COSTELLO -v- BENNASAR [2012] WASC 406
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 406 | |
| 31/10/2012 | |||
| Case No: | SJA:1052/2012 | 22 OCTOBER 2012 | |
| Coram: | EM HEENAN J | 22/10/12 | |
| 9 | Judgment 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
- 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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Details
- AGLC
- 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.
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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