D'COSTA -v- ROE [2013] WASC 99 (22 March 2013)

Sentence of imprisonment set aside and appellant resentenced

1 On 9 October 2012 the appellant pleaded guilty to a charge of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (the Act). On 16 October 2012 he was sentenced to 8 months' immediate imprisonment. He now seeks leave to appeal against that sentence.

2 The magistrate sentenced the appellant on the basis that he had committed, and been convicted of, at least two offences under s 61(1) of the Act within the period of two years prior to the present conviction. On that basis the court was required to impose a sentence of imprisonment unless such a sentence would be clearly unjust and the appellant was considered to be a person who was unlikely to be a threat to the safety of the protected person or the community generally: s 61A(5) and s 61A(6).

3 The principle issue in this case is whether the magistrate was correct in treating the appellant as a person who had been convicted of two relevant prior offences. There is no dispute that the appellant had committed other offences of breaching a violence restraining order on 3 July 2012 and 11 July 2012. However, he contends that because he was convicted and sentenced for those two offences on the same day, namely 13 July 2012, they should have been treated as a single conviction for the purposes of s 61A.

4 The appellant's argument relies upon a long standing principle that where a statute provides a hierarchy of penalties for first, second, third or subsequent offences, an offender should not be treated as being a subsequent offender unless at the time of commission of the offence he had previously both committed and been convicted of an offence of the relevant type at the next lowest level of the penalty hierarchy. The underlying rationale for that principle is that an offender should not be exposed to a higher penalty in such a hierarchy unless they have come before a court and been exposed to the immediate prior lower penalty. The assumption is that the hierarchy has been constructed not only to more harshly punish repeated offending but offending that persists in the face of convictions in court and the warnings attendant thereon.

5 The issue in this case is whether the principles extracted from those cases dealing with a hierarchy of penalties are applicable to s 61A of the Act. That depends critically upon the interpretation of s 61A and an understanding of the purpose that that provision is intended to have.

6 For the reasons that follow I have concluded that the appellant's contentions as to the interpretation of s 61A are correct. The magistrate was in error in concluding that s 61A applied to the appellant. That error was a material one and requires that the sentence be set aside and the appellant be resentenced. Taking into account the time already served, the appropriate penalty now is a community based order.

7 The appellant and his wife are separated. They have two sons aged 10 and 13. There have been what are described as 'protracted' Family Court proceedings in respect of custody and access to the children.

8 At some point the appellant's wife obtained a violence restraining order. A copy of the order has not been provided on this appeal but all parties accept that the order was current at all relevant times. The order named the appellant's wife and his sons as protected persons. The terms of the order required the appellant not to communicate with the protected persons or to approach within 50 m of the boundary of the wife's residence. It would appear that the violence restraining order permitted the appellant to see and communicate with his children provided that in doing so he was complying with orders of the Family Court.

9 On 3 July 2012 and 11 July 2012 the appellant breached the violence restraining order. The submissions made to the magistrate by the appellant's counsel regarding the factual circumstances of these two offences were not disputed. It was said that the first offence involved a text message from the appellant to his wife. No violence or threat of violence was involved. The second offence was said to involve attending at the wife's house, knocking on the front door and the appellant then remembering that there was a restraining order in existence and leaving without incident. The appellant was charged in respect of these breaches and was sentenced on 13 July 2012 to a fine of $500 for the first offence and $350 for the second offence. Clearly he pleaded guilty to those offences at the first reasonable opportunity.

10 On 15 September 2012 the appellant again breached the violence restraining order. This is the incident which is the subject of this appeal. The facts were that at about 2.50 am on that day the appellant was seen by a neighbour in close proximity to the property. The neighbour challenged the appellant as to what he was doing there. The appellant then placed two of his personal business cards into the letterbox of the property. There was an altercation between the appellant and the neighbour before the appellant left on foot. He was apprehended by police a short time later. He told police that he had wanted to say goodbye to his children.

11 In mitigation it was said that the appellant worked in the fishing industry and had previously operated his own boat. This would take him away from home for weeks at a time. Prior to the violence restraining order being in place he had been in the habit of attending to say goodbye to his children prior to going off for work. The work on this occasion was at Shark Bay for four weeks. The appellant's intention in going to the house was to drop two business cards off, one for each child, to let them know that he had not forgotten about them and still wanted to be involved in raising them to whatever extent the Family Court would allow him to do so.

