Roe v D'Costa
[2014] WASCA 118
•6 JUNE 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ROE -v- D'COSTA [2014] WASCA 118
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 20 NOVEMBER 2013
DELIVERED : 6 JUNE 2014
FILE NO/S: CACR 74 of 2013
BETWEEN: NICHOLAS GLENN ROE
Appellant
AND
MARK NOEL D'COSTA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HALL J
Citation :D'COSTA -v- ROE [2013] WASC 99
File No :SJA 1135 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)
Legislation:
Misuse of Drugs Act 1981 (WA), s 32A
Restraining Orders Act 1997 (WA), s 61A
Sentencing Act 1995 (WA), s 39(3)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr G T W Tannin SC
Respondent: Ms K J Farley
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: Legal Aid (WA)
Case(s) referred to in judgment(s):
Australian Crime Commission v Stoddart [2011] HCA 47; (2011) 244 CLR 554
Bahar v The Queen [2011] WASCA 249
Carter v Denham [1994] WAR 123
D'Costa v Roe [2013] WASC 99
Director of Public Prosecutions v Partridge [2009] NSWCCA 75; (2009) 74 NSWLR 62
Electrolux Home Products Pty Ltd v The Australian Workers Union [2004] HCA 40; (2004) 221 CLR 309
Farrington v Thomson [1959] VR 286
Lee v NSW Crime Commission [2013] HCA 39
Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290
Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
O'Hara v Harrington [1962] Tas SR 165
Oxenham v Connor [1976] WAR 118
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Skolnik [1982] 2 SCR 47
R v South Shields Licensing Justices [1911] 2 KB 1
Reid v Rowbottam (2005) 15 NTLR 1
Ryszawa v Samuels [1969] SASR 158
Schluter v Trenerry (1997) 6 NTLR 194
T v Bolitho [2010] WASC 30
The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Ltd [2008] NSWSC 936
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105
Turbitt v Pryce (Unreported, NTSC, 21 January 1998)
McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an appeal against the decision by Hall J in D'Costa v Roe [2013] WASC 99. The appeal concerns the proper construction of s 61A(2) of the Restraining Orders Act 1997 (WA) (ROA).
Background
The background circumstances are as follows. Sometime prior to 3 July 2012, the respondent was served with a violence restraining order (VRO) which protected his wife and their two children. The order required the respondent not to communicate with the protected persons or to approach within 50 m of the boundary of the wife's residence.
On 3 July 2012 and again on 11 July 2012, the respondent breached the VRO. On 3 July 2012, he sent a text message to his wife. On 11 July 2012, he knocked at the front door of his wife's house and then, remembering that the VRO was in place, left without further incident. He was then charged with two counts of breaching a VRO contrary to s 61(1) of the ROA.
On 13 July 2012, he pleaded guilty and was convicted of each of these charges in the Magistrates Court. He was fined $500 for the offence on 3 July 2012 and $350 for the offence on 11 July 2012: blue AB 39.
On 15 September 2012, the respondent again breached the VRO. At about 2.50 am that day, he went to the protected persons' residence and dropped two of his business cards into the letterbox. He was seen by a neighbour and an altercation followed between the two of them. Eventually, the respondent left. Later, when he was spoken to by police, the respondent said that he went to the house to say goodbye to his children before going away for work for a relatively extended time.
On 9 October 2012, the respondent pleaded guilty and was convicted of this offence in the Magistrates Court. The learned magistrate adjourned the sentencing of the respondent to 16 October 2012 because a question arose as to whether the magistrate was required to sentence the respondent in accordance with s 61A(2), (5) and (6) of the ROA. In general terms, these provide that when an offender is sentenced for an offence of breaching a VRO, having committed and been convicted of at least two prior offences of breaching a VRO in the two years preceding
that conviction, the offender must be imprisoned unless it would be clearly unjust to do so and the person is unlikely to be a threat to the safety of any protected persons or the community generally.
It was submitted to the learned magistrate on behalf of the respondent that the two offences for which he had been convicted on 13 July 2012 were, for the purposes of s 61A(2)(b), one offence and therefore the respondent was not liable to the presumptive penalty of imprisonment.
