Hagon v The King - [2025] SASCA 22

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 22
Court 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…

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 Hagon v The King

Details

AGLC: Hagon v The King [2025] SASCA 22
Case: [2025] SASCA 22
Decision Date: 13 March 2025

CaseChat Overview and Summary

The applicant, a qualified massage therapist, pleaded guilty to 11 counts of indecent assault against nine female clients, with the offending occurring between August 2019 and November 2021. The sentencing judge imposed a head sentence of six years imprisonment with a non-parole period of four years, nine months, and nineteen days. The applicant sought permission to appeal his sentence, arguing that the sentencing judge failed to give him credit for time already served, including eight days in custody on remand and two years, three months, and twenty-one days on home detention bail. The respondent consented to the appeal being allowed for the purpose of resentencing.

The legal issue before the Court of Criminal Appeal of South Australia was whether the sentencing judge erred by failing to account for the time the applicant had already served in custody and on home detention bail when imposing the sentence. The Court was required to determine the appropriate sentence after making allowance for this period of time served.

S Doyle and David JJ found that it was appropriate to intervene and resentence the applicant, acknowledging the oversight in the original sentencing. While the Court did not definitively rule on the applicability of section 20 of the Sentencing Act 2017 (SA), it was satisfied that an allowance for time served was warranted. The Court determined that the head sentence and non-parole period identified by the sentencing judge were otherwise appropriate, and the primary task was to adjust these to reflect the time already served.

The Court granted permission to appeal, allowed the appeal, and set aside the original sentence. In lieu thereof, the applicant was sentenced to imprisonment for five years and four months, with a non-parole period of four years, one month, and nineteen days. This revised sentence was backdated to commence on 26 August 2024.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.