12 The appellant was 42 years old at the time he came to be sentenced. He was a man of previous good character. He had no criminal record of any consequence other than the two prior breaches of the violence restraining order. He pleaded guilty to the present offence at the earliest opportunity. There was no suggestion that there had been any violence, or threat of violence, in relation to the present breach, the previous breaches, or at all.

13 On 9 October 2012 after the plea of guilty had been entered and sentencing submissions made there was some discussion as to whether s 61A of the Act applied. The appellant's counsel noted that the previous convictions had both occurred on the same day and it was submitted that this made one prior conviction for the purpose of sentencing.

14 It was also submitted that, in any event, it would be unjust to imprison the appellant because the circumstances of the offence were of a less serious type because no violence had been involved or threatened, that the appellant's ability to participate in the Family Court proceedings would be prejudiced if he was imprisoned and that he would also be unable to have contact with his children pursuant to any interim order made by the Family Court.

15 The magistrate said that he needed to consider whether s 61A had application to this case. He adjourned sentencing to 16 October 2012. The appellant's bail was extended to that date. The bail included protective conditions that mirrored those contained in the restraining order. This indicates that the appellant was not considered to present such a threat to the safety of the protected persons that a remand in custody was necessary.

16 On 16 October 2012 the appellant was again represented by the same duty counsel. It was submitted on behalf of the appellant that s 61A should be read narrowly because it was a criminal provision with significant potential adverse effect on offenders. It was said that if read literally the section would produce unfair results in some circumstances. An example was said to be where a person was charged with multiple offences arising from the same incident on the same day. It was suggested that if s 61A was read literally this might result in such a person being liable to a presumption of imprisonment when they came to be dealt with for the third offence even if all three offences were dealt with on the same day.

17 The magistrate concluded that s 61A did apply to the appellant. His Honour said:

I have considered whether the conviction that was recorded - the convictions recorded on the same date, that's 13 July 2012 - as to whether or not they were two convictions and or as put to me by defence counsel, one conviction based on arguments in terms of some ambiguity about the meaning of conviction and also with reference to the Criminal Code, I regard the two, as I've indicated to convictions as two convictions for the purposes of sentencing today. They show on the record as two separate offences and they show, in my view on the record, being committed on different days, notwithstanding the convictions recorded on the same date, my conclusion is that they are two separate convictions.

I have considered case authorities under the road traffic legislation summarised in a 2009 decision of DPP v Partridge NSWCCA 75. However, I distinguish those authorities, dealing with traffic offences to the matters before me of section 61A and as well, with respect to defence counsel, I distinguish the Criminal Code burglary matters again as being quite different to my interpretation of 61A of the Restraining Orders Act as had been amended and it's quite clear to me that Mr D'Costa, for sentencing is a third offender today. On 13 July 2012 when he was before the Joondalup Magistrates Court, Mr D'Costa was informed by the magistrate that any further offending would render him a thirdstriker under the amendments that had then come into place under the Restraining Orders Act. As well, duty counsel on the day as I understand, a Ms Sanders, said in court, and I quote referring to her client:

'He understands the position he is in in relation to these breaches of violence restraining orders now and that he under no circumstances, unless the order is actually cancelled, to have any contact with his ex wife.' (ts 7 8)

18 The magistrate referred to the Second Reading Speech in respect of the Bill that introduced s 61A. He then turned to the circumstances of the offending and said that the fact that this offence had occurred so soon after the July offences made personal deterrence a dominant consideration. His Honour also considered that the fact that the offence occurred at 2.50 am was a significant aggravating factor. He referred to the fact that the appellant had no prior record other than the two earlier breaches. He considered a suspended sentence of imprisonment but said that it was inappropriate because of the seriousness of the offending and the strong need for personal deterrence.

19 The grounds of appeal, as amended, are as follows:

1. The learned Sentence Magistrate [sic] erred in law in finding that the Appellant should be sentenced as a person who had committed, and been convicted of, at least 2 offences under s 61(1) within the period of 2 years before the Appellant's conviction for the offence the subject of this appeal pursuant to s 61AZ(b) Restraining Orders Act 1997.
2. In the alternative, the learned Sentencing Magistrate erred in failing to find that imprisonment would be unjust given the circumstances of the offence and the appellant.
3. In the alternative, the sentence of eight months was, in all the circumstances of the offence and of the appellant, manifestly excessive.

