WorkCover Authority of NSW v Denson and others

CATCHWORDS: Occupational Health and Safety - Reference to Full Bench of the Court - statutory interpretation - whether each defendant is subject to increased penalty as a "previous offender" pursuant to OHS Act 2000 - proper interpretation of definition of "previous offender" in s 4 - when expression used in s 12 - Morrison v Powercoal considered analogous provision under 1983 Act - approach correct - view ss 4 and 12 in context - definition of previous offender refers to conviction for previous offence - consistent with purpose - McHugh JA approach in Bermingham considered - approach of Spigelman CJ in R v Young preferred - second question whether person subject of order under s 10 Crimes (Sentencing Procedure) Act 1999 a "previous offender" - no conviction recorded if s 10 order made - therefore not a previous offender - R v Price applied.

Crimes (Sentencing Procedure) Act 1999 s 10 Criminal Appeal Act 1912 s 5AE LEGISLATION CITED: Industrial Relations Act 1996 s 196 Occupational Health and Safety Act 1983 s 51A Occupational Health and Safety Act 2000 ss 4, 8 and 12

Bermingham v Corrective Services Comm NSW (1988) 15 NSWLR 292 Carter v Denham [1984] WAR 123 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Coco v R (1994) 179 CLR 427 Farrington v Thomson and Anor [1959] VR 286 FCT v Smorgon (1977) 16 ALR 721 Inspector Lewis v North Sydney and Central Coast Area Health Service [2006] NSWIRComm 61 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 CASES CITED: Morrison v Powercoal (No 3) (2005) 147 IR 117 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 O'Connor v Bini [1908] VLR 567 O'Hara v Harrington [1962] Tas. S. R. 165 Public Transport Commission of NSW v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 R v Price [2005] NSWCCA 285 R v Young (1999) 46 NSWLR 681 Rivera v Maher (1992) 1 Tas. R 228 Wentworth Securities v Jones [1980] AC 74 Workcover Authority of NSW (Inspector Jones) v James Denson and Anor [2006] NSWIRComm 234

PROSECUTOR: Mr J Agius SC and Mr P Skinner of counsel SOLICITORS: Ms B Benson WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANTS Mr S Austin of counsel SOLICITORS: Mr M Ball Harris Wheeler

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J

WorkCover Authority of New South Wales (Inspector Rodney Dubois) v James Nicholas Denson and others

Reference pursuant to section 5AE of the Criminal Appeal Act 1912 and section 196 of the Industrial Relations Act 1996

1 This matter comes before the Full Bench by way of reference from Staunton J pursuant to s5AE of the Criminal Appeal Act 1912 as applied by s196 of the Industrial Relations Act 1996. The initial proceedings involved convictions under the Occupational Health & Safety Act 2000 ("the Act"). 2 The questions referred to the Full Bench are confined to a legal issue as to the proper interpretation of the definition of "previous offender" in s4 of the Act in the context of s12 thereof. Before turning to consider the facts which have given rise to this reference, we set out the questions formulated by her Honour for determination by the Full Bench: 1. As a matter of law and having regard to the relevant background, whether James Denson and JBMR [JB Metal Roofing Pty Limited] are previous offenders for the purposes of s12 of the Occupational Health and Safety Act 1983 (sic) when taken together with the definition of 'previous offender' in s4 of the Occupational Health and Safety Act 2000 .

2. As a matter of law and having regard to the relevant background, whether Garry Denson is a previous offender for the purposes of s12 of the Occupational Health and Safety Act 1983 (sic) when taken together with the definition of 'previous offender' in s4 of the Occupational Health and Safety Act 2000 .

The references in these questions to the 1983 Act were plainly intended to be references to the 2000 Act and we will deal with the questions accordingly. 3 While both questions relate to the interpretation of the expression "previous offender", the questions arise from quite distinct factual circumstances, involve different defendants and raise very different issues. Question 1 relates to the position of Mr James Denson and JB Metal Roofing Pty Limited ("JBMR") and squarely raises the issue previously dealt with by this Court in Morrison v Powercoal (No 3) (2005) 147 IR 117, albeit in respect of the analogous provisions in the Occupational Health and Safety Act 1983 (the 1983 Act). Question 2, on the other hand, relates to the position of Mr Garry Denson and is confined to a narrow question as to the relevance of an order under s10 of the Crimes (Sentencing Procedure) Act 1999 (Sentencing Procedure Act) to the definition of "previous offender".

4 Given the narrow scope of the questions referred to us, it is unnecessary to set out the full factual background to these proceedings. Nevertheless, the following facts are relevant:

(a) Mr James Denson and JBMR were convicted of an offence on 18 July 2006 under s8(1) of the Act by Boland J in Workcover Authority of NSW (Inspector Jones) v James Denson and Anor [2006] NSWIRComm 234 arising from events which occurred on 4 November 2003 involving the failure of JBMR to ensure its employees were attached by their safety harnesses to requisite anchorage points on the roof while working at heights on a site at Erskine Park.

(b) In those proceedings, Boland J considered the defendants as persons with no previous convictions, noting: The defendants are entitled to have taken into account as mitigating factors that they have no previous convictions and that steps were taken to avoid a re-occurrence of the offences.

(c) Mr James Denson and JBMR face charges under s8(1) of the Act before Staunton J, to which they have pleaded guilty, arising from events which occurred on 15 October 2003, that is, shortly prior to the date on which the offence for which they had been convicted before Boland J occurred;

(d) on 17 October 2006, Staunton J directed a memorandum to the parties outlining her preliminary view that, for the purposes of sentencing, Mr James Denson and JBMR were "previous offenders" as referred to in s12 of the Act and as defined in s4 of the Act and invited further written submissions from the parties. Staunton J did not deal with Mr Garry Denson in this memorandum;

