THE STATE OF WESTERN AUSTRALIA -v- PBI and MEM [2026] WACC 3

[2026] WACC 3 Page 1 JURISDICTION : CHILDREN'S COURT OF WESTERN AUSTRALIA CITATION : THE STATE OF WESTERN AUSTRALIA -v- PBI and MEM [2026] WACC 3 CORAM : QUAIL P HEARD : 3 JUNE 2026 DELIVERED : 3 JULY 2026 PUBLISHED : 3 JULY 2026 FILE NO/S : CCJO 234 of 2026 CCJO 235 of 2026 CCJO 316 of 2026 CCPE 527 of 2026 CCPE 530 of 2026 CCJO 236 of 2026 CCPE 528 of 2026 CCPE 529 of 2026 CCRO 85 of 2026 BETWEEN : THE STATE OF WESTERN AUSTRALIA Applicant AND PBI and MEM Respondents Catchwords: Children's Court - Young offenders - Road traffic offences - Sentencing - Minimum fines - Road Traffic (Administration) Act 2008 (WA) s 121 - Young Offenders Act 1994 (WA) s 46(5a) - Road Traffic Act 1974 (WA) s 106 - Application of statutory minimum fines to offenders under the age of 18 - Power to impose fines under the Young Offenders Act - Statutory construction - Coherent legislative scheme - Meaning of 'irreducible in mitigation' - Whether a global good behaviour bond can be imposed for multiple offences -- 1 of 25 -- [2026] WACC 3 Page 2 Legislation: Children's Court of Western Australia Act 1988, s 21, s 40 Graffiti Vandalism Act 2016 (WA), s 5, s 10 Road Traffic (Administration) Act 2008 (WA), s 4, s 121 Road Traffic (Vehicles) Act 2012 (WA), s 4(2) Road Traffic Act 1974 (WA), s 49, s 64, 71C, s 106 Sentencing Act 1995 (WA), s 9(3), s 39 Young Offenders Act 1997 (WA), s 4, s 6, s 46, s 46A, s 50A, s 50B, s 56, s 58, s 60, s 67, s 69, s 71, s 72, s 97, s 106, s 118, s 189(5), pt 7, p 8 Result: MEM - original order confirmed and correction of licence disqualification order PBI - original order discharged and substituted with revised good behaviour bond Representation: Counsel: Applicant : Mr J Jackson Respondents : Ms E Zillessen Solicitors: Applicant : Office of the Director of Public Prosecutions for WA Respondents : Legal Aid Commission of WA -- 2 of 25 -- [2026] WACC 3 Page 3 Case(s) referred to in decision(s): BEAA v The State of Western Australia [2012] WACC 19 Clements v Director of Public Prosecutions [2025] WASC 22 Commissioner of Stamp Duties (NSW) v Permanent Trustee Company Ltd (1987) 9 NSWLR 719 G (A Child) v The Queen (1997) 94 A Crim R 586 HSDO v Western Australia [2025] WASCA 152 Norris v "AT" (A Child) [2003] WASCA 54 P (a child) v Thompson [2011] WASC 120 Pavlovic v Spooner [2014] WASCA 31 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 RW v The State of Western Australia [2021] WACC 1 Saraswati v R [1991] HCA 21 Shergold v Tanner [2002] HCA 19 State of WA v "JJS" (a child) & Ors [2004] WASCA 81 The State of Western Australia v "A Child" [2007] WASCA 115 The State of Western Australia v IJ [2022] WACC 3 The State of Western Australia v JC (A Child) [2021] WASC 21 -- 3 of 25 -- [2026] WACC 3 QUAIL P Page 4 QUAIL P: Introduction 1 These two s 40 sentence reviews raise the same issue, being the application of minimum fines under road traffic laws to young offenders. Although the State have sought review in only these two matters, the sentence outcomes reflect a common sentencing practice among Children's Court magistrates. 2 The issue requires clarification because the applicant says in its submissions that the current practice of using 'lesser' alternative sentencing options to minimum road traffic fines is contrary to law. The State submitted further that clarification is required to ensure consistency in sentencing. The respondents submitted that the sentences imposed in these matters were lawful and appropriate in the circumstances. 3 The issue turns on questions of statutory construction, which ultimately concern whether provisions under the Road Traffic (Administration) Act 2008 (WA) and Road Traffic Act 1974 (WA) limit the sentencing power of a judicial officer such that using some of the sentencing options under the Young Offenders Act 1994 (WA) would be contrary to law. 4 For the reasons that follow, I am satisfied that the learned sentencing magistrates disposed of the matters in a manner consistent with the legislative scheme. In each case, a good behaviour bond was an available and appropriate sentencing outcome. In the matter of MEM, the original order is confirmed. In the matter of PBI, the original order is discharged and substituted with a revised good behaviour bond. Relevant history of the proceedings 5 Both MEM and PBI were between 17 and 18 years of age at the time of sentencing and sentenced under the Young Offenders Act. MEM's matter 6 On 9 April 2026, MEM was sentenced in relation to a single charge of driving a motor vehicle with a blood alcohol content of or above 0.08, pursuant to s 64(1) of the Road Traffic Act. The relevant minimum penalty for a first offender, which MEM was, was a fine of 23 penalty units ($1,150). The maximum penalty was a fine of 45 penalty units ($2,250). The offence is 'fine only' with no option of imprisonment. -- 4 of 25 -- [2026] WACC 3 QUAIL P Page 5 7 The facts of the offence were that on 15 February 2026 MEM crashed his car into the freeway emergency lane railing near the BP service station in Baldivis. Police attended and MEM underwent a breath analysis test which gave a reading of 0.115g of alcohol per 100ml of blood. 8 Contrary to the State's submissions at sentencing, the learned magistrate concluded that the minimum fine did not apply and determined instead to impose a $100 good behaviour bond (juvenile) for a period of 6 months, with no conviction to be recorded. Her Honour also imposed the required 9-month cumulative driver's licence disqualification but did not reduce that in the court sentencing record by the 2 months that she said she was going to credit for the roadside disqualification issued by police under s 71C of the Road Traffic Act. 9 On the hearing of the review, at the request of the parties, I determined to correct the error in the court outcome as to the license disqualification order and re-sentenced MEM to a 7-month driver's licence disqualification from 9 April 2026. PBI's matter 10 On 10 April 2026, PBI was sentenced in relation to eight charges, three being charges of driving a motor vehicle without authority when his authority had been cancelled, pursuant to s 49(1)(a) and s 49(3)(ca) of the Road Traffic Act. The relevant minimum penalty for those charges for a first offender, which PBI was, was a fine of 8 penalty units ($400). The maximum penalty was 12 months imprisonment. 