The reference to s 61AZ(b) is an error. It should clearly be a reference to s 61A(2)(b). The second and third grounds are framed as alternatives and as such only need to be considered if ground 1 fails.

61A. Penalty for repeated breach of restraining order

(1) In this section -

(a) includes a finding or admission of guilt despite a conviction not being recorded under the Young Offenders Act 1994 section 55; and

(b) does not include a conviction that has been set aside or quashed.

(a) is convicted of an offence under section 61(1) or (2a) (the relevant offence); and

(b) has committed, and been convicted of, at least 2 offences under section 61(1) or (2a) within the period of 2 years before the person's conviction of the relevant offence.

(3) This section applies despite the Sentencing Act 1995 and the Young Offenders Act 1994.

(4) Except as provided in subsection (6), if the person is a child a penalty must be imposed on the person for the relevant offence that is or includes -

(a) imprisonment under the Young Offenders Act 1994 section 118(1)(a); or

(b) detention under the Young Offenders Act 1994 section 118(1)(b).

(5) Except as provided in subsection (6), if the person is not a child a penalty must be imposed on the person for the relevant offence that is or includes imprisonment.

(6) A court may decide not to impose a penalty on the person that is or includes imprisonment or detention, as the case requires, if -

(a) imprisonment or detention would be clearly unjust given the circumstances of the offence and the person; and

(b) the person is unlikely to be a threat to the safety of a person protected or the community generally.

(7) A court that does not, because of subsection (6), impose a penalty on a person that is or includes imprisonment or detention must give written reasons why imprisonment or detention was not imposed.

21 Section 61A(2)(b), which is the critical provision here, is not obviously ambiguous. The literal meaning of that provision is that the section will apply if a person who is convicted of breaching a violence restraining order has, in the previous two years, committed and been convicted of at least two similar offences. Thus on a literal reading of the section it requires the following to be established:

1. that the person is convicted of an offence under s 61(1) or s 61(2a);
2. that in the period of two years prior to that conviction the person has committed two other offences of the same type; and
3. that the person has been convicted of those earlier offences before they come to be dealt with for the current offence.

Counting prior convictions - relevant principles

22 The appellant submits that the literal reading of s 61A needs to be modified to take into account a line of authority dealing with how convictions are counted in respect of provisions where there is a hierarchy of penalties.

23 The relevant principle was referred to by Hogarth J in Ryszawa v Samuels [1969] SASR 158. In that case the provision in question provided for a penalty not exceeding $2 for a first offence and not exceeding $10 for any subsequent offence. Hogarth J noted that the magistrate who imposed the penalty 'probably read the section literally as authorising the higher maximum penalty for an offence committed on a day subsequent to the first offence, even though at the time of the commission of the subsequent offence no conviction had been recorded in respect of the first offence'. His Honour then said:

While a literal reading of the section would seem to justify this approach, it has long been established in other jurisdictions that a person cannot be convicted as for a second offence unless that offence was committed after the conviction for the earlier offence against the same law. See for example Christie v Britnell [1895] VicLawRp 9; (1895) 21 VLR 71; O'Connor v Bini [1908] VicLawRp 79; [1908] VLR 567; Farrington v Thompson [1959] VicRp 49; [1959] VR 286; O'Hara v Harrington [1962] TASStRp 19; [1962] Tas SR 165; and Joyce v Smith [1962] Tas SR 11. These decisions stem from a principle laid down by Lord Coke which has developed into a general principle in the interpretation of statutes that where the legislature imposes an increased penalty for a 'second offence' that expression bears the technical meaning of 'an offence committed after conviction of a first offence', unless there is some indication in the particular act under review which raises an inference to the contrary.

