convicted of driving a motor vehicle on a road on 26 August 2010, while not authorised to do so, contrary to s 49(1)(a) of the RTA, the penalty provision in subpar (c)(ii) of s 49(1), and not the penalty provision in subpar (b) of s 49(1), applied. My reasons for that opinion are as follows.

84 The penalty provision in subpar (c)(ii) of s 49(1) applied to the appellant if, relevantly, s 49(3)(c) applied.

85 Section 49(3)(c) refers to an offence under s 49(1)(a) that is committed by a person 'whose authority to drive ... is for the time being suspended other than for the reason described in paragraph (d)'.

86 The reason described in s 49(3)(d) is a person 'who is no longer authorised to drive because of penalty enforcement laws, as described in subsection (9)'.

87 By s 49(9), when s 49(3)(d) refers to a person who is no longer authorised to drive because of penalty enforcement laws, it means, relevantly, that the person has been disqualified from holding or obtaining a driver's licence under s 19 of the Fines Act.

88 Neither the terms 'authority to drive' and 'suspended' nor any cognate forms of those terms are defined in the RTA.

89 However, it is readily apparent from the text of s 49(3)(c), in the context of s 49 and s 51 as a whole, that:

(a) an 'authority to drive' includes a driver's licence granted under the RTA; and

(b) a driver's licence granted under the RTA will be 'suspended' if it is invalid or ineffective at law.

90 On 26 August 2010, when the appellant committed the offence in question against s 49(1)(a), his 'authority to drive' (being his provisional driver's licence) was 'suspended' (that is, invalid or ineffective at law), within s 49(3)(c), for two reasons.

91 First, the licence had been suspended on 23 July 2010 because of the penalty enforcement laws referred to in s 49(3)(d) and described in s 49(9).

92 Secondly, the licence had also been suspended because, by virtue of s 51(5a) and his conviction on 10 August 2010, the appellant had been deprived of the legal right to possess, have or retain it. A consequence of the appellant having been disqualified under s 51(5a), as a result of his conviction on 10 August 2010, from holding or obtaining a licence was that his provisional driver's licence was invalid and ineffective at law during the period of his disqualification.

93 In my opinion, s 49(3)(d) only applies where the reason described in s 49(3)(d) is the sole reason why the person's authority to drive is for the time being suspended. This is the ordinary meaning conveyed by the text of s 49(3)(c) read with s 49(3)(d). In particular, s 49(3)(c) applies where the person's authority to drive is for the time being suspended 'other than for the reason described in paragraph (d)' (emphasis added). My construction of these provisions also accords with the evident object or purpose of the penalty provision in subpar (b) of s 49(1) read with s 49(3)(d), namely, that a lower penalty should apply for a contravention of s 49(1)(a) where the absence of an authority to drive is attributable to the penalty enforcement laws, those laws being, relevantly, for the administrative (that is, non-judicial) enforcement of the payment of fines, other penalties and infringement notices which may be unrelated to any breach of the RTA or the Road Traffic Code 2000 (WA).

94 It follows that the magistrate was correct in sentencing the appellant under the penalty provision in subpar (c)(ii) of s 49(1) of the RTA on the basis that he was an offender to whom s 49(3)(c) applied.