11 Two of the other charges were offences contrary to s 4(2) of the Road Traffic (Vehicles) Act 2012 (WA). The relevant penalty for each was a fine of up to 10 penalty units ($500) and a further penalty of half the annual licence fee for the vehicle concerned being $46 for one charge and $46.25 for the other. 12 Review is not sought of the sentence imposed on the remaining three charges of providing false or misleading details, using an unlicensed vehicle on a road and failing to maintain a motor vehicle in a serviceable condition that enabled it to be driven safely. 13 The facts of the offending were that on 24 September 2025, PBI's driver's license was cancelled due to excess demerit points. On 12 December 2025, he drove an unlicensed motorbike on the road in Woodvale and was stopped by police because there was no registration -- 5 of 25 -- [2026] WACC 3 QUAIL P Page 6 plate on the vehicle. He gave police his brother's name and date of birth. On 21 December 2025, PBI was again caught by police driving the same motorbike on a road in Herdsman. The motorbike was still unregistered and missing essential safety items including mirrors. Again, PBI provided false details to police, being his brother's name and date of birth. Finally, on 28 February 2026, PBI was driving a Ford Sedan in Warwick when stopped by police. He had not regained his provisional license after completing his demerit point suspension and so was again driving under cancellation. 14 Contrary to the State's submissions at sentencing, the learned magistrate concluded that the minimum fines did not apply and determined to impose a global sentence for all charges, being a $750 good behaviour bond (juvenile) for a period of 4 months. His Honour declined to impose the half annual license fee penalty. On each of the driving under cancellation charges the magistrate, as he was required to, imposed a 9-month cumulative license disqualification (total 27 months).1 15 Because a global sentence was imposed for all eight charges, it may be necessary to review the sentencing on the three charges which are not the subject of the review application of the court's own initiative if I determine to allow the review. Section 40 review 16 The three pre-conditions for s 40 review are satisfied in each matter: firstly, the decision sought to be reviewed was made by a magistrate; secondly, it was made in consequence of a finding of guilt; and thirdly, an order was imposed in relation to the finding. 17 The approach to s 40 review is settled. The review is a hearing afresh, not an appeal, and is meant to be a speedy, accessible and relatively informal procedure. On review the court is not constrained by the sentencing limits in s 21 of the Children's Court of Western Australia Act 1988 (WA) and has the sentencing power of the president.2 18 I will adopt the same approach to review as then President Reynolds who said in BEAA v The State of Western Australia [2012] WACC 19:3 1 Road Traffic Act 1974 (WA) s 49(8) and see Clements v Director of Public Prosecutions [2025] WASC 22 [53] - [67]. 2 Norris v "AT" (A Child) [2003] WASCA 54 [43]. 3 BEAA v The State of Western Australia [2012] WACC 19 [14] - [17]. -- 6 of 25 -- [2026] WACC 3 QUAIL P Page 7 I have always approached reviews, and properly so in my view, on the basis that while a review is a hearing de novo, as President, I will not change the sentence of the magistrate unless upon a reconsideration I find that a different sentencing option should have been imposed and/or that the term and/or the conditions of the order was not or were not within an exercise of a sound sentencing discretion. 19 If following review, the president decides to discharge the order made by the magistrate, the court can only substitute an order that the president could have made at the time of the original sentencing.4 Accordingly, if an order is discharged, then notwithstanding that MEM and PBI are both now over 18 years of age, they will still be resentenced under the Young Offenders Act. Relevant principles of statutory interpretation 20 In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky), the High Court said:5 The primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purposes of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. (footnotes omitted) 21 In Pavlovic v Spooner [2014] WASCA 31, when construing the statutory regime under the Road Traffic Act, Young Offenders Act, Sentencing Act 1995 (WA) and Spent Convictions Act 1988 (WA), Martin CJ (Hall J agreeing) said:6 [27] Where a number of enactments comprise a legislative scheme, they should be construed accordingly – see Sweeney v Fitzhardinge (1906) 4 CLR 716 at 726; Commissioner of Stamp Duties (NSW) v Permanent Trustee Company Ltd (1987) 9 NSWLR 719 at 722 (Kirby P); Le Blanc v Queensland TAB Ltd [2003] 2 Ql R 65 at [42]; Peos v Manino [2004] WASCA 46 at [66]; Southside Autos (1981) Pty Ltd v Commissioner of State Revenue (2008) 37 WAR 245 at [64]. In Commissioner of Stamp Duties (NSW) v Permanent Trustee Company Ltd at 722, Kirby P said: Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so 4 The State of Western Australia v IJ [2022] WACC 3 [33] - [36]. 5 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]. 6 Pavlovic v Spooner [2014] WASCA 31 [27] - [28] (Martin CJ, Hall J agreeing). -- 7 of 25 -- [2026] WACC 3 QUAIL P Page 8 construe interrelated statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. [28] It is clear that the Road Traffic Act, the Sentencing Act, the Young Offenders Act and the Spent Convictions Act comprise a legislative scheme, in the sense that each interacts with the other so as to produce, hopefully, a coherent scheme for the sentencing of offenders (both young and adult) convicted of road traffic offences. The issue posed by these appeals concerns the specific interaction between s 189 of the Yount Offenders Act, s 25 of the Spent Convictions Act (if it applies), and s 75(2a) of the Road Traffic Act. The court's task is to endeavour to construe those provisions so as to give them "a sensible efficient and just operation" (per Kirby P above). 22 In cases where provisions are wholly irreconcilable, the court may have recourse to the governing principles of statutory construction, including those relating to the hierarchy of laws and the sequence in which the legislation was enacted. However, I remind myself that such recourse is a measure of last resort.7 The legislative scheme 23 I will turn now to consider the interaction of the relevant provisions of the Young Offenders Act, Road Traffic Act, Road Traffic (Administration) Act, and Sentencing Act. The power to impose fines under the Young Offenders Act 24 The Young Offenders Act applies to persons who commit offences when they are under the age of 18 years. Section 6 sets out the main objectives of the Act, which includes:8 […] to set out provisions embodying the general principles of juvenile justice, for dealing with young persons who have, or are alleged to have, committed offences. 