24 The principle attributed to Lord Coke to which Hogarth J referred was explained by Burbury CJ in O'Hara v Harrington [1962] TASStRp 19; [1962] Tas SR 165:

Lord Coke that great 17th Century judicial defender of the rights of the individual said over three centuries ago that a man may not lawfully be subjected to an increased statutory penalty as for a second offence unless he had deliberately broken the law again after being convicted and receiving punishment for a first breach of it (2 Institutes 468). The law has been taken to be so settled ever since. This three century canon of construction of penal provisions of this kind is broadly based on principle and does not depend upon the precise language used in the statute. It ought not be excluded unless the legislature has plainly said so.

25 The principle has been applied not only to multiple convictions recorded on the one occasion but also to circumstances where an offender had not been convicted for an earlier offence at the time he or she committed a subsequent offence. See Samuels v Mackenzie (1979) 23 SASR 595; Clark v Glover (1992) 58 SASR 571; and Police v Nowak [2000] SASC 82; (2000) 76 SASR 551.

26 In Carter v Denham [1984] WAR 123, Kennedy J considered the application of the principle in the context of an offence under the Road Traffic Act 1974 (WA). In that case the appellant had committed offences on 20 and 29 December 1980. He was convicted of the first offence on 19 January 1981 and the second offence on 14 January 1981. Section 63 of the Road Traffic Act provided for a hierarchy of penalties increasing from a first through to a fourth or subsequent offence. Both of the offences were treated as first offences. This was because at the time the 29 December 1980 offence was committed the appellant had not been convicted of the earlier offence.

27 Kennedy J referred to Farrington v Thomson [1959] VicRp 49; [1959] VR 286 in support of his conclusion that each of the offences in Carter v Denham was properly treated as a first offence. The legislation considered in Farrington bears some similarities to s 61A of the Act. In Farrington the relevant provision was s 177 of the Licensing Act 1928 (Vic) which provided that on conviction for a third offence the licensee would forfeit his licence. The facts in that case were that on 12 March 1955 the appellant had committed an offence against the section for which he was convicted on 10 May 1955. In the meantime on 30 April 1955 he had committed a further offence against the same section for which he was convicted on 15 June 1955. On 13 July 1956 he again offended and was convicted of that offence on 11 October 1956. At that time the question arose as to whether he had been convicted of a third offence within the meaning of the section. Smith J said:

It is clear I think that the second of the plaintiff's three convictions was not a conviction for a second offence within the meaning of the section: see Christie v Britnell [1895] VicLawRp 9; (1895) 21 VLR 71; Knox v Bible [1907] VicLawRp 87; [1907] VLR 485; O'Connor v Bini [1908] VicLawRp 79; [1908] VLR 567; The Queen v South Shields Licensing Justices [1911] 2 KB 1; Wright v Carcary (1920) 14 QJPR 46; and The Queen v McCraig (1936) 2 DLR 605 at 607. These cases show, I consider that in sections like 177 which impose increased penalties for second and subsequent offences an offence is not ordinarily to be considered a second offence unless at the time when it was committed the offender had a prior conviction. They therefore support the view that an offence is not a third offence unless the offender had two prior convictions when he committed it. They do not deal however with the question whether that is all that is necessary to constitute a third offence or whether it is necessary in addition that one of two prior convictions should have been a second offence within the meaning of the section.

It appears to me that section 177 does make this additional requirement. The decisions in the cases cited are derived from the rule of construction stated in Coke's Institutes volume 2 page 468 in language which as I read it makes that requirement. In commenting upon the words Et si tertio deliquerint in the Statute of Westminster Coke there says though this breach may seem to refer to the third offence 'yet cannot he be convicted of the third before he be convicted of the second nor of the second before he be convicted of the first and the second offence must be committed after the first conviction and the third after the second conviction and several judgments thereupon given for so it is to be understood in other acts of Parliament where there be degrees of punishment inflicted for the first, second and third offence etc' (288).

