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).
Under a conduct agreement order made 4 November 2020, Mr Leister was restrained from communicating or attempting to communicate with the protected person by any means. The order was subject to an order made in the Family Court as to the care of their child. Subject to specified conditions, Mr Leister could communicate with the protected person without breach of the conduct order by using a communications book. The conditions included that communications could only concern matters relating to the child.
The prosecution alleged that Mr Leister communicated with the protected person by including material in a communication that went outside the terms of the Family Court order, by putting a copy of an email he had sent to the protected person's solicitors into the communications book.
On 22 June 2021, the protected person received the communication book and found a printout of the correspondence between Mr Leister and the solicitors for the protected person. She reported the matter to the police.

The hearing before the magistrate

The hearing before the magistrate was brief.
After stating there was an endorsed plea of guilty and being informed there was one traffic matter on Mr Leister's record, the magistrate heard the facts from the police prosecutor. The transcript records that, in stating the facts to the court, the prosecutor said:
The email [to the protected person's solicitors] contained information as to their daughter's care, but the accused went on to say, 'I've intended for you to feel unloved, unattractive or un‑wonderful. I have seen a lot of trickery and nastiness while my parents went through the courts and primarily choose to protect my family. What was left of it.'
17 June 2021, the accused received a reply from the law firm that the email would not be sent onto the complainant as they believed it contained information irrelevant and unnecessary. The accused was also warned to use the communication book in accordance with the court orders. 22 June 2021, the accused placed a copy of the printed email in the communications book for the complainant to find.
The accused then took the communication book along with his daughter to the day care centre where he dropped her off. Again, Tuesday, 22 June 2021, complainant collected her daughter from the childcare centre. During a review of the communications book, the complainant located a printout of the email exchange between the accused and the law firm … The incident upset the complainant and the matter was reported to police.
26 June 2021, the accused was arrested in Maddington, conveyed to Gosnells police station, participated in an audiovisual record of interview which he stated he put the note in the communications book for his records.[2]
[2] ts 2 - 3.
The magistrate then announced the penalty of $250 and costs.

The written plea

The approved form for a written plea of guilty contains a section where an accused person may offer an explanation and give any information that they want the court to consider when deciding what sentence to impose.[3] Mr Leister wrote in that section:
Please see attached letter and annexures and take account. Any questions or clarification required, call me on [mobile number].
[3] The form is consistent with s 33(2) of the Criminal Procedure Act 2004 (WA), which I set out later in these reasons.
In the attached letter Mr Leister stated 'in the interest of reducing costs and disruption to work and income I have opted to plead guilty in good faith that the following will be taken into account'. He included a copy of some pages from the communications book to 'give some context'.
On 15 June 2021, Mr Leister left a message in the book regarding make‑up he had left in the child's bag. The protected person responded, in substance, that the volume and value of the make‑up was inappropriate and that there was also a pair of scissors which were unsafe for a pre‑schooler.
The entry by Mr Leister on 21 June 2021 states simply, 'There are some notes in the front of the book for my records only'. Those notes included a copy of the email exchange with the solicitors, including the passage read by the prosecutor, except that the passage commences 'I have never intended for you to feel unloved, ….'

The grounds of appeal

Grounds 1 and 2: the appeal against conviction and sentence

The first ground of appeal raised by the appellant, that the matter was decided with incomplete investigation into the facts and circumstances, overlaps with the third ground of appeal, which alleges that the magistrate failed to take into account the information provided in the appellant's endorsed plea. In his submissions, the appellant referred to the lack of consideration given to the documents he had provided to the magistrate with the endorsed plea.
Mr Leister represented himself, both in preparing documents for the appeal and at the hearing. I have tried to ensure that his case is properly considered, even though his grounds and submissions were limited.
The respondent's written submissions dealt with grounds 1 and 3 together, as alleging a miscarriage of justice in terms of an appeal against conviction and sentence. That, in my opinion, is the proper approach to those grounds.
The respondent referred to well‑established principles regarding an appeal against conviction where there has been a plea of guilty.[4]
[4] Criminal Appeals Act 2004 (WA) s 8(2). And see Liberti v The Queen (1991) 55 A Crim R 120, 122; Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454 [171] - [172] (Mazza JA); Meissner v The Queen (1995) 184 CLR 132, 157; Snook v The State of Western Australia [No 2] [2015] WASCA 29 [106] (Hall J, Buss and Mazza JJA agreeing).
In this appeal, however, it is necessary to also have regard to s 51 of the Criminal Procedure Act 2004 (WA). That section applies if on a court date for a charge, the prosecutor appears and the court has received a written plea of guilty to the charge by the accused. The question of miscarriage of justice must be considered against the procedures required where the court deals with a written plea.
The day before the hearing of the appeal, I arranged for the parties to be advised that I would be assisted by submissions on the operation of s 51 in the circumstances.