(e) following these submissions being filed, Staunton J formed the view that the submissions failed to properly address the statutory construction point that s12 and s4 of the Act, when taken together, establish in relation to "previous offender" and, accordingly, published a preliminary judgment on 3 November 2006 in which her Honour made the following observations after summarising the parties' submissions: For my part, I have some difficulty with that approach when one considers the definition of "previous offender" in s4 of the Act. I perceive no ambiguity in the clear and ordinary meaning of the phrase 'at any time' in relation to the recording of a conviction under the 2000 or 1983 Occupational Health and Safety Act. Further, I am not persuaded that the absence of any reference in the Second Reading speech to the 2000 Act of the changes made by s12 and s4 of the 2000 Act to the provisions of s51A of the 1983 Act in relation to 'previous offender' necessarily means the principle enunciated in Powercoal (No 3) on this point continues to apply. On any view, James Denson and JBMR are persons who have 'at any time … been convicted on any other offence' against the Occupational Health and Safety Act 2000. In my view, the provisions of s12 of the Occupational Health and Safety Act 2000, when taken together with the definition of previous offender in s 4 of the 2000 Act, removes the ambiguity that arose in relation to s 51A of the 1983 Act when determining a 'previous conviction' as distinct from a 'previous offence' in s 51A(3) of the 1983 Act. It is clear to me, at the very least, on a consideration of the submissions received, together with the principle enunciated in Powercoal (No 3) on this point, that the new provisions in s 12 together with the definition of 'previous offfender' in s 4 of the Act, has raised an important point of law and statutory construction. For my part, I am not sufficiently persuaded that the principle enunciated in Powercoal (No 3) on this issue still applies and binds me given the changes in the relevant legislative provisions. If anything, the decision of Backman J in Inspector Lewis v Northern Sydney and Central Coast Area Health Service only confirms, in my view, the differing views that may emerge at first instance if this point of law is not resolved. Further, the need for such clarification is strengthened, in my view, by the submission received from counsel for the prosecutor where he submitted, in relation to s 12, that the section could only be interpreted as referring to the status of the offender as at the time of contravention. In relation to Mr Garry Denson, he was, at the time of the contravention with which I am concerned, a previous offender as distinct from having a previous conviction - and yet, on one view, he is not a 'previous offender' as provided by s 12 of the Act when taken together with the relevant definition in s 4. This is so despite the fact that Garry Denson has been dealt with on a prior occasion for an offence arising pursuant to s 50(1) of the Occupational Health and Safety Act 1983. The offence occurred in 1999 and was dealt with by the Chief Industrial Magistrate on 18 August 2004. However, while finding the offence proved, the Chief Industrial Magistrate discharged Garry Denson without conviction and penalty pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. As well, there is an arguable point that Garry Denson is a previous offender if the principle in Powercoal (No 3) is to apply to him when regard is had to the view expressed by the Full Bench in Powercoal (No 3) at [55] where the Court said: [55] … In our view, the section is not enlivened in respect of a first offence which, due to delays in the disposal of the offence, becomes the second offence at the time when the Court considers sentencing. … we consider that the better view is that the approach we have preferred reflects the intention of the legislature to provide a higher maximum penalty where the offender has in a genuine sense offended on a subsequent occasion. (emphasis added) Given the earlier offence relating to Garry Denson, he is now an offender who 'has in a genuine sense offended on a subsequent occasion'. In short, on further consideration and in light of the submissions received at this point in the proceedings and before proceeding to judgment, it is my view that this issue raises questions of law relevant to all three defendants that should be submitted to the Full Bench of the Court pursuant to s 5AE of the Criminal Appeal Act as applied by s 196 of the Industrial Relations Act 1996. 5 The questions referred to the Full Bench have been set out earlier in this judgment. Relevant Statutory Provisions

6 Before turning to the submissions of the parties before this Court, we set out the relevant statutory provisions of both the Act and 1983 Act. Occupational Health and Safety Act 2000 12 Penalty for offence against this Divisio n A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision and is liable to the following maximum penalty: (a) in the case of a corporation (being a previous offender) - 7,500 penalty units, or (b) in the case of a corporation (not being a previous offender) - 5,000 penalty units, or (c) in the case of an individual (being a previous offender) - 750 penalty units or imprisonment for 2 years, or both, or (d) in the case of an individual (not being a previous offender) - 500 penalty units. Note. Section 17 of the Crimes (Sentencing Procedure) Act 1999 provides, at the enactment of this Act, that the value of a penalty unit is $110. Accordingly, the above maximum penalties are as follows: (a) in the case of a corporation (being a previous offender) - $825,000, or (b) in the case of a corporation (not being a previous offender) - $550,000, or (c) in the case of an individual (being a previous offender) - $82,500 or imprisonment for 2 years, or both, or (d) in the case of an individual (not being a previous offender) - $55,000.

previous offender , in relation to the maximum penalty for an offence, means a person who has, at any time before being sentenced for that offence, been convicted of any other offence of any kind against this Act or the Occupational Health and Safety Act 1983. Occupational Health and Safety Act 1983 51A Additional penalty for further offence against the Act

(1) A Court that convicts a person of an offence (the current offence ) against this Act may, if the person has previously been convicted of an offence against this Act (whether the same offence or another), impose as additional penalty in respect of the current offence not exceeding the following penalties: (a) if the current offence is an offence against section 15, 16, 17 or 18 of this Act - 2,500 penalty units in the case of a corporation or 250 penalty units or 2 years imprisonment, or both, in any other case, or (b) if the current offence is any other offence against this Act - 50% of the maximum penalty for the offence (that is, 50% of the maximum penalty that would apply but for this section). (2) For the purposes of section 47 (Summary procedure for offences), the maximum penalty provided in respect of an offence is, in the case of an offence to which this section applies, taken to include any additional penalty that may be imposed under this section. (3) This section applies even if the previous offence concerned was committed before the commencement of this section.

7 In written submissions before the Full Bench, counsel for the prosecutor effectively made two sets of submissions:

(a) submissions as contradictor on the basis that absent those submissions there would be no submissions in support of the view expressed by Staunton J; and

(b) additional submissions in favour of the position put to Staunton J by both the prosecutor and the defendant. 8 In making the alternate submissions, counsel for the prosecutor stated that the prosecutor did not resile from the position taken before her Honour, namely to oppose a finding that the defendants were previous offenders for the purposes of s12 of the Act. 9 Counsel for the prosecutor did not make any written submissions specifically regarding question 2 although made some short oral submissions in favour of a negative answer. The Court is indebted to counsel for the prosecutor for the helpful approach taken by them to assist the Court.