25 Section 46 of the Young Offenders Act provides for the principles and considerations that a court must apply in dealing with a young offender. Relevantly, s 46(5a) provides: Subject to the Road Traffic (Administration) Act 2008 section 121 and sections 5 and 10 of the Graffiti Vandalism Act 2016 but despite any other enactment, where a written law provides that a mandatory penalty or that 7 See Commissioner of Stamp Duties (NSW) v Permanent Trustee Company Ltd (1987) 9 NSWLR 719, 722 (Kirby P). 8 Young Offenders Act 1994 (WA), s 6(b). -- 8 of 25 -- [2026] WACC 3 QUAIL P Page 9 a minimum penalty shall be imposed in relation to an offence, the court dealing with a young person for the offence is not obliged to impose such a penalty. 26 The effect of s 46(5a) is to confer a discretion on the court, removing the constraint of any prescribed mandatory or minimum penalties for an offence when disposing of a matter under the Act. This can be contrasted with the required approach to sentencing adults under the Sentencing Act.9 27 Notably, the power under s 46(5a) is subject to two express 'carve-outs'. In this case, the relevant carve-out is s 121 of the Road Traffic (Administration) Act, which provides that: Minimum fines Without limiting the Sentencing Act 1995, and despite any other written law, a pecuniary penalty provided for or in relation to an offence under a road law that is expressed to be a minimum penalty, whether by the use of the expression "minimum penalty" or "not less than" or another like expression, is irreducible in mitigation. 28 The Road Traffic Act falls within the definition of a 'road law' under the Road Traffic (Administration) Act.10 Thus, the applicant submitted that subject to the specific carve-out under s 46(5a), the court is bound by the minimum penalties prescribed by that Act. 29 Pursuant to s 50A of the Young Offenders Act, when dealing with an offender aged between 17 and 18 at the time of sentence, the court may, with limited exception, 'dispose of the matter in one of the ways provided for in [pt 7 of the Act]'. 30 Part 7 of the Young Offenders Act addresses sentencing and related matters, including the various sentencing options available to the court in dealing with a young offender. Division 5 provides for the imposition of fines on young offenders. Pursuant to limitations prescribed by s 71 and s 72 of the Act, the power to impose fines under the Young Offenders Act is much narrower than under the Sentencing Act. 31 The first statutory threshold is provided for by s 71 as follows: 9 See Sentencing Act 1995 (WA), s 9(3). 10 Road Traffic (Administration) Act 2008 (WA), s 4. -- 9 of 25 -- [2026] WACC 3 QUAIL P Page 10 If the offence is punishable by imprisonment, the court may, instead of sentencing the offender to imprisonment, impose a fine not exceeding $2000. 32 Secondly, subject to s 71, before imposing any fine the court must consider the additional threshold imposed by s 72(1), which provides: A fine is not to be imposed under this Division or any other written law on a young person unless the court is satisfied, after making reasonable enquiry, that the person who is ordered to pay the fine, or any of it, has the means to pay either on demand or by instalments related to such means. The effect of s 121 of the Road Traffic (Administration) Act when sentencing young offenders 33 As outlined above, there is no general power permitting the Children's Court to dispose of a matter by imposing a fine under the Young Offenders Act. Accordingly, a tension arises between the operation of s 121 of the Road Traffic (Administration) Act in relation to prescribed minimum pecuniary penalties and the court's obligations under s 50A of the Young Offenders Act to dispose of the matter in one of the ways provided in pt 7. 34 Given that s 121 operates only in relation to 'pecuniary penalties', the limiting effect of the provision can be read in relation to the quantum of a prescribed penalty. 35 However, the applicant submitted that the section provides a wider constraint than quantum and also prevents a court from imposing a 'lesser class of penalty'. It was submitted that it would be perverse and undermine the purpose of an irreducible fine if a significantly lesser penalty, such as a juvenile good behaviour bond, is permissible. A hierarchy of penalties under the Young Offenders Act 36 The difficulty with this submission is that, in contrast to s 39 of the Sentencing Act, the Young Offenders Act does not expressly prescribe a hierarchy of penalties. While some dispositions under pt 7 are similar to the adult penalties listed in s 39, others have no equivalent adult outcome. All are different in at least some respects and require consideration of the principles of juvenile justice. Significantly, the effect of s 46A of the Young Offenders Act is to expressly exclude s 39 of the Sentencing Act from application to a young person except if an offender is over the age of 18 years at the time of sentence, or when deciding whether an adult community order can be imposed on a 17-year-old offender. -- 10 of 25 -- [2026] WACC 3 QUAIL P Page 11 37 The applicant's submissions on this point rely on the decision of the Court of Appeal in The State of Western Australia v "A Child" [2007] WASCA 115, where Steytler P, McLure JA and Miller AJA said:11 The Act establishes a hierarchy of penalties. The final three in the hierarchy are an intensive youth supervision order (s 99), an intensive youth supervision order with a custodial sentence (otherwise known as a conditional release order) (s 101) and a term of immediate imprisonment (s 118). An intensive youth supervision order without a sentence of detention can be for a period not exceeding 2 years (s 96). A conditional release order cannot exceed 12 months (s 99). 