D'COSTA -v- ROE [2013] WASC 99

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 99
Case No:	SJA:1135/2012	Heard:	15 MARCH 2013
Coram:	HALL J	Delivered:	22/03/13
No of pages:	18	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed Sentence of imprisonment set aside and appellant resentenced
Category:	A
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Parties:	MARK NOEL D'COSTA NICHOLAS GLENN ROE
Catchwords:	Criminal law Breach of restraining order Whether presumption of imprisonment for third offence applicable where two previous convictions occurred on the same day Interpretation of s 61A Restraining Orders Act 1997 (WA)
Legislation:	Restraining Orders Act 1997 (WA), s 61, s 61A
Case References:	Carter v Denham [1984] WAR 123 Clark v Glover (1992) 58 SASR 571 Director of Public Prosecutions v Partridge [2009] NSWCCA 75; (2009) 74 NSWLR 62 Farrington v Thomson [1959] VR 286 O'Hara v Harrington [1962] Tas SR 165 Police v Nowak [2000] SASC 82; (2000) 76 SASR 551 Reid v Rowbottam [2005] NTSC 7 Ryszawa v Samuels [1969] SASR 158 Samuels v Mackenzie (1979) 23 SASR 595 Schluter v Trenerry (1997) 6 NTLR 194 T v Bolitho [2010] WASC 30 Turbitt v Pryce (Unreported, NTSC, 21 January 1998)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : D'COSTA -v- ROE [2013] WASC 99 CORAM : HALL J HEARD : 15 MARCH 2013 DELIVERED : 22 MARCH 2013 FILE NO/S : SJA 1135 of 2012 BETWEEN : MARK NOEL D'COSTA

Appellant

AND

NICHOLAS GLENN ROE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE B C GLUESTEIN

File No : JO 44377 of 2012

Catchwords:

Criminal law - Breach of restraining order - Whether presumption of imprisonment for third offence applicable where two previous convictions occurred on the same day - Interpretation of s 61A Restraining Orders Act 1997 (WA)

(Page 2)

Legislation:

Restraining Orders Act 1997 (WA), s 61, s 61A

Result:

Leave to appeal granted

Appeal allowed
Sentence of imprisonment set aside and appellant resentenced

Category: A

Representation:

Counsel:

Appellant : Ms K J Farley

Respondent : Ms R Young

Solicitors:

Appellant : Legal Aid (WA)

Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Carter v Denham [1984] WAR 123
Clark v Glover (1992) 58 SASR 571
Director of Public Prosecutions v Partridge [2009] NSWCCA 75; (2009) 74 NSWLR 62
Farrington v Thomson [1959] VR 286
O'Hara v Harrington [1962] Tas SR 165
Police v Nowak [2000] SASC 82; (2000) 76 SASR 551
Reid v Rowbottam [2005] NTSC 7
Ryszawa v Samuels [1969] SASR 158
Samuels v Mackenzie (1979) 23 SASR 595
Schluter v Trenerry (1997) 6 NTLR 194
T v Bolitho [2010] WASC 30
Turbitt v Pryce (Unreported, NTSC, 21 January 1998)

(Page 3)

HALL J

Introduction

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading D'Costa v Roe

Details

AGLC: D'COSTA -v- ROWE [2013] WASC 99
Case: [2013] WASC 99
Decision Date: 22 MARCH 2013

CaseChat Overview and Summary

In D'Costa v Roe, the appellant faced charges stemming from a breach of a restraining order. The matter was heard in the Supreme Court of Western Australia, where the appellant contested the legality of the presumption of imprisonment mandated by section 61A of the Restraining Orders Act 1997 (WA). The appellant argued that the presumption should not apply to him because the two previous convictions that triggered the mandatory imprisonment were both issued on the same day. The State sought to enforce the presumption, contending that the statutory language did not exclude situations where multiple breaches occurred simultaneously.

The court was tasked with interpreting the statutory language of section 61A, focusing on whether the plain meaning of the words indicated that the presumption of imprisonment should apply irrespective of the timing of the previous convictions. Additionally, the court had to consider the legislative intent behind the mandatory imprisonment provision and whether it aligned with the principle of proportionality in sentencing. The appellant's legal team submitted that applying the presumption in such circumstances would contravene the fundamental principles of justice and fairness.

The court found in favour of the appellant, determining that the plain language of section 61A did not explicitly include scenarios where multiple breaches occurred on the same day. The court held that the legislative intent behind the mandatory imprisonment provision was to deter repeated breaches, not to impose disproportionate penalties. By setting aside the appellant's sentence of imprisonment, the court allowed the appeal and ordered that the appellant be resentenced, ensuring that the outcome was consistent with the principles of justice and fairness.

Orders

Orders of the court

Leave to appeal granted

Appeal allowed

Sentence of imprisonment set aside and appellant resentenced

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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