YATES -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 144 (10 July 2008)

YATES -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 144 (10 July 2008) - WASCA 2008 case summary — Zoe

[90]

38 In Wallam, McLure JA also relied upon the enactment of s 304 of the Criminal Code as an aid to the construction of the transitional provisions. Again with respect, in my opinion this is not one of those cases in which later legislation can properly be used to shed light upon the proper construction and effect of earlier legislation. It is clear from the extrinsic materials, including the Parliamentary Debates and Explanatory Memoranda relating to the Criminal Code Amendment Bill 2003, which resulted in the enactment of s 304 of the Criminal Code, that the legislation was intended to give effect to recommendations made in the 1983 General Review of the Criminal Code undertaken by Mr M Murray QC (as his Honour then was) (Western Australia, Parliamentary Debates, Legislative Assembly, 3 April 2008, 6158 (Mr J A McGinty, Attorney General)). The Criminal Code Amendment Bill 2003 was introduced and read first in the Parliament on 3 April 2003, prior to the publication of the Report of Standing Committee to which I have referred, or the amendment of the Sentencing Legislation Amendment and Repeal Bill 2002 which gave effect to that recommendation. It seems a fair inference from the relative timing of the two pieces of legislation, and the historical origin of the Criminal Code Amendment Act 2004 (WA), that if there is any anomaly when the maximum penalty for an offence contrary to s 304(2) is compared to the maximum effective penalty for a contravention of s 294 of the Criminal Code, it is to be attributed to an inadvertent Parliamentary oversight rather than the application of the mind of the Legislature to the effect of the Sentencing Legislation Amendment and Repeal Act 2003 at the time of enacting the amendments to the Criminal Code. And in any event it is I think a matter of some speculation as to whether there is in fact an anomaly in relation to the maximum penalties available in respect of those two offences. Section 294 can potentially apply to a range of conduct which might include conduct within a relatively low range of seriousness - for example, an attempt to strike somebody with a projectile with intent to resist lawful arrest, whereas s 304(2) potentially embraces very serious conduct - for example endangering the life of a person with intent to harm. Accordingly, the fact that the Legislature provided a maximum penalty of 20 years for a contravention of s 304(2) at a time when any penalty imposed for a contravention of s 294 was subject to the transitional provisions does not, with respect, seem to me to shed any light upon the proper construction of those transitional provisions,

[189]

Lands (NSW) v Jeremias [1917] HCA 41; (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J).

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 440, per Gibbs J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565 at 574, per Gummow J). Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other' (Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision (The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13, per Mason CJ). In The Commonwealth v Baume ((1905) [1905] HCA 11; 2 CLR 405 at 414) Griffith CJ cited R v Berchet ((1688) [1794] EngR 1806; 1 Show KB 106 [89 ER 480]) to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent' [69] - [71].

[279]

The learned Judge erred in fact and in law in finding and in sentencing the appellant in respect of the s 304(2)(a) offence on the basis that after he did a u-turn on Marmion Avenue, he came to a stationery position on the southbound carriageway, and in effect therefore intended to have a confrontation with the complainant, when the evidence as a whole did not establish that the appellant had so stopped his vehicle, further or alternatively, where the learned Judge did not give reasons for such finding notwithstanding the conflicting evidence in relation to this matter.
The learned Judge erred in law in sentencing the appellant on the basis that the impact of the s 304(2)(a) offence on the complainant was not 'unpredictably severe' and 'was nothing more than you might expect when you aim a car at someone and hit them', and on the basis that grievous bodily harm was caused, in circumstances where the jury acquitted the appellant of the charge under 294(1), and was therefore not satisfied that the appellant foresaw that grievous bodily harm would be caused.
Further or in the alternative, the learned Judge erred in law in imposing sentences that were manifestly excessive having regard to the nature and circumstances of the offences and the appellant's personal circumstances and antecedents.
The learned Judge erred in law in deciding that the sentence in respect of the s 304(2)(a) offence did not fall to be reduced by one-third under the transitional sentencing provisions in Schedule 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), and in not so reducing the sentence.
The learned Judge erred in law in considering the offence created by s 304(2) to be amongst the most serious offences contained in the Criminal Code, and thereby considering the offence to be more serious than was warranted, on the erroneous basis that parliament intended the 20-year maximum to be a true maximum which did not fall to be reduced under the transitional sentencing provisions.

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YATES -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 144 (10 July 2008)

Legislation Cited (11)

Cases Cited (25)