The learned magistrate held against the respondent. The learned magistrate said that he regarded the convictions recorded on 13 July 2012 as two convictions. Accordingly, the respondent was liable to the presumptive penalty of imprisonment. The learned magistrate said that the dominant sentencing consideration was personal deterrence, having regard to the fact that the respondent committed the third offence 'only some two months after the first two [offences]'. He imposed a sentence of 8 months' immediate imprisonment (ts 9 16/10/12).
The respondent appealed against the sentence to a single judge of the Supreme Court. His grounds of appeal, as amended, were 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) [sic: 61A(2)(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.
On 22 March 2013 Hall J upheld ground 1, allowed the appeal and resentenced the respondent to a 6 month community based order with a program requirement: D'Costa v Roe [50].
The ground of appeal
In this court, the appellant relies on a single ground of appeal, for which leave to appeal has been granted. The ground reads:
1.The Court erred in law by misconstruing the clear statutory language of section 61A of the Restraining Orders Act 1997 (WA) (RO Act) in failing to find that the Respondent was a person to whom section 61A applied.
Particulars
a.The Respondent committed:
i.His first offence contrary to section 61(1) of the RO Act on 3 July 2012;
ii.His second offence contrary to section 61(1) of the RO Act on 11 July 2012;
iii.His third offence contrary to section 61(1) of the RO Act on 15 September 2012.
b.The Respondent was convicted of the offences referred to at (a)(i) and (ii) above on 13 July 2012.
c.The Respondent pleaded guilty to the offence referred to at (a)(iii) above on 9 October 2012 and was sentenced on 16 October 2012.
d.the offence referred to at (a)(iii) was a 'relevant offence' within the meaning of section 61A(2)(a) of the RO Act.
e.When the Respondent was sentenced by the Magistrate on 16 October 2012, for the offence referred to at (a)(iii) above, he had 'committed, and been convicted of, at least 2 offences under section 61(1) or (2a) within the period of 2 years before [his] conviction [for that] relevant offence' within the meaning of section 61A(2)(b) of the RO Act.
Should this court hear the appeal?
By the time the respondent's appeal had been allowed, he had served most of the sentence of imprisonment that had been imposed upon him. Accordingly, the appellant does not now challenge the community based order imposed by Hall J. To this extent, the appellant acknowledges that the appeal is moot. The appellant has brought this appeal 'to correct a point of principle relevant to the broad public interest'.
Generally, this court does not entertain appeals where there is no longer a controversy between the parties and where all that is being sought, in effect, is an advisory opinion. However, the court retains a discretion to determine what are essentially moot points of law. Matters relevant to the exercise of this discretion include whether the decision under appeal has ramifications which extend beyond the facts of the case in question and if it is in the public interest to resolve the point. It is not disputed that there is a public interest in resolving the proper interpretation of s 61A(2) of the ROA. In addition, there may be a conflict between the decision by Hall J and a decision by Martin CJ in T v Bolitho [2010] WASC 30. In these circumstances, it is appropriate to exercise the discretion in favour of hearing and determining the appeal: Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54.
The relevant statutory framework
A person who is bound by a VRO and who breaches it commits an offence contrary to s 61(1) of the ROA and is liable to a fine of $6,000 or imprisonment for 2 years or both.
Section 61A of the ROA was inserted into the Act by s 15 of the Restraining Orders Amendment Act 2011 (WA) and commenced operation on 5 May 2012. The section relevantly provides;
61A. Penalty for repeated breach of restraining order
(1)In this section -
conviction -
(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.
(2)This section applies if a person -
(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.
…
(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.
In the Attorney General's second reading speech in respect of the clause in the Restraining Orders Amendment Bill 2011, which became s 61A of the Act, the then Attorney General, Mr Christian Porter, having stated that the focus on the new provision was to prevent repeated breaches of VROs, went on to state:
The government, through cl 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 [sic] 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. (Hansard, 22 June 2011, 4622).
Hall J's decision
Hall J held that a literal reading of s 61A(2)(b) supported the learned magistrate's decision. However, his Honour found that s 61A(2)(b) should be construed according to the principle of statutory interpretation derived from Sir Edward Coke's Institutes about the counting of prior convictions. Thus the expression in s 61A(2)(b) 'has committed, and been convicted of, at least 2 offences' should be understood to mean that the offender must be convicted of an offence on at least two prior occasions. Although his Honour recognised that Parliament may abrogate or modify this principle, in his opinion the language used in the subsection did not clearly achieve that result. As the appellant had only been convicted on one prior occasion (on 13 July 2012, albeit for two offences), the presumptive penalty of imprisonment was not available to the learned magistrate. His Honour decided, having regard to all of the circumstances, particularly the time the appellant had spent in custody, that a community based order was the appropriate penalty.