38 That obiter remark was made in the context of the Court of Appeal dismissing a State appeal against sentence after a judge imposed an intensive youth supervision order (IYSO) rather than a custodial sentence on a young offender who pleaded guilty to various sexual offences. The Court of Appeal did not explain why the Young Offenders Act 'establishes a hierarchy of penalties', or undertake an analysis of the relevant provisions which led to that conclusion. The reference to s 118 providing for immediate imprisonment did not refer to detention, which is the other custodial sentence provided for in the section, and the court did not identify those penalties lower in the hierarchy than an IYSO. The court also did not explain what it meant by a hierarchy, although it may reasonably be inferred that it meant a hierarchy of increasing penalty severity. 39 Subsequently, in The State of Western Australia v JC (A Child) [2021] WASC 21, Smith J dealt with a sentence appeal from a Children's Court magistrate and applied The State of Western Australia v "A Child". In that case her Honour explained the nature of a s 67 disposition and fleshed out the balance of the sentencing hierarchy under the Young Offenders Act as follows:12 For charges that are dealt with by court proceedings, the dispositions open to the court are, in increasing level of seriousness: (a) imposing no punishment (s 66); (b) refraining from imposing any further punishment because of undertakings given by a responsible adult as to punishment that has been or will be inflicted on the offender, or because punishment which the 'court may approve' has already been inflicted on the offender (being the disposition in this appeal) (s 67); 11 The State of Western Australia v "A Child" [2007] WASCA 115 [17]. 12 The State of Western Australia v JC (A Child) [2021] WASC 21 [36] (Smith J). -- 11 of 25 -- [2026] WACC 3 QUAIL P Page 12 (c) refraining from imposing any punishment by the offender entering into recognisance to be of good behaviour (commonly called a 'good behaviour bond') (s 69); (d) a fine (s 71); (e) a youth community based order (s 73); (f) an intensive youth supervision order (s 78); (g) an intensive youth supervision order with detention (otherwise known as a 'juvenile conditional release order') (s 101); or (h) immediate imprisonment in detention (s 118). 40 This court has also had regard to the Court of Appeal's conclusion. As I explained in RW v The State of Western Australia [2021] WACC 1, the 'conviction shield' in s 189(5) of the Young Offenders Act only applies to youth community based order (YCBO) and IYSO sentencing dispositions. Other sentencing options, including s 67 and good behaviour bond dispositions, are not shielded. Applying The State of Western Australia v "A Child", I said '[t]hat outcome is perhaps anomalous given that the Act contemplates a hierarchy of penalties and good behaviour bonds are less serious dispositions than YCBOs and IYSOs'.13 41 Importantly, the dispositions under divisions 2, 3 and 4 of the Young Offenders Act, including good behaviour bonds under s 69, are all expressly characterised as 'no punishment' outcomes. Section 5 of the Interpretation Act 1984 (WA) defines 'penalty' as 'a fine, imprisonment, or other form of punishment'. The effect of that definition is that those 'no punishment' dispositions are not penalties at all. It is therefore difficult to reconcile the placement of such dispositions within a hierarchy of penalties. 42 The precise nature of any hierarchy of penalties under the Young Offenders Act, and the extent to which it might constrain sentencing discretion or affect available outcomes, remains unresolved by the Court of Appeal. In my view it is not necessary on these reviews to consider whether a good behaviour bond is a significantly lesser disposition than a fine. That issue is ancillary to the construction adopted in the analysis below, which gives the express provisions of the legislative scheme a 13 RW v The State of Western Australia [2021] WACC 1 [66]. -- 12 of 25 -- [2026] WACC 3 QUAIL P Page 13 'sensible, efficient and just operation',14 allowing the scheme to function coherently without undermining the purpose of relevant provisions. The preferred construction of s 121 43 Pursuant to s 46A(1)(c) of the Young Offenders Act, where the Act does not provide for a particular matter, but the Sentencing Act does, then the latter applies to the sentencing of a young person in respect of that matter. Thus, given the absence of a general power to impose fines under the Young Offenders Act, it might be contended that, despite the requirements imposed under s 50A, the matter should instead be disposed of under pt 8 of the Sentencing Act. That operation would appear consistent with s 121 of the Road Traffic (Administration) Act, which applies 'despite any other written law'. Alternatively, but to similar effect, reliance on that phrase may support the imposition of a fine notwithstanding the limitations imposed by s 71 and s 72. 44 Either construction identified above creates an irreconcilable tension within the statutory scheme, effectively requiring one set of provisions to operate despite the other. Where such tension arises, the court may turn to certain principles as aids to statutory interpretation, including the maxim that later laws abrogate prior contrary laws. 45 On one view, application of that principle might support the conclusion that s 121 overrides s 50A (and/or s 71 and s 72), thereby mandating the imposition of fines on young persons under the age of 18. However, this approach can only be adopted after careful regard to what Gaudron J said in Saraswati v R [1991] HCA 21; (1991) 172 CLR 1:15 It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. (emphasis added) 46 While s 46(5a) of the Young Offenders Act is expressly made subject to s 121, no such express override is provided in relation to s 50A (and/or s 71 and s 72). Accordingly, there must be 'very strong grounds' 14 Pavlovic v Spooner [2014] WASCA 31 [28]. 15 Saraswati v R [1991] HCA 21; (1991) 172 CLR 1, 17 (Gaudron J), cited with approval in Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 [18] (Gummow and Hayne JJ), [109] (Kirby J) and Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126, [34] (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ). -- 13 of 25 -- [2026] WACC 3 QUAIL P Page 14 to support a conclusion that s 121 necessarily alters or derogates from the requirements of those provisions. 