WorkCover Authority of NSW v Denson and others

WorkCover Authority of NSW v Denson and others - [2007] NSWIRComm 69 - NSWIRComm 2007 case summary — Zoe

[20]

(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

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[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.

[57]

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.

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[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.

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[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.

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(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):

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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.

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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:

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