The appellant's submissions in this appeal
The appellant recognised the existence of the principle derived from Coke's writings. However, it was submitted that the principle is only to be taken into account once the language of the statute has been considered (AB 12). The appellant submitted that the plain language in s 61A(2)(b) supported the learned magistrate's decision and that there was no room for the application of Coke's principle. Moreover, it was said, Coke's principle had been applied to statutes which involved a 'second' or 'subsequent' offence and thus a sequence. The appellant contended that s 61A(2) did not involve a sequence; rather, it involved a sum of convictions. Consequently, Coke's principle did not apply.
The respondent's submissions in the appeal
The respondent submitted, in essence, that Hall J's decision was correct for the reasons that he gave.
The construction of statutes and the role of presumptions
The duty of a court when construing a statute was described by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78] in these terms:
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
The canons of construction referred to by their Honours include legal presumptions. These presumptions are judge‑made and are assumed by the courts to be known to, and taken for granted by, Parliament. They are general in their application and prevail unless Parliament speaks by words or implication to the contrary. Presumptions thus provide a prima facie answer to a question of statutory construction before going to the statutory words and context: Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100 [52] (McLure P, with whom Martin CJ and I agreed). The appellant's submission that legal presumptions are taken into account after the statutory text has been considered is incorrect.
A well‑recognised legal presumption is that Parliament does not intend to alter common law rights, doctrines or principles. The strength of this presumption varies according to whether the common law right, doctrine or principle under consideration is regarded as fundamental or has some lesser status. The more fundamental the right, doctrine or principle, the clearer Parliament's intention must be to abrogate it: Bahar v The Queen [51]; Pearce and Geddes, Statutory Interpretation in Australia (7th ed) par 5.2 to par 5.4.
The question of whether a right, doctrine or principle is fundamental is not without complication. See Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 [28] (McHugh J); Electrolux Home Products Pty Ltd v The Australian Workers Union [2004] HCA 40; (2004) 221 CLR 309 [19] (Gleeson CJ); and Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [43] (French CJ). Nevertheless, whether rights, doctrines and principles are fundamental is important. See, for example, Australian Crime Commission v Stoddart [2011] HCA 47; (2011) 244 CLR 554 [182] (Crennan, Kiefel & Bell JJ) and Lee v NSW Crime Commission [2013] HCA 39 [309] (Gageler & Keane JJ).
Sir Edward Coke's principle
The particular common law principle in play in this case is the one referred to in the proceedings below and derived from the extrajudicial writing of Sir Edward Coke. Coke, in the second of his Institutes of the Laws of England (1634), wrote:
Yet cannot he be convicted of the third [offence] 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 &c. there must be several convictions, that is to say, judgments given upon legal proceeding for every several offence, for it appears to be no offence until judgment by proceeding of law be given against him.
The essence of Coke's principle of statutory interpretation is that before a person is subject to an increased penalty for a second or subsequent offence, that person must have both committed and been convicted of the previous offence or offences and those offences and convictions must have occurred on separate days. The apparent rationale behind the principle is that, before an offender is exposed to a higher penalty for repeat offending, he or she must be lawfully convicted of the prior offending and properly warned of the consequences of such behaviour.
Thus, using Coke's example, before a person is to be subject to a more severe statutory penalty for a third offence, he or she must have committed and been convicted of a first offence, then committed and been convicted of a second offence and, after that, commit and be convicted of the third offence.
It is clear enough that although Coke was writing about the Second Statute of Westminster, he regarded the principle he propounded as applying more generally to 'other acts of parliament' of this kind.
Coke's principle has been recognised and consistently applied on many occasions in various courts in Australia and elsewhere. Hall J referred to a number of the Australian cases and discussed some of them, including Ryszawa v Samuels [1969] SASR 158, O'Hara v Harrington [1962] Tas SR 165, Farrington v Thomson [1959] VR 286, Reid v Rowbottam (2005) 15 NTLR 1, Schluter v Trenerry (1997) 6 NTLR 194, Turbitt v Pryce (Unreported, NTSC, 21 January 1998) and Director of Public Prosecutions v Partridge [2009] NSWCCA 75; (2009) 74 NSWLR 62. In Western Australia, the principle has been applied by Kennedy J in Carter v Denham [1984] WAR 123 and was recognised by Burt J (as he then was) in Oxenham v Connor [1976] WAR 118.
