Costello v Bennasar

Case [2012] WASC 406


COSTELLO -v- BENNASAR [2012] WASC 406



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2012] WASC 406
31/10/2012
Case No:SJA:1052/201222 OCTOBER 2012
Coram:EM HEENAN J22/10/12
9Judgment Part:1 of 1
Result: Extension of time granted by consent
Leave to adduce affidavit of further evidence granted by consent
Leave to appeal granted
Appeal allowed
Spent conviction made
B
PDF Version
Parties:DARCY JAMES KELSO COSTELLO
JAMES RICHARD BENNASAR

Catchwords:

Application for leave to appeal
Application for extension of time
Conviction for disorderly conduct
Failure to make a spent conviction order
Endorsed plea of guilty
Applicant not attending Magistrates Court
Application for leave to adduce further evidence
Minor offence
Previous good character
Potential for adverse consequences if no spent conviction order made
No error by sentencing magistrate
Miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)

Case References:

A v Esposito [2011] WASC 198
A v Staples [2007] WASC 36
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Caseley v Zampognia [2006] WASC 259
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Papas v Godwin [2010] WASC 226
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Redding v Robinson [2009] WASC 403
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Taylor v McLernon [2009] WASC 211


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CRIMINAL
CITATION : COSTELLO -v- BENNASAR [2012] WASC 406 CORAM : EM HEENAN J HEARD : 22 OCTOBER 2012 DELIVERED : 22 OCTOBER 2012 PUBLISHED : 31 OCTOBER 2012 FILE NO/S : SJA 1052 of 2012 BETWEEN : DARCY JAMES KELSO COSTELLO
    Appellant

    AND

    JAMES RICHARD BENNASAR
    Respondent


ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P M HEANEY

File No : PE 17531 of 2012


Catchwords:

Application for leave to appeal - Application for extension of time - Conviction for disorderly conduct - Failure to make a spent conviction order - Endorsed plea of guilty - Applicant not attending Magistrates Court - Application for leave to adduce further evidence - Minor offence - Previous good character - Potential



(Page 2)

for adverse consequences if no spent conviction order made - No error by sentencing magistrate - Miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA)


Sentencing Act 1995 (WA)

Result:

Extension of time granted by consent


Leave to adduce affidavit of further evidence granted by consent
Leave to appeal granted
Appeal allowed
Spent conviction made

Category: B


Representation:

Counsel:


    Appellant : Mr S D Freitag
    Respondent : Ms J N Harman

Solicitors:

    Appellant : D G Price & Co
    Respondent : State Solicitor for Western Australia



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

A v Esposito [2011] WASC 198
A v Staples [2007] WASC 36
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Caseley v Zampognia [2006] WASC 259
Colwell v The State of Western Australia [No 2]

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COSTELLO -v- BENNASAR [2012] WASC 406
Case
[2012] WASC 406
Decision Date

CaseChat Overview and Summary

In the case of Costello v Bennasar, the applicant, Mr Costello, sought leave to appeal against a decision of the Magistrates Court of Victoria. Mr Costello had been convicted of disorderly conduct and his plea of guilty was endorsed. He did not attend the court proceedings, and the sentencing magistrate did not make a spent conviction order. Mr Costello argued that his failure to appear in court was due to a genuine misunderstanding and that he had a previous good character. He submitted that without a spent conviction order, he faced potential adverse consequences in the future.

The legal issues before the court included whether the sentencing magistrate erred in not making a spent conviction order, whether there was a miscarriage of justice, and whether Mr Costello should be granted leave to adduce further evidence and appeal against the conviction. The court had to consider the circumstances of the case, the principles of fairness and justice, and the potential impact on the applicant if the conviction remained unspent.

The court found that there was no error in the sentencing magistrate's decision, as the applicant had failed to attend court and had not demonstrated exceptional circumstances that would warrant a spent conviction order. However, the court acknowledged the potential adverse consequences for the applicant if the conviction remained unspent and granted leave to adduce further evidence and appeal. The court allowed the appeal and made the conviction spent, recognising the importance of considering the applicant's previous good character and the minor nature of the offence. The court's decision highlighted the need for fairness and proportionality in the criminal justice system.

Orders

Orders of the court

Extension of time granted by consent

Leave to adduce affidavit of further evidence granted by consent

Leave to appeal granted

Appeal allowed

Spent conviction made

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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