Hagon v The King
[2025] SASCA 22
•13 March 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HAGON v THE KING
[2025] SASCA 22
Judgment of the Court of Appeal
(The Honourable Justice S Doyle and the Honourable Justice David)
13 March 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The applicant seeks permission to appeal against sentence on the basis that the sentencing judge overlooked making allowance for time served on remand and on home detention bail. The respondent concedes error and consents to the application.
After pleas of guilty, the applicant was sentenced for 11 counts of indecent assault, contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). The applicant was a qualified massage therapist who provided massage services from his home studio. The offending occurred in the context of the applicant providing massage services to nine female clients who were the victims of his offending.
The sentencing judge imposed a single sentence of imprisonment for 6 years, and fixed a non-parole period of 4 years, 9 months and 19 days.
It is agreed that prior to being sentenced, the applicant served 8 days in custody on remand, and 2 years, 3 months and 21 days on home detention bail.
Held, per the Court, granting the applications for an extension of time and permission to appeal, and allowing the appeal:
1.It is appropriate to set aside the sentence below and resentence the applicant on a basis which makes allowance for time served;
2.In resentencing the applicant, the head sentence and non-parole period identified by the sentencing judge were appropriate, but should be reduced by 8 months for time served on remand and on home detention bail; and
3.Accordingly, the applicant is resentenced to imprisonment for 5 years and 4 months, with a non-parole period of 4 years, 1 month and 19 days, backdated to commence on 26 August 2024.
Criminal Law Consolidation Act 1935 (SA) s 56(1); Sentencing Act 2017 (SA) ss 20, 26, referred to.
R v Tsonis (2018) 131 SASR 416, applied.
HAGON v THE KING
[2025] SASCA 22Court of Appeal – Criminal: S Doyle and David JJA
THE COURT: The applicant seeks permission to appeal against sentence on the basis that the sentencing judge overlooked making any allowance for the time he had served in custody and on home detention bail prior to being sentenced.
In circumstances where the respondent consents to the application and appeal being allowed for the purpose of addressing this oversight, it is appropriate that this Court resentence the applicant, with an appropriate allowance for time served.
Background
The applicant pleaded guilty to 11 counts of indecent assault, contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for each offence was imprisonment for 8 years.
The applicant was a qualified massage therapist who provided massage services from his home studio, including to the nine female clients who were the victims of his offending. Whilst performing massage therapy, the applicant indecently assaulted the victims variously by touching their breasts, buttocks and vagina (including underneath their clothing). Save for one earlier count, the offending occurred on various occasions between August 2019 and November 2021. Each of the victims provided a victim impact statement.
The judge’s sentencing remarks included a summary of the applicant’s offending and the victim impact statements. Given the limited scope of the proposed appeal, it is not necessary to repeat this detail. Neither is it necessary to repeat the detail of the judge’s summary of the applicant’s personal circumstances, which included reference to the pertinent aspects of a report provided by a psychologist, Dr Lim.
The sentencing judge identified notional sentences for each of the offences, adopting starting points of between 12 months imprisonment and 2 years and 6 months imprisonment, and applying a reduction for the applicant’s guilty pleas of five per cent. Her Honour ultimately imposed a single sentence under s 26 of the Sentencing Act 2017 (SA) of imprisonment for 6 years. Noting that she was required to fix a non-parole period of not less than four-fifths the length of this period, the judge fixed a non-parole period of 4 years, 9 months and 19 days.
The appeal
The applicant was taken into custody on the day he was sentenced. However, he had earlier served a period of 8 days in custody on remand, and 2 years, 3 months and 21 days on home detention bail.
The applicant seeks permission to appeal on the sole ground that the sentencing judge failed to give him any credit for this period of time served. Whilst noting that the judge made passing reference to the applicant having complied with his home detention, the respondent concedes error and does not object to this Court granting permission to appeal, and allowing the appeal for the purpose of resentencing the applicant on a basis which makes allowance for the time served.
Having considered the submissions and sentencing material provided to this Court, we are satisfied that it is appropriate to intervene on the basis contended. Without deciding whether s 20 of the Sentencing Act might have been applied, we are satisfied that it is appropriate to grant permission to appeal, allow the appeal and resentence the applicant. In resentencing, we consider that the head sentence and non-parole period identified by the sentencing judge were appropriate. It remains only to make an appropriate allowance for the time served.
The applicant should receive full credit (that is, ‘day for day’ credit) for the 8 days spent in custody. As explained in R v Tsonis,[1] in making allowance for the time spent on home detention bail, the Court exercises a broad discretion, having regard to the nature and extent of the conditions imposed upon the offender, the imposition they represent for the offender, and the offender’s compliance with them. There is no formula for determining the extent of the credit to be given.
[1] R v Tsonis (2018) 131 SASR 416 at [86] (Lovell, Doyle and Hinton JJ).
In circumstances where the applicant complied with a standard home detention agreement, and neither party has made any submission as to any unusual circumstances that might influence this Court’s exercise of its discretion, an overall allowance of 8 months for the time served in custody and on home detention bail is appropriate.
That results in a head sentence of 5 years and 4 months imprisonment, with a non-parole period of 4 years, 1 month and 19 days.
Conclusion
It is appropriate to grant the applicant an extension of the time within which to seek permission to appeal, grant permission to appeal, and allow the appeal.
The sentence below is set aside, and in lieu thereof, the applicant is sentenced to imprisonment for 5 years and 4 months, with a non-parole period of 4 years, 1 month and 19 days. The sentence is backdated to commence on 26 August 2024.