10 In summary, senior counsel for the prosecutor submitted (as contradictor):

(a) the plain ordinary meaning of the definition of the words "previous offender" in s4 (and therefore in s12) leads to a conclusion that Mr James Denson and JBMR are previous offenders as the definition speaks of "at any time before" and "been convicted". The prior occurrence is defined as a "conviction" not simply as a prior offence;

(b) the use of the words "at any time" in the definition highlights the fact that the legislature is drawing attention to a "conviction" at any time before the offender comes to be sentenced. Importantly, the definition does not refer to a conviction for "any other prior offence" or "any prior offence";

(c) Parliament could have chosen terminology such as "second" or "subsequent" offence when considering the imposition of increased penalties for additional offences, however, those words are missing from the definition. There has long been an accepted practice at common law that where the legislature imposes an increased penalty for a "second offence" that expression bears the technical meaning of "an offence committed after conviction of a first offence": see O'Hara v Harrington [1962] Tas. S. R. 165; Rivera v Maher (1992) 1 Tas. R 228; Carter v Denham [1984] WAR 123 and the cases referred to therein . It is significant that the legislature did not use this terminology in s 12;

(d) there is no ambiguity about the definition. The interpretation referred to above is a strict interpretation. A strict interpretation is not one that necessarily favours a defendant in the absence of ambiguity. The absence of any alternative construction of the plain words of s4 and s12 of the Act is significant. While Gibbs J said in Public Transport Commission of NSW v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350: "where two meanings are open … it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust" (to similar effect see Stephen J in FCT v Smorgon (1977) 16 ALR 721 at 729), these observations are predicated upon there being two meanings or constructions open. Here there is only one open and that is one that relates to the existence of a prior conviction at any time before sentence, not an earlier offence.

(e) whilst it may be anomalous that an offender is liable to an increased penalty for what is in effect an offence that occurs first in time this arises not perforce of the legislation, but because of the order in which the matters were dealt. This is not to say that there is any ambiguity in the definition or the penalty section. If there is an anomaly then the solution is a matter for Parliament;

(f) the decision in Morrison v Powercoal (No 3) , which related to s51A of the 1983 Act, can be distinguished. This section was in a different form to s12 of the Act. The differences are significant. Section 51A had a heading that read "Additional penalty for further offence against the Act". There is an implication by the use of the word "further" of a later offence. That heading does not appear in relation to s12.

(g) the terminology of s51A is different to s12. Section 51A includes in sub section 3 a reference to "the previous offence" (emphasis added). There is no such reference in s 12. There is a reference to previous offender in s 12, however, as has been indicated this phrase is tightly and unambiguously defined in terms of a "conviction" at "any time before". (h) the decision in Morrison v Powercoal (No 3) and the decision of Backman J in Inspector Lewis v North Sydney and Central Coast Area Health Service [2006] NSWIRComm 61, which was based upon it, can therefore be distinguished.

11 In summary, senior counsel for the prosecutor submitted (in his alternative submissions):

(a) the common law has long recognised that a court may "read words into a legislative provision" or imply words in a provision in order to avoid manifest injustice: see McHugh JA in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 referring to the speech of Lord Diplock in Wentworth Securities v Jones [1980] AC 74 at 105-06 and Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292. There are three requirements: (i) the court must know the mischief with which the Act was dealing;

(ii) the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved; and

(iii) the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect;

(b) there is room for the argument that these conditions are satisfied: (i) the mischief was to make available increased penalties for defendants who continue to breach provisions of the Act, that is, defendants whose antecedents demonstrate a failure to rehabilitate and who continue to offend; (ii) it is a long-standing principle that defendants who stand to be punished are dealt with against the background of their criminal antecedents at the time they committed the offence for which they are dealt with. The common law also recognises that in some circumstances this means that a defendant may be dealt with as a first offender on two occasions in respect of two offences: see O'Connor v Bini [1908] VLR 567 at 571-2; Farrington v Thomson and Anor [1959] VR 286; Carter v Denham [1984] WAR 123; Rivera v Maher (1992) 1 Tas. R 228; (iii) the suggested word to be implied is clear: add the word "previous" before the words "offence of any kind" in section 4 of the 2000 Act so that the definition reads: "previous offender", in relation to the maximum penalty for an offence, means a person who has, at any time before being sentenced for that offence, been convicted of any other previous offence of any kind against this Act or the Occupational Health and Safety Act 1983 . (c) this approach is in conformity with the decision in Morrison v Powercoal (No 3) and leads to a conclusion in conformity with the prosecutor's position before her Honour.

12 In summary, counsel for the defendants submitted:

(a) if the definition of "previous offender" in s4 of the Act is read literally then the offenders are indeed caught by the definition. The real question is whether the definition should be read so literally, or rather in conformity with earlier authority construing similar (albeit not identical) provisions in the 1983 Act in a quite different way: see Morrison v Powercoal (No.3) .

(b) an offender's good prior character and record of earlier offences are important aspects of the sentencing process. That is a long-standing common law principle ( Veen v The Queen [No.2] (1988) 164 CLR 465), effectively codified by statute (s21A Sentencing Procedure Act);

(c) the facts of this case necessarily mean that if s4 of the Act is construed in the manner tentatively propounded by Staunton J then these offenders will be sentenced for their first ever offences as if they were recidivists. Such a construction of the legislation would represent a grave incursion on long-standing sentencing principles;

(d) the provisions of s4 are expressed succinctly, but nevertheless quite generally; (e) general words in a statute are insufficient to authorise interference with basic immunities. Courts must insist on express authorisation within a statute if a fundamental right, freedom or immunity is to be abrogated or curtailed. It must be apparent that the legislature has not only directed its attention to the question of the abrogation or curtailment, but has also determined to impose the abrogation or curtailment. No such intention should be imputed. The intention must be clearly manifested by unmistakable and unambiguous language in the legislation (see Coco v R (1994) 120 ALR 415 at 418-419). (f) there is no express indication, either in the language of the Act or the second reading speech before parliament, that the legislature either: (i) directed its mind to the question of whether the Act would catch a greater number, or alternatively a different group, of offenders as "previous offenders" from the 1983 Act, or (ii) positively determined to so provide for such an outcome. (g) in the circumstances, the Act should be construed so as to mean that a "previous offender" is: … a person who has, at any time before being sentenced for that offence, committed any other offence of any kind against this Act or the OH&SA 1983. (h) such an outcome would be consistent with the manner in which the legislation has been construed in at least one other authority (see Inspector Wolf v Port Kembla Copper Pty Ltd [2006] NSWIRComm 341 at [29-31]).