28 In Reid v Rowbottam [2005] NTSC 7 the principle was applied to a provision which provided that an offender who committed a violent offence was required to be sentenced to imprisonment if the offender had one or more times before been found guilty of a violent offence. Reference was made to a decision by Martin CJ in an earlier case involving a similar compulsory sentencing regime in the Northern Territory. In that case, Schluter v Trenerry [1997] NTSC 102; (1997) 6 NTLR 194, Martin CJ said that the clear parliamentary intention was that the offender should not be subject to compulsory imprisonment unless they had first been dealt with by a court on an earlier occasion. His Honour said:

The theory is that the appropriate lesson will have been learnt on the first or subsequent occasion upon which the offender is dealt with by the court, and he or she, having suffered the punishment, will then be deterred from offending in like manner again. The objective of deterrence, based upon escalating periods of actual imprisonment, would be open to grave doubt, if, when before a court for the first time, an offender would be liable to incarceration for a period in excess of that applicable for a first finding of guilt, simply because he or she then stood charged with more than one property offence which happened to be joined on separate informations. The justification for increasing the term of imprisonment on the second finding of guilt would be missing as the offender would not have been previously subjected to punishment aimed at deterrence. There would be no opportunity for the multiple offender, not previously charged, to become aware of the certainty of the severity of punishment for the proscribed criminal behaviour.

If it be right that imprisonment is a deterrent for offending, then it could not have been the intention of the parliament that an offender should feel the full weight of a mandatory term of compulsory imprisonment, unless the offender had first passed through the previous stage of punishment.

29 In Turbitt v Pryce (Unreported, NTSC, 21 January 1998), Kearney J considered an offence against the Domestic Violence Act 1992 (NT) which was comparable to s 61A of the Act. The relevant section in Turbitt provided that:

[W]here a person is found guilty of a second or subsequent offence ... the Court shall sentence the person to imprisonment for not less than 7 days but not more than 6 months (original emphasis).

30 In that case the offender had committed two offences in November 1996 but convictions for those offences did not occur until 10 October 1997. In the interim on 26 March 1997 the offender had committed another offence the conviction for which also occurred on 10 October 1997 shortly after the convictions for the other offences were recorded. Kearney J adopted the principle of construction explained by Burbury CJ in O'Hara v Harrington and also referred to the decision of Martin CJ in Schluter which he considered was wholly consistent with that principle.

31 The magistrate in this case made reference to the New South Wales case of Director of Public Prosecutions v Partridge [2009] NSWCCA 75; (2009) 74 NSWLR 62. That was a case that also applied the principle in the context of a hierarchy of penalties for road traffic offences. His Honour distinguished this case, and others dealing with 'traffic offences'. If he did so because he thought the principle was one peculiar to traffic offences and not of broader application then, with respect, he was wrong, as the authorities referred to above demonstrate. However, it is also possible that his Honour thought that the authorities could be distinguished because the wording of the statutory provision in this case was different to those considered in the authorities. It is necessary, therefore, to give consideration to the terms of s 61A of the Act.

32 Section 61A of the Act does differ from some of the provisions that have been considered in earlier decisions. One difference is that there is no hierarchy of penalties for first, second and third offences. One of the considerations in Carter v Denham was that an offender should have the opportunity to come before the court and face the penalty stipulated at each stage before being exposed to a higher penalty. If multiple convictions recorded on the same day have the effect of exposing an offender to the penalty for a third offence before he had been exposed to the penalty for a second offence one of the objectives of the penalty system would not be achieved. That consideration is inapplicable in the case of s 61A. There is no higher penalty for a second offence and a person in the appellant's position who was convicted of two offences on the one day does not miss any opportunity of being dealt with more leniently for a second offence if he is subsequently treated as having committed two prior offences when he offends again. However, if the objective is to expose offenders to a higher penalty only where they reoffend having on two successive occasions been convicted, then the objective would not be achieved if both of the prior convictions occurred on the same day.

33 The second possible point of distinction lies in the wording of the relevant provision. Section 61A does not expressly require that for an offender to be exposed to the presumption of imprisonment they must have been convicted of two earlier offences on two separate occasions. Unlike some provisions which refer to first, second, third and subsequent convictions, s 61A refers to the number of offences that have been committed by a person in the past. However, it is necessary that the offender has been both committed and convicted of at least two prior offences in the previous two years. This would suggest that s 61A is not merely concerned with repeated offending but with repeated offending in the face of previous convictions in a court. That is to say, that the offending conduct is made worse and justifies presumptive imprisonment because it has occurred despite convictions and penalties imposed by a court on at least two separate occasions.

34 The respondent relied on T v Bolitho [2010] WASC 30 as justifying a different conclusion. In that case Martin CJ considered whether a drug trafficker declaration under s 32A of the Misuse of Drugs Act 1981 (WA) had been properly made. Section 32A provides:

(a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more -

the court convicting the person of the serious drug offence first referred to in paragraph (a) ... shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.