In Canada, the principle has been applied in a number of cases decided by provincial courts of appeal and by the Supreme Court of Canada in R v Skolnik [1982] 2 SCR 47. In England, the principle was referred to with approval in R v South Shields Licensing Justices [1911] 2 KB 1, 8.
The cases deal with the sentencing of repeat offenders. In them, the statutory language varies. The expressions which are considered include 'subsequent offence', 'second [or third] offence', 'second or subsequent offence', 'one or more times before … been found guilty' and 'once before been found guilty'.
What emerges from an analysis of the cases is the willingness of courts to apply Coke's principle to read down the literal meaning of the words used in the statutes in question. As Burbury CJ put it in his often quoted dictum in O'Hara v Harrington (169):
This three century old canon of construction of penal provisions of this kind is broadly based on principle and does not depend upon the precise language used in a statute. It ought not to be excluded unless the legislature has plainly said so.
Although Coke's principle cannot be classed as a fundamental common law principle on par with, say, habeas corpus, and is a principle of some lesser status, it is nevertheless sufficiently strong to require clear and unambiguous language or implication to abrogate its operation.
In my opinion, s 61A of the ROA is a provision to which Coke's principle applies. It is self‑evidently a penal provision directed towards repeat offenders. Although no different maximum penalty applies for a repeat offender who breaches a VRO, an offender who comes within the ambit of s 61A(2) is subject to a presumptive penalty of imprisonment. He or she is more likely to be sentenced to a term of imprisonment than someone who does not come within the ambit of the subsection. In this sense, a repeat offender is liable to be sentenced to a more severe penalty.
Unless Coke's principle has been abrogated, Hall J's construction of s 61A should be accepted. The question that remains is whether Parliament has abrogated Coke's principle by s 61A of the ROA. The answer to this question is free of authority. While Queensland, Tasmania, Victoria and the Northern Territory have passed legislation analogous to the ROA with respect to repeat offenders (see the Domestic and Family Violence Protection Act 2012 (Qld), s 177; the Domestic and Family Violence Act 2007 (NT), s 121; the Family Violence Act 2004 (Tas), s 35 and the Family Violence Protection Act 2008 (Vic), s 125A), the point raised in this case has not yet been decided in those jurisdictions.
Has Coke's principle been abrogated?
The first point to be made is an obvious one. The statutory language in s 61A of the ROA does not expressly abrogate the principle. That is not a complete answer to the question I have posed because the principle can, of course, be abrogated by clear implication. However, it is a plainly relevant consideration. If Parliament had intended to exclude Coke's principle, it did not say so in terms. It could easily have done so: see, for example, The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Ltd [2008] NSWSC 936.
The next point concerns the literal reading of s 61A(2). The appellant's principal submission is that a literal reading of the provision supports its case. Yet there is a striking aspect to the literal reading of s 61A(2). The threshold offences in s 61A(2)(b) must be committed and be the subject of convictions within a two‑year period prior to the offender's conviction for the relevant offence. But s 61A(2)(a) is silent about the commission of the relevant offence and when it must be committed. Read literally, the relevant offence may have been committed prior to the offences referred to in s 61A(2)(b) or outside the two‑year period. Indeed, a relevant offence may be a first offence in time.
Senior counsel for the appellant, when confronted with this point in oral argument, correctly accepted that there was, by implication, in s 61A(2) a sequence of offences in that the relevant offence in s 61A(2)(a) must be committed after the commission of the threshold offences in s 61A(2)(b). Senior counsel accepted that the basis for the implication was 'the application of the maxim' (appeal ts 14), the 'maxim' being Coke's principle. However, senior counsel submitted that although the principle was not excluded by s 61A(2)(a), it was excluded by s 61A(2)(b) (appeal ts 14 ‑ 15). I understand senior counsel's submission to be that Coke's principle is displaced to the extent that the 'at least 2 offences' do not have to have been committed and the subject of convictions on different days. I am unable to accept this part of senior counsel's submission.
Once it is accepted that s 61A(2) involves a sequence and Parliament did not intend to exclude the operation of Coke's principle in s 61A(2)(a) it becomes very difficult to accept that Parliament did intend to exclude the operation of the principle in s 61A(2)(b), at least without a very clear and unambiguous indication by Parliament to that effect.