13 As to question 2, the defendants made the following submissions:

(a) Garry Denson has a single entry on his criminal history, recording an offence under s50(1) of the 1983 Act, committed on 9 June 1999 and concluded before the Chief Industrial Magistrate on 18 August 2004; (b) the prior offence was the subject of an order for dismissal pursuant to s10 of the Sentencing Procedure Act. The effect of that order was to expunge the offence, and any adverse record of it, from the criminal record of Garry Denson, thereby entitling him to retain the benefit of good character (see R v Price [2005] NSWCCA 285 at [35]-[36]). For present sentencing purposes, he has not committed any prior offence, nor does he have a prior conviction; and

(c) regardless of the construction of ss 4 and 12 of the Act, Garry Denson cannot under any circumstances be treated as a prior offender so as to be subject to the higher scale of penalties in respect of the present offence.

14 This reference comes before the Full Bench in somewhat unusual circumstances as both the prosecutor and defendant made submissions before her Honour opposing her Honour's preliminary view as to the interpretation of the definition of "previous offender" underlying the reference. Nevertheless, Staunton J referred the two questions to the Full Bench. The defendants opposed the reference while the prosecutor had no objection to the questions being referred to the Full Bench for determination. The questions raise a serious issue given that a finding that the defendants are previous offenders paves the way for the possibility of a custodial sentence being ordered on conviction of a defendant who is a natural person. We shall consider each question in turn as they raise quite distinct issues, albeit that they both concern the definition of "previous offender". Question 1 15 At the outset, we observe that the issue giving rise to this question is identical to the issue authoritatively determined by the Full Bench in Morrison v Powercoal (No 3), save only that in the present context we are concerned with the 2000 Act whereas in Morrison v Powercoal (No 3) the Full Bench was concerned with the analogous provision in the 1983 Act. 16 Just as is the position here, the issue in Morrison was whether s51A (the analogous provision in the 1983 Act) applied where:

(a) the present offences before the Court were committed before a later offence was committed;

(b) the later offence in time was the subject of a conviction; and

(c) the conviction in the later offence was imposed before sentencing in the present matter. 17 In Morrison v Powercoal (No 3), the Full Bench after reviewing some earlier first instance decisions on the interpretation of s51A of the 1983 Act undertook the following analysis: [35] In moving the WorkCover Legislation Amendment Bill, which introduced s 51A, be read a second time, Attorney-General and Minister for Industrial Relations, the Honourable JW Shaw QC commented (Hansard, Legislative Council, 13 December 1995) at page 4778: In the case of second or further offences, the amendments will provide that the maximum penalty increases by half as much again -- bringing the possible maximum fine for a corporation in serious cases to $750,000. This does not mean that courts should simply increase the amount of the employer's previous fine by half. Rather, the court should -- whether dealing with a first or repeat offence -- give due regard to the maximum penalty.

[36] It is not necessary in these proceedings to refer in detail to the relevant approaches to issues of statutory construction. For present purposes, the principles are well settled and may be expressed as follows.

[37] First, to paraphrase what was said in the recent Full Bench judgment of this Court in Crowe v UCS Developments Pty Ltd (2003) 130 IR 266, albeit in respect of another statute, the operation of the relevant provision is a question which, as any issue of construction, "may often be resolved by ascertaining the intention of the legislature from the express words of the instrument viewed in their context". [38] Second, the statutory provision must not be construed in isolation but in the context in which it appears as part of the whole instrument.

[39] Third, courts are obliged by statutory injunction to prefer a construction which would promote the purpose of a statute to one which would not.

[40] Fourth, the requirement to look to the purpose or object of the statute transcends the former obligation to adopt the traditional mischievous purpose rule in preference to the literal rule of construction because the earlier rule required the identification of an ambiguity or inconsistency before the Court could have regard to the purpose. Further, if the language of the statute or statutory provision is not ambiguous or uncertain, the Court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation that was obviously not intended: Mills v Meeking (1990) 169 CLR 214 at 223.

[41] The context in which the relevant provision must be considered is as part of the process of interpretation itself, and not merely at some later stage when ambiguity might be thought to arise. Finally, the reference to context is to be taken in its wider sense to include such matters as the existing state of the law and the mischief, which, by reference to permissible extrinsic material, such as explanatory memoranda and Law Reform Reports, it might be discerned that the statute was intended to remedy. [42] In Fox v GIO Australia Ltd (2002) 56 NSWLR 512, 120 IR 401 Walton J, Vice-President reviewed the principles of statutory interpretation. His Honour observed at [45]-[47]: The interpretation of the Victorian equivalent of s 15AA of the Acts Interpretation Act 1901 Cth, s 35(a) of the Interpretation of Legislation Act 1984 Vic, was discussed by Dawson J in Mills v Meeking: [T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v The Commonwealth (1904) 1 CLR 668 at 674; Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 at 513. The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes. The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by reference to legitimate extrinsic material such as explanatory memoranda and law reform reports, one may discern the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.