35 An issue was raised in that case as to whether two convictions that had occurred on the same day should only be regarded as one for the purposes of s 32A. Martin CJ said:

The facts giving rise to the separate convictions in October 2006 were distinct. They were separate offences and they were separate convictions. The magistrate explained why the facts were different and why the appellant was properly charged and convicted separately of those offences without any issue arising under the principles against duplicity of charge or, more correctly I think, the principles relating to conviction estoppel.

Carter v Denham is plainly distinguishable. That was a case in which provisions of the Road Traffic Act 1974 (WA) fell to be construed. Specifically, those provisions related to a hierarchy of penalties available depending upon the number of times a person had been convicted of a particular offence under the Act. The relevant offence in that case was driving under the influence of alcohol. For the purposes of that regime, it was concluded that a person was not liable for the higher penalty unless they had already been convicted of the prior offence at the time of committing the subsequent offence. That is a principle that one can easily understand in the context of that legislation. However, in this case and in particular in the context of s 32A of the Act, all that is required is two prior convictions.

In the present case, the facts giving rise to the third offence occurred long after T had suffered his conviction of the two prior offences and therefore there is no prospect that it could be said that he was unaware of the liability to which he was exposed. Carter v Denham is properly distinguishable and the magistrate was correct to distinguish it as she did [23] [25].

36 It would appear that Martin CJ was not referred to all of the relevant authorities. In particular, he does not appear to have been directed to those decisions which were not referable to a stepped series of increasing penalties, but rather were dealing with exposure to a higher or different penalty that only became operative after a number of convictions had occurred: See Farrington v Thompson and Reid v Rowbottam. Furthermore, the wording of the provision in T v Bolitho was only to past convictions, not to the person having committed and been convicted of at least two prior offences. The different wording of s 61A tends to suggest that the concern is with the commission of offences and convictions as part of a repeated serious of events. Finally, it is important to take into account that s 61A is a provision that relates to sentences rather than confiscation of property. It profoundly affects the likelihood that in given circumstances an offender will be imprisoned. For these reasons I do not consider that T v Bolitho requires a conclusion that s 61A applied in the appellant's case.

37 The respondent also relies on the fact that s 61A was intended to increase penalties. This is said to be borne out by the Second Reading Speech of the Restraining Orders Amendment Bill 2011 (WA). In that speech the Attorney General said:

The government's firm commitment to get tough on crime, especially repeated crime, is in evidence in proposed new section 61A. It is often said that a restraining order is only as good as the system that backs it up. One aspect of the response to a breach of a restraining order that needs closer scrutiny is the penalty arrangements for persons who repeatedly breach them. To be honest, the government was shocked when information presented to me by the Department of the Attorney General showed that over 40 per cent of offenders who had breached their restraining orders for the fourth - that is to say, the fourth - time still received only a modest fine of around $200.

As a result, the government, through clause 15, intends to introduce the concept of penalty escalation for repeated breach of a restraining order, as is the case in New South Wales, Queensland, the Northern Territory and Tasmania. The clause essentially provides that when a person is convicted of a third breach of a restraining order, when the two previous convictions were within a specified time, the court should impose a term of imprisonment if the offender is an adult, or a term of detention if the offender is a juvenile. By virtue of subclause (6), this is not a mandatory requirement but, rather, a presumptive clause of imprisonment, unless the court believes the criteria in subclauses (6)(a) and (6)(b) are met. If this is the case, then subclause (7) requires the court to provide specific written reasons.

38 An intention to bring about an increase in penalties is not inconsistent with the interpretation of s 61A advanced by the appellant. Indeed, a scheme whereby an offender is exposed to presumptive imprisonment after successive offences and convictions might be thought to be wellfocused on those who persistence is deserving of condign punishment. Furthermore, if the intention was to exclude the longstanding principle referred to earlier it would be expected that this would have been expressly stated, either in the legislation itself or in the Second Reading Speech.

39 In my view, the principle derived from Lord Coke is applicable to s 61A of the Act. The fact that the section is not in identical terms to those under road traffic legislation that create a scale of increasing penalties is not material. The application of the principle does not depend on the precise words used: O'Hara v Harrington. What is material is the nature and effect of the provision.

