What does “3 strikes and you are out” mean in relation to a VRO in Western Australia?

The Law

In its decision in Roe v D’Costa [2014] WASCA 118 the  WA Supreme Court of Appeal provided clarification on how section 61A of the Restraining Orders Act 1997 (WA) should be interpreted in relation to a VRO in Western Australia. Section 61A states as follows:

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.

     (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.

     (8)     In subsection (7) — 

               written reasons includes reasons that are — 

(a)     given orally and subsequently transcribed; or

(b)     given orally but also recorded electronically in a format that enables them to be subsequently transcribed.

[Section 61A inserted by No. 32 of 2011 s. 15; amended by No. 20 of 2013 s. 118.]

The Facts

The Appellant had committed breaches of a VRO on 3 July and 11 July 2012. Significantly however, on 13 July 2012 the Appellant was convicted on both breaches. Before the issue of mandatory imprisonment can be considered under what is popularly known as the “three strikes” rule, section 61A(2)(b) requires as a pre-condition that the offender has:

“Committed, and been convicted of, at least two offences…”

Before the Magistrates Court the lawyer for the Appellant argued that as the offences of 3 and 13 July 2012 resulted in a single conviction on 13 July 2012 the requirement of 2 prior convictions had not been made out. The Magistrate rejected that submission and sentenced the Appellant to 8 months immediate imprisonment.

The Decision

The Court of appeal ultimately ruled in the Appellant’s favour deciding that the conviction for the two breaches on 13 July 2012 was one conviction and therefore the Appellant had not met the pre-condition of 2 previous convictions.

At paragraph 52 Mazza JA (with whom McLure P and Buss JA agreed)  concluded:

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 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.

Therefore, the proper interpretation of the phrase ‘at least 2 offences’ referred to in s 61A(20(b) means offences committed on separate days and the subject of convictions on separate days.

At the time of writing Parliament has not amended s 61A(20(b) of the Restraining Orders Act.