47 In Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126, the High Court summarised earlier authority on how such 'strong grounds' were articulated:16 In Butler, Kitto J expressed the question as being whether the two items of legislation could stand or live together. In the same case, Fullagar J spoke of 'contrariety', Taylor J of 'direct conflict', and Windeyer J asked whether the two statutes were clearly and indisputably contradictory displaying such repugnancy that they could not be reconciled. (emphasis added) 48 In my opinion the tension in this case does not rise to a level of a 'direct conflict' so as to require the application of the principle. Rather, an alternative construction is available that gives the provisions a 'sensible, efficient and just operation'.17 That construction is informed by closer consideration of the phrase 'irreducible in mitigation' in s 121. 49 In Project Blue Sky, the High Court said that 'a court construing a statutory provision must strive to give meaning to every word of the provision'.18 As the respondent submitted, the phrase 'in mitigation' should be expected to do work. 50 Mitigating factors may operate to reduce a sentence. In these matters though, consistent with the submissions made by the respondent, the bar to the imposition of the prescribed penalty does not arise from mitigation. Rather, it arises from the sentencing limitations imposed by pt 7 of the Young Offenders Act, including whether a fine may be imposed at all and the requirement that it not exceed the maximum prescribed by s 71. 51 Further, and consistently with Project Blue Sky, this construction does not deprive the carve‑out of work to do. In relation to s 50A (and s 50) of the Young Offenders Act, the provision continues to operate, albeit within the sentencing power limits imposed by the Act. Further, pursuant to s 50B, young offenders over the age of 18 must be sentenced under the Sentencing Act. In such cases, the principles under s 46 16 Shergold v Tanner [2002] HCA 19; (2002) 188 ALR 302, 209 [35] (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ), citing Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268, 276 (Fullagar J), 280 (Kitto J), 285 (Taylor J), 290 (Windeyer J). 17 Pavlovic v Spooner [2014] WASCA 31 [28]. 18 Project Blue Sky [71] (McHugh, Gummow, Kirby and Hayne JJ), citing Commonwealth v Baume (1905) 2 CLR 405, 414 (Griffiths CJ, O'Connor J agreeing at 419). -- 14 of 25 -- [2026] WACC 3 QUAIL P Page 15 continue to apply,19 with the result that the carve‑out in s 46(5a) operates so that the quantum of any pecuniary penalty is 'irreducible in mitigation'. 52 Accordingly, on a proper and harmonious construction, s 121 operates to prevent the quantum of a prescribed minimum fine from being reduced by reference to mitigating factors where the imposition of a fine is otherwise lawfully available, but subject to the sentencing limitations imposed by the Young Offenders Act. On that basis, I reject the applicant's submission that s 121 prevents a court from imposing a 'lesser class of penalty' than a fine. Giving effect to s 121 when imposing fines under the Young Offenders Act 53 Having established that s 121 should be construed subject to the sentencing powers in the Young Offenders Act, it is necessary to identify the content and effect of those limits. 54 Relevantly, a fine may be imposed only when the statutory conditions permitting it are satisfied. Firstly, under s 71, where an offence is punishable by imprisonment, the court may impose a fine instead. Secondly, under s 72, even when a fine is otherwise available, it must not be imposed unless the offender has the capacity to pay. 55 It follows, as the applicant accepted, that a fine is not an available sentencing disposition for a young person under 18 in respect of 'fine only' offences. In such cases, no fine can be imposed, not as a matter of discretion, but for want of power due to the limitations imposed upon the court under the Young Offenders Act. 56 In comparison, where imprisonment is a penalty option in the offence provision, the initial s 71 threshold is met, and the court may impose a fine in lieu of imprisonment. 57 However, that power remains constrained, as the court's jurisdiction is capped at a maximum fine of $2,000.20 Thus, although maximum penalties are often identified in sentencing proceedings in the Children's Court by reference to the maximum penalty that applies to adults, for example for the offence of common assault being a maximum of 18 months imprisonment and a fine of $18,000, the effect of s 71 is that the maximum penalty for a young person is 18 months imprisonment and a fine of $2,000. 19 See HSDO v Western Australia [2025] WASCA 152 [84] - [86] (Thomson P, Mazza and Vaughan JJA). 20 Young Offenders Act 1994 (WA), s 71. -- 15 of 25 -- [2026] WACC 3 QUAIL P Page 16 58 Conversely, if a statutory minimum penalty for an offence exceeds $2,000, then the only fine the court could impose is one of $2,000. The difference would not arise from a 'reduction in mitigation' but by operation of the limit of the court's sentencing power. 59 In relation to the second limitation, in PBI's case, the learned sentencing magistrate found that PBI lacked that capacity and concluded that the minimum fines did not apply. The applicant submitted that capacity may be addressed through payment by instalments and by reliance on s 58 of the Young Offenders Act, which permits the court to make a responsible adult liable for payment as follows: (2) If a young person is found guilty of an offence and a fine is imposed or the payment of compensation, restitution, or costs is ordered, the court, having regard to the financial circumstances of the young person and any person who is a responsible adult, may order that payment of the fine or other amount be made by the young person, by any person who is a responsible adult, or by any of them in such proportions as the court may determine. 60 Notably, the court's power under s 58(2) is contingent on a fine being imposed ('if […] a fine is imposed'). As such, read together, s 72 and s 58 appear to operate sequentially. Section 72 precludes the imposition of a fine unless capacity is established. Only once a fine has been imposed does s 58 permit the apportionment of liability, including to a responsible adult. On this construction, consideration of the financial circumstances of a responsible adult provided for by s 58(2) does not arise prior to satisfaction of the threshold under s 72. 61 A potential difficulty arises from the wording of s 72, which refers to the capacity of 'the person ordered to pay the fine'. To import s 58 considerations at this stage would presuppose that a fine has already been imposed and would conflate the distinct steps of imposing a fine as a sentencing disposition and making an order as to liability and payment. Such an approach risks circularity, given that s 58 is only enlivened once a fine has been imposed. However, although consideration under both provisions appears duplicative, it is difficult to reconcile any other meaning of 'person ordered to pay the fine'. 