Leister v Ferraro - [2021] WASC 400

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   LEISTER -v- FERRARO [2021] WASC 400
CORAM:   ALLANSON J
HEARD:   9 NOVEMBER 2021
DELIVERED          :   18 NOVEMBER 2021
FILE NO/S:   SJA 1053 of 2021
BETWEEN:   FRANK HARLEY ADAM LEISTER
Appellant
AND
JOSHUA JAMES FERRARO
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DE VRIES
File Number            :   PE 28788 of 2021

Catchwords:

Criminal law - Appeal against conviction and sentence - Breach of conduct agreement order - Where endorsed plea of guilty entered - Whether magistrate had regard to material attached to endorsed plea - Criminal Procedure Act 2004, s 51 - Whether accused's version of facts materially different - Whether no substantial miscarriage of justice - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 14
Criminal Procedure Act 2004 (WA), s 33, s 51, s 59 and s 129
Restraining Orders Act 1997 (WA), s 10H, s 61
Sentencing Act 1995 (WA), s 45

Result:

Leave to appeal granted on grounds 1 and 3
Appeal allowed on grounds 1 and 3
Conviction and sentence set aside
Matter returned to Magistrate's Court

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	C A Payne

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469
Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454
Henning v Khaw [2013] WASC 270
Liberti v The Queen (1991) 55 A Crim R 120
Meissner v The Queen (1995) 184 CLR 132
Snook v The State of Western Australia [No 2] [2015] WASCA 29
WS v Gardin [2015] WASC 97

ALLANSON J:

Introduction

Mr Leister was convicted on 27 July 2021 of a breach of a conduct agreement order. He did not appear at the hearing before the magistrate but sent an endorsed plea of guilty to the court. He was fined $250 and ordered to pay costs.
On 19 August 2021, Mr Leister filed a notice of appeal containing three grounds of appeal:
(1)that the matter was decided without a complete investigation of the facts and circumstances;
(2) the sentence has an unreasonable impact on the appellant and that a conviction should not have been recorded; and
(3) the magistrate erred in failing to take account of information provided by the appellant in his endorsed plea.

The charge

The prosecution notice alleged that Mr Leister breached a conduct agreement order, contrary to s 61 of the Restraining Orders Act 1997 (WA).
The breach related to a conduct agreement order made pursuant to s 10H of the Restraining Orders Act. Such orders are made by agreement, and do not constitute an admission by the respondent of matters alleged against them. A conduct agreement order is not a family violence restraining order but is taken to be one for the purposes of the Act.[1]
[1] Restraining Orders Act 1997, s 10H(3).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leister v Ferraro

Details

AGLC: Leister v Ferraro [2021] WASC 400
Case: [2021] WASC 400
Decision Date

CaseChat Overview and Summary

Leister v Ferraro is an appeal against a conviction and sentence imposed by a magistrate in the Magistrates Court of Western Australia. The appellant, Frank Harley Adam Leister, was convicted of breaching a conduct agreement order, contrary to s 61 of the Restraining Orders Act 1997 (WA). The respondent, Joshua James Ferraro, was represented by the State Solicitor's Office. The appeal raises three grounds: whether the matter was decided without a complete investigation of the facts and circumstances, whether the sentence has an unreasonable impact on the appellant, and whether the magistrate erred in failing to take account of information provided by the appellant in his endorsed plea.

The court considered the operation of s 51 of the Criminal Procedure Act 2004 (WA) in the context of an endorsed plea of guilty. The court found that the magistrate did not have regard to the material attached to the appellant's endorsed plea, which was a departure from the prescribed procedure for convicting and sentencing on a written plea of guilty. The failure to consider the material provided by the appellant was a serious departure from the processes prescribed by the Criminal Procedure Act and a breach of natural justice. The court held that there was a substantial miscarriage of justice, and the appeal was allowed on grounds 1 and 3. The conviction and sentence were set aside, and the matter was returned to the Magistrate's Court to be dealt with.

In summary, the Supreme Court of Western Australia found that the magistrate failed to consider the material provided by the appellant in his endorsed plea, which was a serious departure from the prescribed processes for trial. The failure to consider the material provided by the appellant was a substantial miscarriage of justice, and the appeal was allowed on grounds 1 and 3. The conviction and sentence were set aside, and the matter was returned to the Magistrate's Court to be dealt with.

Orders