Factual findings

Rule 66 of the Criminal Procedure Rules 2005 (WA) provides for this court to request the records or things held by the primary court (in this case, the magistrates court) for the purposes of the appeal. The magistrates court advised this court, in response to the notice requesting records, that no letter was attached to Mr Leister's written plea. Subsequently, following a request by my associate, we were provided with the plea and attachments filed with the Magistrate's Court on 13 July 2021.
The magistrate did not say whether he had read and had regard to the material attached by Mr Leister to his endorsed plea. His Honour simply said, 'Breach violence restraining order. It is an endorsed plea of guilty'. No reasons were given for the sentence imposed, although the fine demonstrates that his Honour did not regard the offence as a serious breach.
The magistrate did not refer to the documents that Mr Leister had sent in relation to his plea, either directly or indirectly, or to there being no attachments despite what Mr Leister had written on the form. A possible explanation, having regard to the initial response to the notice requesting the records, is that the attachments were not brought to his Honour's attention. The alternative is that the magistrate was aware of them, but failed to have regard to them.

The operation of s 51

My research revealed one previous decision under s 51. In that case, the appeal was conceded on the basis that a letter accompanying the endorsed plea indicated an equivocal plea of guilt.[5] The present case is not so straightforward.
[5] Henning v Khaw [2013] WASC 270.
Part 3 of the Criminal Procedure Act provides for prosecutions in court of summary jurisdiction, including prosecutions for simple offences and procedure on a charge of an indictable offence.
Division 3 deals with notifying the accused of the prosecution. The accused is entitled to a copy of the prosecution notice.[6] Section 33 provides for a court hearing notice. Relevantly, by s 33(2):
[6] Section 26.
(2)A court hearing notice must inform the accused -
(a) that the accused need not appear at the time when the prosecution notice to which it relates will be dealt with by the court; and
(b) that the accused may give the court written notice that the accused -
(i) pleads guilty to one or more of the charges in the prosecution notice;
(ii) pleads not guilty to one or more of the charges in the prosecution notice; and
(c) that if the accused pleads guilty in writing to a charge the accused may also, in writing -
(i) explain why the accused committed the offence;
(ii) provide information to the court that it may use when imposing a sentence for the offence; and
(d) that if the accused, in writing, pleads guilty or not guilty to a charge and does not appear, the charge may be dealt with in the accused's absence; and
(e) that if the accused does not enter a written plea to a charge in the prosecution notice and does not appear, the charge may be dealt with in the accused's absence.
The offence under s 61 of the Restraining Orders Act is a prescribed simple offence.[7] By s 35 of the Criminal Procedure Act, the prosecution was required to give initial disclosure, including a written statement of the material facts. The material before the court on the appeal does not reveal whether that was done. There is nothing to suggest that it was not.
[7] See Criminal Procedure Act, s 35; Criminal Procedure Regulations 2005 (WA) reg 10 and Sch 3.
Part 3, div 5 provides for procedure on a charge of a simple offence. Section 51 provides, where an accused has sent a written plea of guilty:
(3) On or as soon as practicable after the court date the court must hear and determine the charge as if the accused had pleaded guilty to the charge in person before the court.
(4) Except as provided in subsection (5A), the hearing under subsection (3) may be conducted in the absence of the accused or, if the accused appears voluntarily or pursuant to a summons or warrant issued under section 139 or a representative of the accused appears pursuant to a section 155 notice, in the presence of the accused.
(5) Despite subsection (3), if the court, having considered anything said by the accused to the court, whether orally or in writing, considers -
(a) that the accused may have a defence to the charge; or
(b) that the accused's version of the material facts of the charge differs materially from those in the prosecution notice or stated by the prosecutor to the court,
the court must -
(c) strike out the written plea of guilty to the charge; and
(d) adjourn the charge to a new court date; and
(e) issue to the accused both -
(i) a court hearing notice that states the new court date; and
(ii) an approved notice that explains why the charge has not been dealt with.
Where an accused is present before the court by s 59(2) and (3):
(2) Before requiring the accused to plead to the charge, the court must -
(a) be satisfied the accused has a copy of the prosecution notice containing the charge and has had time to consider the notice and seek legal advice about it; and
(b) be satisfied the accused understands the charge and the purpose of the proceedings; and
(c) if section 35 requires the prosecutor to serve the accused with any material and the prosecutor has not done so, proceed in accordance with section 35(10).
(3) After complying with subsection (2), the court must require the accused to plead to the charge.
Section 59(2) must be complied with where the court has received a written plea of guilty from an accused charged with a simple offence and has struck out the plea.[8]
[8] Section 59(2)(b).
Further procedural safeguards are provided in pt 5, which contains provisions applicable to any prosecution. By s 129(2), unless the plea is a written plea given to a court of summary jurisdiction, the court must not accept the plea unless the accused is represented by legal practitioner, or the court is satisfied the accused understands the plea and its consequences.
The effect of the court striking out a plea under s 51(5) is to ensure that, before requiring the accused to plead to the charge, the court is satisfied of those matters specified in s 59(2)(a)-(c); and that the accused has the benefit of the procedure prescribed by s 129(2) before the court accepts a plea of guilty.
Returning to s 51(5), paragraph (b) applies where the court considers the accused's version of the material facts of the charge to differ 'materially' from those in the prosecution notice or stated by the prosecutor to the court. The respondent submitted that on the proper construction of the section, for the difference in the accused's version to be 'material', the difference must be materially relevant to guilt.
The alternative construction is that the provision includes a difference in facts materially relevant to penalty. In my opinion, this construction is preferable, and is supported by the following: first, s 51(5)(a) provides separately for where the magistrate considers that the accused may have a defence which would include where the accused puts forward facts materially relevant to guilt; second, s 51(5)(b) refers to a material difference from the material facts in the prosecution notice, but also from the facts stated by the prosecutor;[9] third, the effect of the magistrate forming the relevant view is not to require the charge to go to trial, but to require the accused's presence and compliance with the procedures in s 59(2) before a plea is taken, and with s 129(2) before a plea of guilty is accepted.
[9] See s 129(3) and (4).
In the circumstances of this case, I do not need to finally resolve the competing constructions. With respect to Mr Leister, he was not able to offer submissions on that issue. The question would be best dealt with in proceedings where both parties are represented.