62 In any event, even if regard could be had to the capacity of a responsible adult to pay a fine, the power under s 58(2) remains discretionary because of the word 'may'. 63 While s 72 and s 58 refer to a means based inquiry, in the context of compensation orders under s 56, making an order against a responsible -- 16 of 25 -- [2026] WACC 3 QUAIL P Page 17 adult may require considerations such as whether the adult contributed, by act or omission, to the commission of the offence.21 That discretionary framework reinforces the conclusion that s 58 should not be read as automatically mandating recourse to a responsible adult as a means of satisfying the threshold requirement under s 72. The judicial officer retains a discretion that extends beyond financial considerations. 64 Accordingly, the legislation imposes clear limits on the imposition of fines on young offenders. Those limits include both the monetary cap and the requirement to establish capacity to pay. Where those conditions are not met, the non‑imposition of a fine reflects a lack of sentencing power rather than an impermissible reduction of a prescribed minimum penalty. 65 In my view, undertaking the above exercise to determine whether a fine may be imposed gives effect to the principle in s 121 of the Road Traffic (Administration) Act. The provision evidences a legislative policy to constrain judicial discretion in relation to quantum, so as to ensure that the minimum penalty is consistently applied. However, if it is determined that a fine cannot be imposed, whether due to the nature of the offence or the offender's capacity to pay, including by instalment or through apportionment of liability, the next step must be to determine the appropriate alternative sentencing outcome. Alternative sentencing options – s 106 of the Road Traffic Act 66 The applicant relies on s 106 of the Road Traffic Act as indicative of a legislative intention that a YCBO is, as an alternative to a fine, the appropriate sentencing outcome. 67 The provision expressly identifies alternative sentencing outcomes in respect of certain offences, including those characterised as 'fine only' offences. These offences are summarised in the following table, which illustrates a differentiated approach to alternative sentencing having regard to the relative seriousness of the offences: Section 106 Offence Provisions covered Common feature Alternative provided (3) First offence: 63, 67, 67AD(6); or Minimum and maximum fines, no imprisonment. may, instead of imposing a fine — … (d) if the offender is a young person under the [YOA], subject to sections 50, 50A and 50B of that Act, make a youth community based order under 21 State of WA v "JJS" (a child) & Ors [2004] WASCA 81 [25] - [28]. -- 17 of 25 -- [2026] WACC 3 QUAIL P Page 18 64, 64B(3), 67AD(4), 67A that Act imposing at least community work conditions on the offender. (5) 49(1) in 49(3) circumstance; or Second offence: 63, 67, 67AD(6) Minimum fines with imprisonment open. If a court sentencing a person convicted of […] orders the release of the offender and imposes a [YCBO or IYSO under the YOA], the court must impose community work conditions on the offender as part of the order. (7) First offence: 64AB, 67AA Minimum and maximum fines, no imprisonment. A court sentencing a person who has been convicted of […] must, instead of or in addition to imposing a fine — […] make a [YCBO] under [the YOA] imposing at least attendance conditions on the offender. (8) Second offence: 64AB, 67AA Minimum fines with imprisonment open. A court sentencing a person who has been convicted of […] must, instead of or in addition to imposing a fine — […] make a [YCBO or IYSO under the YOA] imposing at least attendance and supervision conditions on the offender. [unless] the court imposes a custodial sentence on the offender. 68 In relation to the s 64 offence, the applicant submitted that, were it not for s 106(3), the 'maximum applicable sentence for [MEM] would be something "less than" a fine'. Unlike a fine, a YCBO is an available disposition under pt 7 of the Young Offenders Act.22 On that basis, the State's position appears to be that, where a fine is unavailable, Parliament has provided a YCBO as the mandatory sentencing alternative to a fine. 69 However, that construction sits uneasily with the discretionary nature of s 106(3), as imported by the word 'may'. That discretionary character is reinforced by s 106(3)(d), which provides that disposal under the provision is subject to s 50, s 50A and s 50B of the Young Offenders Act, thereby expressly recognising all of the alternative sentencing options prescribed by those provisions. 70 Further, the express carve‑out in s 46(5a) of the Young Offenders Act refers only to s 121 of the Road Traffic (Administration) Act, which, as discussed above, operates solely to preclude reduction in the quantum of pecuniary penalties by reference to mitigating factors. Having given effect to that principle, it should be noted that s 46(5a) otherwise applies 22 Young Offenders Act 1994 (WA), pt 7 div 6. -- 18 of 25 -- [2026] WACC 3 QUAIL P Page 19 'despite any other enactment'. It follows that the general discretion conferred by s 46(5a) is not constrained by s 106 of the Road Traffic Act. 71 Notably, s 46(5a) extends beyond the quantum of a penalty to its nature, in providing that the court is 'not obliged to impose such a penalty'. A useful comparison arises from the other carve-out in s 46(5a), namely s 5 and s 10 of the Graffiti Vandalism Act 2016 (WA) that provide:23 5. Damaging property by graffiti (1) A person must not destroy, damage or deface the property of another person by graffiti without that other person's consent. Penalty: a fine of $24 000 and imprisonment for 2 years, but the minimum penalty — (a) for an adult offender, is a community based order; (b) for a child offender, is a youth community based order. 10. Conditions to attach to community orders (1) Where an offender is sentenced to a community order, the court must impose a condition that a minimum of 10 hours unpaid community work be carried out by the offender. (2) The unpaid community work is to be performed by the offender (whether adult or child) at the direction of the CEO and the work is to comprise graffiti removal work, where practicable. (3) This section operates despite the Young Offenders Act 1994 section 46(5a). 