In Langan v Ceramiclab Pty Ltd (2000) 97 IR 80 the Full Bench of this Court referred to the need to interpret provisions in context at 84-85 [13]: However, the submissions of the applicant earlier referred to are subject to another important consideration arising from the need to interpret the subject provisions in context. That is, the need, in appropriate cases, to interpret a word or phrase on the basis that its meaning is to be defined from its context. See, for example, Pearce and Geddes, Statutory Interpretation in Australia, (4th edition, 1996) at 99: [4.14] Although usually stated separately, the noscitur a sociis rule reflects the same philosophy as the general approach of reading an Act as a whole. When writing, a person assumes that a reader will not read the document word by word but will look at whole phrases or sections. Stamp J in Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696 [[1967] 2 All ER 576 at 578-579] put it thus: Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language. See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Toohey and Gaudron JJ. [43] Further examples of courts' consideration of the approach to statutory construction are: CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408 ; Mills v Meeking at 223 ; Police Assn (NSW) v Commissioner of Police (2002) 123 IR 301 at 312-317; Re Club Employees (State) Award (2002) 122 IR 272; Mitchforce Pty Ltd v Starkey (No 2) (2003) 130 IR 378; Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; Re Crown Employees (NSW Fisheries, Salaries and Conditions of Employment) Award (2003) 129 IR 369. [44] We firstly turn to consider the construction of s 51A.

[45] Section 51A(1) directs the attention of the court to whether "the person has previously been convicted of an offence against this Act". It is the prior conviction, rather than the prior occurrence of the offence that is referred to which activates s 51A(1). In that respect, the respondent's contentions are plainly correct. However, s 51A(3) refers to "the previous offence" and as to when that was committed, by reference to the commencement of the operation of the section. [46] We do not consider, however, that when viewed in terms of the context of the whole of the section that s 51A (3) should be construed as supporting the contentions of the appellant in this respect. If s 51A(3) is to be read as applying to a previous conviction with respect to a previous offence committed before the commencement of the section, it strains the language used in s 51A(3). If the legislature had intended such an approach to construction, it would have used language appropriate to such a meaning. It seems to us that s 51A(3) is intended to reflect a general approach that the section was intended to apply to previous offences, rather than to previous convictions. [47] Furthermore, it is important, in our view, that s 51A should be construed strictly, particularly as the section, as was observed by Marks J, is contained within legislation that creates penalties which include imprisonment. [48] Broadly speaking we prefer, therefore, the approach of Marks J, to the construction of the section. That approach is confirmed by a consideration of the proper approach to the "second offences" when considered in other contexts in the general law.

[49] A discussion of the principles in respect of second offences is to be found in The Laws of Australia, Title 12 Criminal Sentencing, Subtitle 3 Interpretation of Penalty Provisions, Chapter Four, Second Offences or Convictions (Law Book Company, 1993). The learned authors authoritatively state: Where a penalty provision has an increased penalty for a second or subsequent offence, it only applies if there has been a conviction for the first offence before commission of the subsequent offence. [50] The rule thus stated is, therefore, that where an offender is convicted of more than one charge on the same day, a court has no power to impose a sentence for a "second or subsequent offence" in respect of the second conviction. The same rule applies when the offender has on a previous occasion been convicted of a first offence after the commission of a second offence.

[51] This interpretation has been adopted notwithstanding the use of different language in the penalty provisions. In O'Hara v Harrington [1962] Tas SR 165, the respondent had committed an offence of drunken driving and, before he was convicted, he committed and was sentenced for another offence of drunken driving. The sentence for the first offence committed did not attract a sentence "on his second conviction for such an offence", as the Court held this to mean a conviction for an offence committed after conviction for the first offence. Burbury CJ explained the decision as follows: It may be thought to be anomalous that if a man commits the offence of drunken driving and then repeats the offence before being convicted of the first offence he escapes the increased statutory penalty in respect of his second offence. But Lord Coke, that great 17th Century judicial defender of the rights of the individual, said over three centuries ago that a man may not lawfully be subjected to an increased statutory penalty as for a second offence unless he has deliberately broken the law again after being convicted and receiving punishment for a first breach of it [Coke's Institutes, Part II, Vol 11, p 468, note 5 to the Statute of Westminster second]. The law has been taken to be so settled ever since.

This three century old canon of construction of penal provisions of this kind is broadly based on principle and does not depend upon the precise language used in a statute. It ought not to be excluded unless the legislature has plainly said so.

[52] Similar reasoning was applied in Samuels v McKenzie (1979) 23 SASR 595, where, the Court held "any previous offence ... for which the offender has been convicted" to be an offence for which the defendant has been convicted before commission of the offence in question. In Rivera v Maher (1992) 1 Tas R 228, the Court held that a penalty for a subsequent offence which was stated to apply if a person "has previously been convicted" of the offence did not apply where the second offence was committed before the conviction for the first offence. [53] We note a different construction was adopted in Strickland v Hassing (1988) 6 MVR 479), where Neasey J held that a provision for a heavier penalty "where a person is convicted of an offence ... having been previously been convicted" of a similar offence makes the heavier penalty applicable whether or not the second offence was committed after conviction for the first offence. However, this conclusion was reached by a process of construction of the relevant statutory provisions. Neasey J construed the words "where a person is convicted", to make the time of conviction the appropriate time to consider if a previous conviction was in existence. Further, that case was distinguished in Rivera v Maher on the grounds that the opening words of the provision in Strickland v Hassing were not present in the provision raised in Rivera v Maher , indicating a legislative intent to adopt the long established meaning of previous prior conviction. [54] The Court of Criminal Appeal considered the approach to be taken in sentencing as to conduct of a defendant subsequent to a guilty finding in R v Boney (unreported, Court of Criminal Appeal, NSW, 60342 of 1991, Grove J, Mahoney JA and Newman J, 22 July 1991)), where Grove J, with whom Mahoney JA and Newman J agreed, stated (at 4): His Honour observed that the applicant, who appeared for sentence in 1991, had been before courts in the period since the offences which occurred in 1987. His Honour noted these (which I shall describe as interim) and observed that other persons with whom he had to deal for offences arising out of the Brewarrina incident were in similar situations and commented: What I have already said applies particularly to him as to his conduct since this event. The approach to be taken to such interim conduct between an offence for which a person stands for punishment and its time of commission has been the subject of authoritative approach from long ago. In The King v Withers (1789) 3 TR 428 Kenyon LCJ said: "It is well settled that the conduct of a defendant subsequent to the time when he is found guilty, may be taken into consideration, either by way of aggravating or mitigating the punishment. In general it is done for his benefit, in order to extenuate the offence; but it is also done, if required, to aggravate. Though in such case the Court will always take care not to inflict a greater punishment than the principal offence itself will warrant." The same approach was manifested in this Court in R v Hutchins (1957) 75 WN (NSW) where Street CJ said: I think it is clear that in sentencing the applicant in June 1957 for a crime committed in September 1954 his Honour was entitled to take into account as matters for his consideration the convictions which the applicant had incurred between those two dates and he was entitled to take them into account for the purpose of considering whether he should reduce what he would have otherwise regarded as the proper sentence because some leniency should be extended to the applicant in the light of his youth. His Honour went on to describe the circumstances in which that claim to leniency may be forfeited by reason of interim offences. It is clear, however, as I understand the authorities, that the existence of such offences cannot be used in order to increase punishment for the principal offence. [55] In our view, these authorities confirm the correctness of the construction of the section earlier discussed by us. In our view the section is not enlivened in respect of a first offence which, due to delays in the disposal of the offence, becomes the second offence at the time when the Court considers sentencing. This may superficially give the impression that there may be two "first offences" in a given case, but we consider that the better view is that the approach we have preferred reflects the intention of the legislature to provide a higher maximum penalty where the offender has in a genuine sense offended on a subsequent occasion.

