Hawkins v Bishop
[2014] ACTSC 93
•7 February 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | HAWKINS v BISHOP |
Medium Neutral Citation: | [2014] ACTSC 93 |
Hearing Date(s): | 7 February 2014 |
DecisionDate: | 7 February 2014 |
Before: | Penfold J |
Category: | Appeal from Magistrates Court (criminal) |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Appeal against sentences imposed in Magistrates Court for ninth offence of driving while disqualified and earlier similar offence – appeal grounds claiming inadequate recognition or inadequate weight given to particular factors relevant to sentencing – no error in Magistrate’s recognition of appellant’s efforts to improve his “social and parental responsibility” – no error in relation to plea of guilty – sentence not manifestly excessive – appeal dismissed. |
Cases cited: | Bugmy v The Queen [2013] HCA 37 |
Decision: | 1. Leave is given to amend the Notice of Appeal. 2. The appeal is dismissed. |
Parties: | Jason Paul Hawkins ( Appellant) Leigh Bishop ( Respondent) |
File Number(s): | SCA No. 70 of 2013 |
Introduction
Jason Paul Hawkins appealed from sentences imposed by Magistrate Doogan on 4 September 2013. The sentences totalled 14 months imprisonment to start on 4 September 2013 and to be suspended after nine months (being 4 June 2014) subject to an 18-month good behaviour order with a $750 surety.
The appeal
The original Notice of Appeal, filed by Mr Hawkins himself from prison, specified “severity” as his appeal ground. I have treated this, as did the respondent Director of Public Prosecutions, as a claim of manifest excess.
Submissions subsequently prepared on Mr Hawkins’ behalf by his solicitor assert that the Magistrate did not take account of his early plea of guilty, and that her Honour did not adequately recognise the positive steps that Mr Hawkins had taken to improve his “social and parental responsibility”.
The sentences imposed were:
(a)for an offence of driving while disqualified as a repeat offender (CC2013/1458: 7 February 2013) – 8 months imprisonment and 24 months licence disqualification; and
(b)for an earlier offence of drive while disqualified (CC2012/5112) – 6 months imprisonment accumulated on the 8-month sentence.
The latter sentence was a re‑sentence for an earlier offence committed apparently in June 2012, for which Mr Hawkins was originally sentenced on 31 October 2012 to 6 months imprisonment fully suspended subject to a 12-month good behaviour order – that good behaviour order was breached by the February 2013 offence.
Grounds of appeal
Given that Mr Hawkins prepared his own appeal notice initially, I was willing to give him leave to add the two appeal grounds identified in his counsel’s submissions. It is convenient to deal with those new appeal grounds first.
Failure to “adequately recognise” particular factors
It is extremely difficult to make out a claim that error is demonstrated by a failure to “adequately recognise” a particular circumstance relied on by an offender, as it was put in this case or, as it is often put, by a failure to give adequate weight to a particular circumstance (see Bugmy v The Queen [2013] HCA 37 at [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) and [53] (Gageler J)). There is no doubt that the sentencing Magistrate was well aware of Mr Hawkins’ efforts to improve his parenting skills and the support he provided to his family, having among other things heard evidence from a social worker who had been dealing with Mr Hawkins on behalf of Barnardos.
Her Honour took the view, as is indicated in the transcript, that despite that progress and Mr Hawkins’ progress in relation to illicit drug use and the obvious needs of his family, including his disabled son:
there is little if any reason for the court to have any confidence that he will stop offending, absolutely no reason to believe that he will not continue to offend.
There is no substance in this ground of appeal.
Failure to take account of guilty plea
Mr Hawkins’ counsel, in discussion, conceded in relation to this appeal ground that her Honour did take account of Mr Hawkins’ early plea of guilty, given that she said:
on the charge of drive disqualified ... being a repeat offender, he will be convicted and sentenced to 8 months’ imprisonment. That would have been 10 months if he had not pleaded guilty.
That is, her Honour gave a 20% discount for Mr Hawkins’ plea of guilty. There is no basis for suggesting that her Honour fell into error in relation to the plea of guilty.
Manifest excess
Finally, there is the question of manifest excess. I note the following facts:
(a)That Mr Hawkins committed the most recent drive while disqualified offence a month after I had sentenced him, for several dishonesty offences, to 11 months imprisonment to be served by way of periodic detention.
(b)That the most recent drive while disqualified offence was apparently his ninth such offence, and there are also numerous other driving offences on his exceptionally long criminal record. There was no explanation for his offence offered to the sentencing Magistrate, although I note that in the course of this appeal Mr Hawkins, in a letter to the court, said that he had driven his motorbike to the AMC to see his son who was at the time in custody there.
(c)That her Honour said on sentencing:
So having regard to the various considerations relating to sentencing, particularly those in sections 7 and 33 of the Crime (Sentencing) Act, I am of the view that no sentence other than a sentence of imprisonment is an appropriate sentence. And I have come to that conclusion because, in my view, to not impose an immediate sentence of imprisonment upon a person who is convicted of nine drive disqualified offences, would make a mockery, a total mockery, of the law and send the wrong message to those in the community who are regularly committing such offences, and the wrong message, particularly to this defendant.
It would let him think that he has gotten away with it the way that he obviously thinks that he has the last time he was sentenced to a six months’ sentence of imprisonment.
In these circumstances, I can see no basis for concluding that the sentences imposed on Mr Hawkins by her Honour were so severe that there must have been some error, albeit unidentifiable, in her Honour’s sentencing processes. This ground of appeal also fails.
Order
The appeal is accordingly dismissed.
| I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: | |
Representation: | Counsel: Mr F Wilson (Appellant) Mr M Thomas (Respondent) |
| Solicitors: Wilson Phillips Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) |
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