It is arguable that such an indication might be in the form of s 61A(6)(a), which provides that imprisonment does not have to be imposed if it would be 'clearly unjust' to do so. It could be said that if a relevant offence was committed before the threshold offences, it would be 'clearly unjust' for a court to impose a term of imprisonment pursuant to s 61A(5). While that might be so, I do not regard s 61A(6)(a) as amounting to a sufficiently clear and unambiguous abrogation of Coke's principle.
I have reached the conclusion that Coke's principle has not been clearly abrogated by Parliament. Having regard to the principle, s 61A(2) should be construed so that:
(a)the relevant offence in s 61A(2)(a) must be committed after the offender has committed and after he or she has been convicted of the threshold offences in s 61A(2)(b); and
(b)the 'at least two offences' in s 61A(2)(b) must be, within the two year period prior to the conviction for the relevant offence, committed on separate days and the subject of convictions on separate days.
T v Bolitho
An argument raised in the appellant's written submissions was that this court should adopt Martin CJ's approach in the single judge decision of T v Bolitho. It was asserted that there was nothing in the present case which materially distinguishes it from T v Bolitho.
The issue in T v Bolitho was whether a magistrate had correctly declared the appellant a drug trafficker pursuant to s 32A of the Misuse of Drugs Act 1981 (WA) (MDA). Relevantly, that section provides:
32A. Drug trafficking
(1)If a person is convicted of -
(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 -
(i)serious drug offences; or
…
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.
A serious drug offence is defined in s 32A(3) of the MDA to mean, inter alia, a crime under s 6(1) and s 7(1) of the MDA.
The appellant in that case was convicted in a Magistrates Court of a serious drug offence, being an offence contrary to s 6(1) of the MDA. Prior to that, he had, on three separate occasions in the preceding 10 years, been convicted of a number of drug offences. On only one of those occasions was the appellant convicted of serious drug offences, on 1 October 2006. On that day he was convicted of an offence contrary to s 6(1) of the MDA and another under s 7(1) of the MDA. Thus on the one day he was convicted of two serious drug offences.
An application was made to have the appellant declared a serious drug trafficker based on the two serious drug offences for which he was convicted on 1 October 2006. The appellant opposed the making of the declaration. One of a number of arguments put to the magistrate opposing the making of the declaration was that the convictions on 1 October 2006 should be considered to be only one conviction. That argument was rejected by the learned magistrate.
One of the grounds of appeal to Martin CJ, ground 2, asserted that the two convictions on 1 October 2006 should be treated as one conviction.
Martin CJ dealt with this ground shortly. He said:
I will deal firstly with ground 2 because it seems to me that that ground is easily disposed of for the reasons given by the magistrate. 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.
There is no substance in ground 2 and it should be dismissed [23] ‑ [26].
In dealing with T v Bolitho, Hall J said:
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 [36].
With respect to his Honour, I do not agree with all that Hall J said on this point. In particular, while Martin CJ was apparently not referred to all of the relevant authorities, he was referred to Carter v Denham. In that case, many of those authorities are referred to. It seems to me that Martin CJ would not only have been aware of Coke's principle, but that he was also aware of the way in which it had been applied in other cases. However, I do agree with Hall J that an important distinguishing feature of T v Bolitho is that it deals with, in essence, the confiscation of property rather than the sentencing of an offender. The making of a drug trafficker declaration is not a sentence. See Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [55]. Coke's principle, it appears to me, has always been applied in respect of sentences and not, according to my research, beyond that. T v Bolitho is distinguishable from the present case.
Conclusion
Section 61A(2) of the ROA should be construed having regard to Coke's principle. Parliament has not clearly abrogated that principle. In my opinion, s 61A(2) requires that the relevant offence in s 62A(2)(a) be committed after the offender has committed and after he or she has been convicted of the threshold offences referred to in s 61A(2)(b) and that the 'at least 2 offences' referred to in s 61A(2)(b) must be, within the two year period prior to the offender's conviction for the relevant offence, committed on separate days and the subject of convictions on separate days. This did not occur in the present case. Accordingly, s 61A(2) was not enlivened and the respondent was not subject to the presumptive penalty of imprisonment. No material error has been demonstrated on Hall J's part. The ground of appeal has not been made out. It follows that the appeal must be dismissed.
9