Consideration

The Criminal Procedure Act permits a departure, in specified circumstances, from the requirement for an accused person to appear and plead in person.
The principles relating to an appeal following a plea of guilty should be modified by regard to s 51(5) when the plea is written, and the procedural safeguards of s 59 and s 129 do not apply.
I am satisfied that there has been a departure from the prescribed procedure for convicting and sentencing on a written plea of guilty, due to the failure of the magistrate to consider the material provided by Mr Leister with his written plea. In my opinion, s 33(2), s 51(5) and s 59, read together, evidence a legislative intention that, where an accused person pleads guilty in writing and provides an explanation and information to the court, the court must consider that material because it must strike out the plea where the conditions of s 51(5)(a) or (b) are met.
Failure to follow the required procedure is, in itself, a miscarriage where that procedure is the substitute for the safeguards otherwise provided by the Act.
It was also a miscarriage in the breach of natural justice. Section 33 required Mr Leister to be given notice of the procedure for dealing with a plea in writing, and that he may offer an explanation and information for use in sentencing. It was a breach of natural justice to fail to have regard to that information and consider the issues raised by s 51(5). The court, on appeal, is addressing miscarriage, not jurisdictional error, and questions of materiality of the breach do not, at this point, arise.

Substantial miscarriage

Under s 14(2) of the Criminal Appeals Act 2004 (WA), even if a ground of appeal might be decided in his favour, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
There are many possible kinds of miscarriage, and there can be no single test for when a substantial miscarriage has occurred. In Baini v The Queen, the majority of the High Court identified kinds of cases where a substantial miscarriage will be found to have occurred, including 'where there has been a serious departure from the prescribed processes for trial'.[10]
[10] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 [26].
The court must have regard to the particular statute and the context in which s 14(2) operates.[11]
[11] WS v Gardin [2015] WASC 97.
The issue of miscarriage here arises where, in his letter accompanying the plea, Mr Leister stated that he pleaded guilty 'in the interest of reducing costs and disruption to work and income'. The plea is not an unequivocal admission of guilt.

There are also differences between the facts stated to the court by the prosecutor and the material filed by Mr Leister. The omission of the word 'never' is obvious but immaterial to guilt and unlikely to be material to sentence. The sentence imposed is not consistent with the magistrate regarding precisely what was said in the email as an important consideration. Were Mr Leister to be resentenced, a different penalty would not be imposed.
But there was another material difference. The statement of material facts by the prosecution included, 'the accused placed a copy of the printed email in the communications book for the complainant to find'. The material provided by Mr Leister with his plea shows that he placed the email in the communications book and wrote in the book, 'There are some notes in the front of the book for my records only'. It appears that the email was in a pocket with 'Frank's' written on it. A court could, of course, find that Mr Leister 'communicated' the email by drawing the attention of the protected person to it. Mr Leister may not have a defence. But the material he provided is inconsistent with the statement that he placed the email in the book 'for the complainant to find'. The combination of that material, with the equivocal plea, demonstrates that the magistrate needed to consider the information filed by Mr Leister and address the questions arising under s 51(5).
In summary, the magistrate was required to consider the material Mr Leister lodged with his written plea. The failure to do so is a serious departure from the processes prescribed by pt 5 div 3. It is only by following the process provided for by s 33 and s 51 that a plea of guilty can be received without first observing the safeguards in s 59 and s 129. And, on the facts, there was material that the magistrate needed to consider before accepting the plea.
I would not dismiss the appeal on the basis that no substantial miscarriage of justice has occurred.
I will grant leave on grounds 1 and 3, allow the appeal on those grounds, and set aside the conviction and sentence.
The matter must be returned to the Magistrate's Court to be dealt with.
It is unnecessary to consider ground 2 and whether a spent conviction order should have been made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
18 NOVEMBER 2021