[56] In this respect, we consider that the same conclusion is reached in relation to the proper construction of s 51A if a purposive approach is applied. The apparent purpose of s 51A is to deal with second or further offences (as noted by the then Attorney General in the Second Reading Speech) where the maximum penalty for a breach of, eg s 15, in the case of the conviction of a corporation which has previously been convicted of an offence against the Act, would be $825,000. See Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610, 99 IR 29.

[57] In further support of the construction advanced by the corporate respondent, senior counsel submitted the purpose of s 51A is to punish more greatly those persons who have offended after they have already been convicted of an offence. Senior counsel referred to the predecessor of the present s 51A, which was inserted into the Act by the Occupational Health and Safety (Workers Compensation) Amendment Act 1985 . It was in the following terms: Repetition of certain offences -- additional penalty 51A. (1) This section applies to proceedings for a second or subsequent offence against this Act which comprises a wilful repetition of the act or omission which constituted a previous offence. (2) If the defendant in proceedings to which this section applies is a natural person, a sentence of imprisonment for a period not exceeding 2 years may be imposed in addition to or in substitution for any other penalty which may be imposed under this Act. (3) This section applies even if the previous offence concerned was committed before the commencement of this section.

[58] Senior counsel for the corporate respondent drew the Court's attention to the removal of the words "a second, or subsequent offence" and "a wilful repetition" from the subsequent amendment in 1995. [59] It was submitted that the changes made to s 51A by the 1995 amendment did not affect the opening words of the section, intending that the record, if a person had previously been convicted of an offence, does not operate at the time of the conviction, but at the time the offence has been committed. We agree with this submission.

[60] We, therefore, find that in circumstances such as these, the defendant, who has committed a first offence, the hearing of which before the Court is delayed until after a later offence is dealt with to the point of conviction, on the proper construction of s 51A, would not attract the section's operation in relation to that offence.

[61] The corporate respondent would, therefore, have no prior convictions under the Act. The personal respondent has no prior convictions under the Act. 18 We consider that the conclusion as to the proper interpretation of s51A of the 1983 Act is correct. The issue then in the present circumstances is whether the changes in the wording between s51A of the 1983 Act and ss4 and 12 of the Act warrant a departure from that authority. For the reasons we shall give, we do not believe the result should differ in the present proceedings. 19 We observe also that we agree with the approach to statutory interpretation taken in Morrison v Powercoal (No 3). Accordingly, we adopt the approach to the need to interpret ss4 and 12 in the context of the Act and in the context of the relevant general law. Further, we accept the importance of construing the provisions strictly given that the consequence of a person falling within the definition of "previous offender" is the possibility of the imposition of a custodial sentence. 20 The definition of "previous offender" in s4 directs attention to whether a person has previously been convicted of an offence against the Act or against the 1983 Act. In this respect, we see no relevant distinction between the definition of "previous offender" and the terms of s51A(1). We note in this regard that Staunton J was concerned with the reference to "at any time" and drew from those words a clear meaning that the relevant element was a conviction at any time prior to sentencing. As to this aspect, we see no relevant distinction in their respective intentions between the words "at any time" and "has previously been convicted" that appeared in s51A(1). Even if the expression "at any time" could be considered wider, there is a clear overlap between the two phrases, in that they both refer to events occurring before sentencing. For present purposes, there is no relevant distinction. 21 The real issue in the present case is the identification of the offence in respect of which there is a previous conviction. On a literal reading, the requirement is "any other offence of any kind". In s51A(1), the analogous requirement was "an offence against this Act (whether the same offence or another)". We see no relevant distinction between "an offence" in s51A and "any other offence" in the definition of "previous offender". 22 In Morrison v Powercoal (No 3), the reference to "has previously been convicted of an offence" was then interpreted in the context of the section and against the background of the general law. The reference in s51A(3) to "previous offence" was seen as intended to reflect a general approach that the section was intended to apply to previous offences, rather than previous convictions. Further, the context of the general law was a concern to impose a greater penalty for a conviction arising from the occurrence of a second offence, that is, "where the offender has in a genuine sense offended on a subsequent occasion". We consider the analysis undertaken in Morrison v Powercoal (No 3) as directly applicable to the present circumstances. 23 While there is no similar reference to "previous offence" in ss4 or 12 as there was in s51A(3), the description of the defined term is "previous offender". It is then only used in s12. Section 12 sets out the penalties for an offence against the Division and provides two tiers of penalties for each of a company and an individual. The tiers of penalties are such that a higher penalty may be imposed where the person is a "previous offender". In other words, the context in which the definition is used is consistent with the general law that a person who has been convicted of a prior offence is potentially subject to a higher penalty when being sentenced for the offence committed after conviction for the prior offence. Given the context in which the definition of "previous offender" is used in s12, read within the context of the general law and when the legislature has used the phrase "previous offender" to describe the person, we consider that it is plain that the reference is to a conviction for a previous offence. 24 In referring to the context of the provisions we do so in the widest sense to include the existing state of the law. This is consistent with the approach taken in Morrison v Powercoal (No 3) and other authorities: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. 25 In this regard, we agree with the submissions of counsel that this conclusion gives effect to the apparent purpose of the provision. We consider the observations as to purpose made by this Court in Morrison v Powercoal (No 3) to be directly applicable. The observations made by the Attorney-General and Minister for Industrial Relations in the second reading speech for the Act are also relevant: A major theme covered by a number of recommendations is the need to overhaul the Occupational Health and Safety Act 1983. This has been achieved with the development of an entirely modernised bill. It is now in plain English and has been reorganised in a coherent manner that will facilitate comprehension and access. However, there has been no substantive change to the meaning except for those matters to which I will refer today. 26 We concur with the submissions of the counsel for the defendants made to Staunton J that in the remainder of the speech the Attorney-General made no mention of any intention to change the procedure by which offenders had been sentenced under s51A of the 1983 Act or to change the meaning or effect of a prior offender. 27 Further, it is consistent with the overall purpose of the Act, which is not only to allow imposition of punishment for breaches of the Act but, importantly, its purpose is to provide practical deterrents by promoting, encouraging and securing workplace safety. 28 We also agree with the defendants' submissions that no intention can be imputed from the text of the legislation that the legislature intended to interfere with the general law position, namely the long-standing sentencing principles to impose a greater penalty for subsequent offences and for that matter the law as stated in Morrison v Powercoal (No 3). Were that to have been the intention, it would need to have been done by unmistakable and unambiguous language: see Coco v R (1994) 179 CLR 427. 29 We should note that counsel for the prosecutor submitted that we should interpret s12 in the way we have done by an application of the approach taken by McHugh JA in Bermingham. We turn to briefly consider this submission. 30 In Bermingham, McHugh JA made the following observations: The Interpretation Act 1987, s 33, directs the Court to give legislation the construction which promotes its purpose or object. In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, I set out in some detail (at 421-424) the principles applicable in giving legislation a purposive construction. The passage is too long to set out at length. But in the course of that judgment I pointed out that the grammatical meaning of a provision is not to be taken to represent Parliament's intention as to its meaning when the context or the purpose of the provision raises a real doubt about the applicability of the grammatical meaning. If purpose or context do raise a real doubt as to whether Parliament intended the grammatical meaning to apply, a court is entitled to depart from that meaning. Moreover, if the grammatical meaning gives rise to injustice or anomaly, it may strengthen the conclusion that the Parliament did not intend the grammatical or literal meaning to apply. Once the court concludes that the grammatical meaning does not accord with the purpose of the legislation, " … it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used": Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 at 201. But as the cases to which I referred (at 422-423) in Kingston v Keprose Pty Ltd show, it is not only when Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.

In Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 this Court applied the principles formulated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106 concerning the circumstances in which a court may read words into a legislative provision to give effect to its purpose. Lord Diplock said that a court may read words into a statutory provision when three conditions are fulfilled. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect. 31 Counsel for the prosecutor applied this approach to the present circumstances in the following way:

(a) the clear purpose of the provision is to provide a deterrent to committing a second or further offence against the Act. This is evident from the second reading speech to the Act as well as the second reading speech to the predecessor provision. This purpose is consistent with the overall purpose of the Act, which is not only to allow imposition of punishment for failures but also to provide a deterrent by promoting, encouraging and securing workplace safety;

(b) there is nothing to suggest that the legislature intended that ss 4 and 12 should achieve any other purpose and, as such, it is by inadvertence, that a literal reading of the definition in s4 would suggest that a previous conviction for a subsequent offence would mean that a person is a "previous offender"; and

(c) inserting the word "previous" before the words "offence of any kind" in the definition of "previous offender" will achieve the result. In this sense, the insertion fulfils the third requirement identified by McHugh JA, namely that it be clear what would have been used had the legislature been aware of the defect. 32 McHugh J also took a similar approach in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 (at 113) where he said Nevertheless, when the purpose of a legislative provision is clear, a court may be justified in giving the provision "a strained construction" Kingston v Keprose (1987) 11 NSWLR 404 at 422; Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 at 201 to achieve that purpose provided that the construction is neither unreasonable nor unnatural. If the target of a legislative provision is clear, the court's duty is to ensure that it is hit rather than to record that it has been missed Kingston (1987) 11 NSWLR 404 at 424, citing Lord Diplock in "The Courts As Legislators", The Lawyer and Justice (1978), p 274 . As a result, on rare occasions a court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose. In Jones v Wrotham Park Estates [1980] AC 74 at 105; Kingston (1987) 11 NSWLR 404 at 422-423, Lord Diplock said that three conditions must be met before a court can read words into legislation. First, the court must know the mischief with which the statute was dealing. Second, the court must be satisfied that by inadvertence Parliament had overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved. Third, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect. 33 This approach was considered by the New South Wales Court of Appeal in R v Young (1999) 46 NSWLR 681, in particular by Spigelman CJ. Spigelman CJ observed (at 686):

In order to construe the words actually used by parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used. Judicial statements which appear to have been prepared to countenance something more than this, should be so understood. 34 Spigelman CJ went on to discuss this approach in the following terms (at 687-688): The process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the court, must remain capable of characterisation as a process of construction of the words actually used.

The contemporary approach is as set out by Lord Diplock in Wentworth Securities v Jones [1980] AC 74 at 105-107: "My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts." The passage has been adopted and applied in this Court: see Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422, per McHugh JA (an authority frequently quoted with approval, for example, in Bropho v Western Australia (1990) 171 CLR 1 at 20; Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283, per Mahoney JA: Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292 at 299-300, per Hope JA; (at 302), per McHugh JA, see also Saraswati v The Queen (1991) 172 CLR 1 at 22, per McHugh J and Newcastle City Council v GIO General Ltd (t/as GIO Australia) (1997) 191 CLR 85 at 113, per McHugh J). The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute.