40 The principle has been applied to cases where exposure to a higher penalty has been assumed to be based on the increased culpability of a person repeatedly reoffending after being convicted and punished. It is the defiance of warnings that is at the heart of such schemes. That means that s 61A is directed to those cases where there has been a sequence of the commission of a first offence, conviction for that offence, subsequent commission of a second offence, conviction for that offence and subsequent commission of a third offence. It is in those circumstances that repeated defiance arises.

41 It is certainly possible for parliament to enact a different scheme; that is, one that is not predicated on separate and several criminal acts and convictions. To achieve that end clear words of intendment would be required. That is because of the long held principle relating to provisions like s 61A and because of their punitive consequences. No such words of intendment exist in this case. Whatever may be thought of the rationale of the principle, consistency and fairness require that it not be departed from.

42 For those reasons the magistrate was in error to find that s 61A applied to the appellant. Because the appellant had been convicted on only one prior occasion and had not committed a second offence after being convicted of a first, he did not fall within the ambit of that section. That was a material error because it exposed the appellant to a presumptive prison sentence. The effect was to exclude other possible options other than in the exceptional circumstances provided for in s 61A(6).

43 Leave to appeal is granted in respect of this ground and the appeal must be allowed. This means that the appellant must be resentenced. The remaining grounds, as alternatives, do not need to be considered.

44 The context in which the previous offences and the present offence occurred was an apparently acrimonious separation and custody dispute. That does not of course excuse the breaches. There are many orders of this type that are in place because of a relationship breakdown. However it is fair to note that the appellant was the father of two children located at the house. He continued to care for his children and was pursuing proceedings in the Family Court to obtain access to them. This was not a situation where the appellant had no legitimate or positively motivated reasons for visiting the house. Clearly he should not have been there and in approaching the house he must have known he was breaching the order. But his breaches need to be seen in the particular context.

45 As regards the circumstances of the offending the magistrate placed significant emphasis on the time of the breach, namely 2.50 am. I agree that normally a breach occurring in the early hours of the morning may well indicate some attempt to avoid detection. However, I do not consider that such an inference should necessarily be drawn here. The appellant's explanation was that he was leaving to go fishing for several weeks at Shark Bay and wanted to say goodbye to his children before doing so. It seems to me at least open to conclude that he was making an early start for travel reasons. In any event the facts provided to the magistrate were brief and there was nothing in them to indicate that the appellant had been hiding or loitering in the area or had made any attempt to conceal his identity. Indeed the fact that he left two of his business cards in the letterbox is contrary to any such suggestion. Nor was there any possibility that he would not be apprehended given that he was confronted by a neighbour who clearly recognised him.

46 As to the appellant's personal circumstances, he was a mature man with no prior record other than the previous breaches. There was certainly no prior violent offending and no evidence that he had a violent disposition. He cooperated with the police and entered pleas of guilty both to the previous charges and the present charge at the earliest opportunity.

47 It is also relevant that the appellant had only appeared in court on one previous occasion in respect of breaches of the violence restraining order. It is true that he had been (mistakenly) warned on that occasion of the effect of s 61A if he reoffended. On the other hand the relatively small fines imposed on that occasion might well have failed to convey to the appellant the likelihood of imprisonment on the next occasion.

48 The fact that the appellant had offended within a short time of his previous offences needed to be viewed in the context of the nature and severity of those previous offences. It is a very large step from fines of $350 and $500 to a sentence of 8 months' imprisonment to be immediately served. The starkness of that step is made even more apparent by recalling that the appellant has never received any penalty for any offence more serious than a fine. He has never received any community based order or a suspended sentence.

49 It is also relevant to take into account that the appellant has been imprisoned since 16 October 2012. He did not seek bail in respect of this appeal. I am told that was because he did not wish to face the prospect of returning to prison in the event that his appeal failed. Accordingly he has now spent five months in prison and would be eligible for parole in any event. In these circumstances I consider that the appropriate alternative sentence is a community based order.

1. Leave to appeal granted on ground 1.
2. Appeal allowed.
3. Sentence of 8 months' imprisonment set aside.
4. In lieu thereof the appellant be sentenced to a community based order of 6 months with a programme requirement under s 64.