Four out of five domestic abusers convicted of breaching a violence restraining order three times or more have escaped detention within the first five months of the new law coming into force. Source: PerthNow
A MAN jailed under WA's tough domestic violence laws has been freed on a technicality.
Mark Noel D'Costa was sentenced to eight months jail last year for breaching a violence restraining order three times, but this week won an appeal against the decision after successfully arguing two of his breaches should have been treated as one.
While the father-of-two never disputed the breaches, he maintained they should have been treated as one because he was convicted for both of them on the same day.
Anti-domestic violence campaigners say the decision sends out the wrong message to perpetrators as well as victims and have questioned the strength of the three-strikes law.
Mr D'Costa was banned from communicating with his wife and from coming within 50 metres of her home under the conditions of the VRO. Though he was allowed contact with his two sons.
On July 3, the fishing boat worker breached the order by texting his wife. Then on July 11, he breached it again by turning up at the house and knocking on the front door.
He was subsequently charged for both breaches and appeared in court on July 13.
After pleading guilty, he was fined $500 for the first offence and $350 for the second offence.
Two months later Mr D'Costa breached the VRO again this time by visiting the house in the middle of night to leave two business cards in the letterbox. A neighbour saw him and an altercation broke out. He then fled the scene but was caught by police a short time later.
During his hearing on October 9, the father-of-two said he went to the house at 2.50am to leave his contact details for his sons because he was heading to Shark Bay for four weeks for work.
But Magistrate Brian Gluestein said that while Mr D'Costa was a man of "previous good character'' he was warned during his previous court appearance that another breach could result in a jail sentence.
He then ordered he serve eight months in prison.
But this week Supreme Court judge Justice Stephen Hall overturned the sentence saying Magistrate Gluestein was wrong in treating the two previous breaches as two convictions and ordered Mr D'Costa's sentence be set aside. He resentenced him to a six month community based order adding the 42-year-old had pleaded guilty and had already served five months.
He also said the fact Mr D'Costa had only received fines for his previous breaches, meant eight months in jail was a "very large step'' and that a community based order would have been more appropriate.
But Angela Hartwig, from the Women's Council for Domestic and Family Violence, said the decision sent out the wrong message.
"It's very disappointing,'' she said. ``They are two separate actions. He (the offender) would have been aware the first time that it was a breach. He then chose to continue that behaviour.
"It sends this message out to other perpetrators that they can do this. And it sets a precedent that is in contradiction to the legislation and its intent.
"It's a pretty poor response.
"That second breach could have been one that might have been fatal and we can't afford to treat them lightly.''
Last year The Sunday Times revealed that four out of five domestic abusers convicted of breaching a violence restraining order three times or more escaped detention within the first five months of the law being in place.
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