72 Those provisions operate 'despite s 46(5a)' and expressly mandate a YCBO as the minimum penalty for a child offender. Unlike s 121, which concerns pecuniary penalties, the relevant provisions of the Graffiti Vandalism Act prescribe both the nature of the penalty and the minimum conditions to be imposed. This demonstrates that, in light of s 46(5a), where the legislature intends to mandate a particular sentencing outcome for young persons, it does so expressly and in a manner consistent with the broader legislative scheme. 23 Graffiti Vandalism Act 2016 (WA), s 5 and s 10. -- 19 of 25 -- [2026] WACC 3 QUAIL P Page 20 73 The above analysis applies similarly in relation to the alternative provided by s 106(5) for the s 49 offence in the circumstances mentioned in subsection (3). Pursuant to s 106(5), if a court orders the release of an offender and imposes a YCBO or an IYSO, the court must impose community work conditions. Again, by comparison with s 10 of the Graffiti Vandalism Act, where it is necessary to mandate particular conditions, this is done expressly and, by reference to a carve‑out from s 46(5a) of the Young Offenders Act. 74 Additionally, s 106(5) does not appear to otherwise constrain the court's discretion in determining the appropriate sentencing outcome, rather it operates only to prescribe the conditions that must be imposed if a particular outcome is ordered. This conclusion is reinforced by comparison with the express language used in s 106(7) and s 106(8), which provide that the court 'must, instead of or in addition to imposing a fine', take specified action. Those words indicate a clear intention to bind the court's discretion. However, it is unnecessary for present purposes to consider the operation of those subsections in relation to s 46(5a). The proper approach to the imposition of fines on young offenders for road traffic offences 75 In summary, the legislative scheme should be construed so as to promote a 'sensible, efficient and just operation'. Accordingly, in sentencing a young person under the age of 18 for offences arising under road traffic legislation, it is necessary to consider the harmonious operation of the provisions of the Young Offenders Act, Road Traffic Act, Road Traffic (Administration) Act and Sentencing Act. 76 In determining the appropriate sentencing outcome, it is first necessary to establish the applicability of s 121 of the Road Traffic (Administration) Act. This requires consideration of whether a fine is lawfully available under pt 7 div 5 of the Young Offenders Act. That inquiry proceeds in two stages. Firstly, whether imprisonment is an available penalty; and secondly, if imprisonment is available, whether a fine can be imposed, having regard to the offender's capacity to pay, including by instalment or through apportionment of liability to a responsible adult. 77 If, after undertaking the above exercise, the judicial officer determines that the imposition of a fine is open under the Young Offenders Act, then a fine must be imposed. The quantum of the fine is -- 20 of 25 -- [2026] WACC 3 QUAIL P Page 21 fixed by any prescribed minimum pecuniary penalty; however, that minimum is subject to the $2,000 cap imposed by s 71. 78 If it is determined that a fine is not an available sentencing outcome, the court must then consider the appropriate alternative, having regard to the sentencing options identified in s 106 of the Road Traffic Act, read in light of the discretion conferred by s 46(5a) of the Young Offenders Act. Conclusion on review for MEM 79 On review and at the original sentencing, the applicant submitted that because MEM was 17 years old at the time of sentencing and the offence was a fine only offence, the court had no power to impose a fine and the only available sentencing option was to impose a YCBO with community work conditions. 80 The respondent submitted at sentencing and on review that a good behaviour bond was the appropriate disposition. 81 The magistrate disagreed with the State's sentencing submission and said that the Young Offenders Act still applied and the court's sentencing options under the Act were not proscribed in the way contended by the State. 82 For the reasons I have explained above, I agree with her Honour's conclusion as to the sentencing options available to the court. 83 MEM was a first offender, pleaded guilty, was working full time and had recently moved into shared rental accommodation. At the time of the offence, he was living in a youth shelter. 84 On review I would not change the sentence of the magistrate, which was within the exercise of a sound sentencing discretion. I confirm the order of the court pursuant to s 69 of the Young Offenders Act to impose a $100 good behaviour bond for a period of 6 months, with no conviction to be recorded. I have already corrected the license disqualification order. Conclusion on review for PBI 85 On review and at the original sentencing, the applicant submitted that because PBI was 17 years old at the time of sentencing the court had no power to impose fines for the five 'fine only' offences and a good behaviour bond was the appropriate disposition. As to each of the driving under cancellation charges, which carried a potential sentence of -- 21 of 25 -- [2026] WACC 3 QUAIL P Page 22 imprisonment, the applicant submitted that a YCBO with at least community work conditions was appropriate. 86 PBI was a first offender and pleaded guilty to the charges. At the time of the offences, he was a third-year apprentice boilermaker and driving to work because he had no other means of transport. He had moved from living with his parents in Manjimup to Perth to undertake the apprenticeship. After he was charged, he lost his apprenticeship and income. He used his savings to pay the impoundment fee for the release of the Ford sedan he was driving at the time of the third offence which he had borrowed from a friend. 87 The respondent submitted at sentencing that a good behaviour bond was appropriate and if PBI was fined he would have to explore a time to pay arrangement or community work. On review, counsel submitted that the 27-month license disqualification had a catastrophic effect on PBI and at the time of review he was seeking alternative accommodation and employment. 