As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based. The contemporary approach to construction is well described as "literal in total context" (E Dreidger, Construction of Statutes, 2nd ed at 2): see, eg, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]. The courts no longer "make a fortress out of the dictionary": Cabell v Markham 148 F 2d 737 (1945) at 739, per Learned Hand J.

Putting to one side obvious typographical errors (see Bennion, Statutory Interpretation: A Code , 3rd ed (1997) Butterworths, London at 675-677), the court supplies words "omitted" by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable, form, the true construction of the words actually used. In my opinion, the authorities do not warrant the court supplying words "omitted" by inadvertence per se.

Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed: McAlister v The Queen (1990) 169 CLR 324 at 330; R v Di Maria (1996) 67 SASR 466 at 472-474. If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction. The construction reached in this way will often be more clearly expressed by way of the addition of words to the words actually used in the legislation. The references in the authorities to the court "supplying omitted words" should be understood as a means of expressing the court's conclusion with clarity, rather than as a description of the actual reasoning process which the court has conducted. In all cases, what the court has done is to construe the words actually used in their total context. When the authorities are so understood, the additional words proposed in the present case are plainly impermissible. 35 For the reasons already given, we are satisfied that ss 4 and 12 can be interpreted by reference to the terms of those sections themselves read in the context in which the definition in s4 is used and by reference to the context of s12 in the widest sense. In this way, it is not necessary to strictly follow the approach taken by McHugh JA in Bermingham. In any event, we are satisfied that our approach to the interpretation of ss 4 and 12 is consistent with the cautionary comments made by Spigelman CJ in R v Young.

36 We, therefore, find that the reference in the definition of "previous offender" in s4 to "been convicted of any other offence of any kind against this Act" should be interpreted as referring to convictions for offences of the requisite kind occurring prior to the offence then before the Court. In the present context, therefore, we find that neither Mr James Denson nor JBMR is a "previous offender". The answer to question 1 is, therefore, no. Question 2 37 As noted at the outset, the factual circumstances which prompted Staunton J to refer question 2 are quite distinct from the factual circumstances relevant to question 1. Question 2 relates only to the position of Mr Garry Denson. 38 Mr Garry Denson was not the subject of the charges dealt with by Boland J in Jones v Denson. Mr Garry Denson was, however, the subject of proceedings for an offence arising pursuant to s50(1) of the 1983 Act which occurred in 1999 and was dealt with by the Chief Industrial Magistrate on 18 August 2004. While finding the offence proved, the Chief Industrial Magistrate discharged Mr Garry Denson without conviction and penalty pursuant to s10 of the Sentencing Procedure Act. 39 In her preliminary judgment, Staunton J expressed the view: As well, there is an arguable point that Garry Denson is a previous offender if the principle in Powercoal (No 3) is to apply to him when regard is had to the view expressed by the Full Bench in Powercoal (No 3) at [55] where the Court said: [55] … In our view, the section is not enlivened in respect of a first offence which, due to delays in the disposal of the offence, becomes the second offence at the time when the Court considers sentencing. … we consider that the better view is that the approach we have preferred reflects the intention of the legislature to provide a higher maximum penalty where the offender has in a genuine sense offended on a subsequent occasion. (emphasis added) Given the earlier offence relating to Garry Denson, he is now an offender who 'has in a genuine sense offended on a subsequent occasion'. 40 An analogous issue was dealt with by the Court of Appeal in R v Price [2005] NSWCCA 285. Price involved a question whether it could be said that the applicant had a "previous conviction" for the purposes of s21A(2)(d) of the Sentencing Procedure Act because he had committed a previous offence which had been dealt with under s10(1)(b) of the same Act. In Price, Simpson J stated at [35] and [36]: 35 The simple consequence of the applicant having been dealt with under s10 is that he was not convicted of that offence. It was therefore argued on his behalf that it was an error for Garling DCJ to take that "conviction" into account as an aggravating factor. 36 In my opinion there are good reasons for interpreting s21A(2)(d) as proposed on behalf of the applicant, that is strictly, and excluding reference to an offence in respect of which the offender has been given the benefit of a s10 order, from s21A(2)(d). Firstly, s21A(2)(s) is, in effect, a penal provision, which ought to be construed strictly, and beneficially to those against whom it operates. That is a conventional principle of statutory construction. Secondly, a s10 order is intended, expressly, to permit an offender to retain the benefit of good character. To extend the meaning of "conviction" in s21A(2)(d) to include a finding of guilt for an offence in respect of which no conviction has been recorded would be to defeat at least part of the obligation of s10. This court has held that s21A(2)(d) involves the application of the principles stated in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465; see R v Wickham [2004] NSWCCA 193. 41 We consider that this analysis is directly applicable to the interpretation of ss 4 and 12. Simpson J found that a reference to "conviction" should be strictly interpreted and should not be construed to include an offence in respect of which a person has had the benefit of a s10 order. The definition of "previous offender" in s4 is similarly directed to whether a person has "been convicted of any other offence". 42 We consider that the approach taken by Simpson J is directly applicable. We also do not consider that any contrary view was expressed in Morrison v Powercoal (No 3) where the Full Bench was plainly considering convictions by an offender. Accordingly, we find that an offence in respect of which a person has had the benefit of a s10 order should be disregarded for the purposes of determining whether a person is a "previous offender" for the purposes of ss 4 and 12 of the Act. 43 In the present context, therefore, we find that Mr Garry Denson is not a "previous offender". The answer to question 2 is, therefore, no. Conclusion 44 We therefore remit the matter to the trial judge. The questions referred are strictly answered as follows:

1. No. 2. No. 45 The issue of costs presents some difficulties. The conclusions reached by the Full Bench are consistent with the approach of all parties, both at first instance and during the reference. The need for the reference arose because of the different approach taken at first instance. Public interest considerations therefore arose in the questions referred being authoritatively dealt with. For the defendants to be obliged to pay additional costs in respect of the reference (even their own costs) has a real potential to impose an additional penalty on them. This therefore seems to be an appropriate case for the prosecuting authority to consider paying the defendants' costs of the reference.

46 We shall therefore reserve the question of costs for 21 days to allow the parties to consider the comments above.

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