88 In sentencing, the magistrate found that the minimum fines did not apply to PBI and was not satisfied that the conditions in s 72 of the Young Offenders Act were met because PBI was unemployed and had limited capacity to pay a fine.24 His Honour concluded PBI did not have the capacity to pay half the annual license fee either.25 In the circumstances of this case, where PBI was almost 18 years old, had lost his employment, and been working and living independently of his parents for some time, it was not necessary for the court to engage in any more detailed means inquiry to determine whether payment of a fine by instalments was possible or whether an order to pay the fine or part of it should be made against a responsible adult pursuant to s 58 of the Young Offenders Act. 89 His Honour expressly considered a YCBO in the context of recognising the seriousness of the repeated driving under cancellation offending but concluded such an order was not appropriate because the 27-month licence disqualification that he was required to impose was a significant penalty. In my view, that was the correct conclusion, not only because the length of the suspension was very substantial for any person, let alone a young person, but because of the effect of that suspension in this matter. As a direct consequence of his offending and poor decision making, PBI lost not just his employment, but his apprenticeship and route to qualification and a secure future. He lost his independence, 24 ts 15, 8 April 2026. 25 ts 4, 10 April 2026. -- 22 of 25 -- [2026] WACC 3 QUAIL P Page 23 accommodation and savings. The substantial consequences of his offending would have been both a salutary lesson and considerable setback in his life. 90 In my opinion, but for those consequences of licence suspension, a good case could be made that the severity of the second and third driving under cancellation charges was not properly recognised by the imposition of a good behaviour bond. 91 A good behaviour bond under s 69 is not a punishment, but a promise by the offender and a condition imposed by the court 'to keep the peace and be of good behaviour for a term not exceeding one year.' The promise is secured by a recognisance or surety or both, the amount of which is in the court's discretion. 92 Imposing a 'global penalty' in relation to multiple charges is not expressly provided for by way of a good behaviour bond under the Young Offenders Act. Section 54 of the Sentencing Act provides for the imposition of a 'global' fine, and provisions of the Young Offenders Act provide for YCBOs and IYSOs relating to more than one offence.26 However, such an approach is not expressly prohibited, and was adopted by Hall J in P (a child) v Thompson [2011] WASC 120, where, in relation to three charges, his Honour re‑sentenced the offender 'by imposing no penalty, but requiring him to enter into a recognisance to be of good behaviour.'27 93 His Honour's approach is consistent with the language of the Young Offenders Act. Under s 60, the relevant 'sentence' is the 'decision' to 'refrain from imposing any punishment', with s 69 empowering the court to require the offender to enter into a recognisance. On that approach, and applying s 5 of the Interpretation Act, the recognisance is not itself a penalty, but a condition requiring the offender's promise of good behaviour. That promise is ancillary to the offences, which are disposed of without penalty.28 94 In my opinion, and having regard especially to the consequences of his lengthy license suspension, a global good behaviour bond dealing with all the offences was the appropriate disposition for PBI. However, the recognisance imposed by the magistrate was too small in amount and 26 Young Offenders Act 1994 (WA), s 97 and s 106. 27 P (a child) v Thompson [2011] WASC 120 [24]. 28 See also, G (A Child) v The Queen (1997) 94 A Crim R 586, 590 - 591(Malcolm CJ, Ipp and Steytler JJ). -- 23 of 25 -- [2026] WACC 3 QUAIL P Page 24 for too short a period. Because of the repeat driving offending, personal deterrence was an important consideration. 95 Accordingly, on review I have concluded to discharge and substitute the order of the magistrate. In its place, pursuant to s 69 of the Young Offenders Act, I impose no penalty, but require PBI to enter into a recognisance to be of good behaviour. The recognisance will be in the amount of $1,000, without sureties, for a period of 9 months from the date of the original sentencing decision, and will apply to all charges, including those not the subject of the review application. I have backdated the bond, ordering what I could have ordered at the time, taking into account that PBI has complied with the original order. No convictions will be recorded. 96 Finally, in relation to the charges contrary to s 4(2) of the Road Traffic (Vehicles) Act, the relevant penalty is provided as follows: Penalty: a fine of 10 PU, and in addition, the court is to order the accused to pay a further penalty equal to the charges payable under this Act for the grant of a vehicle licence for the vehicle concerned for a period of 6 months. 97 The applicant submitted that the additional order, requiring payment of the half-yearly licence fee, constitutes a pecuniary penalty, but not a 'fine', with the consequence that the court is not constrained by the limitations on the imposition of fines under the Young Offenders Act. On that basis, it was contended that the court is bound by s 121 of the Road Traffic (Administration) Act to make the order. 98 I do not accept that conclusion. Section 121 specifically applies to pecuniary penalties that are 'expressed to be a minimum penalty'. Relevantly by comparison, s 46(5a) of the Young Offenders Act refers to both 'mandatory' and 'minimum' penalties. In the present case, the requirement to make the order for the half-yearly licence fee is expressed in terms that provide no discretion. In my view, it is properly characterised as a mandatory component of the prescribed penalty. 99 Thus, it follows that s 121 has no application. Accordingly, the operation of s 46(5a) is not displaced, with the result that the court is not obliged to impose the mandatory penalty. -- 24 of 25 -- [2026] WACC 3 QUAIL P Page 25 100 I agree with the magistrate’s finding that PBI did not have the capacity to pay half the annual license fee and on review I decline to impose that additional penalty. I certify that the preceding paragraph(s) comprise the reasons for decision of the Children's Court of Western Australia. SS Associate to the Judge 3 JULY 2026 -- 25 of 25 --