Hebberman v Police - [2010] SASC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HEBBERMAN v POLICE
[2010] SASC 98
Judgment of The Honourable Justice Gray
9 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY SERVICE ORDERS
Appeal against sentence - defendant and appellant pleaded guilty to offence of being unlawfully on premises contrary to section 17(1) of the Summary Offences Act 1953 (SA) - defendant placed on good behaviour bond of six months in the sum of $500.00 - condition of bond that defendant not attend at premises the subject of the primary charge - defendant breached the condition of bond by attending at those premises - Magistrate convicted defendant of offence of being unlawfully on premises and ordered that defendant perform 100 hours of community service within six months - whether sentence manifestly excessive - whether Magistrate erred in failing to give adequate weight to impact that community service ordered would have on defendant's employment and failing to allow defendant to make submissions on that matter - whether defendant's non-compliance with bond could be characterised as trivial and requiring no further action - whether Magistrate erred in recording a conviction.
Held: appeal allowed - conviction and sentence imposed by Magistrate set aside - defendant placed on 12 month good behaviour bond supervised for six months - condition of bond that defendant perform 40 hours of community service within six months - Magistrate erred in failing to allow material relevant to impact of community service on defendant's employment to be put before Court - denial of procedural fairness requires reconsideration of matter - consideration of characterisation of bond - consideration of discretion to proceed without recording conviction - having regard to circumstances of offence and defendant good reason exists for Court to proceed without recording a conviction.
Summary Offences Act 1953 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 39, s 47(1)(h) and s 58(1), referred to.
Cutting v Police [2009] SASC 326; Nollen v Police (2001) 78 SASR 421; Fischer v Chambers (1972) 4 SASR 105; Buttigieg v Police (1999) 74 SASR 229; McAvaney v Quigley (1992) 58 A Crim R 457; R v Lambert [2009] SASC 307; Hodgins v Police (2008) 256 LSJS 270, considered.

HEBBERMAN v POLICE
[2010] SASC 98
Magistrates Appeal
GRAY J:
Introduction

This is an appeal against sentence.
On 8 July 2009, the defendant and appellant, Rhys Kym Hebberman, pleaded guilty to the offence of being unlawfully on premises situated behind Shapes Nite Club, Naracoorte on 15 February 2009 contrary to section 17(1) of the Summary Offences Act 1953 (SA).[1] The Magistrate sentenced the defendant without recording a conviction and imposed a bond in the sum of $500.00 to be of good behaviour for a period of six months. It was a condition of that bond that the defendant not attend at or…

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 Hebberman v Police

Details

AGLC: Hebberman v Police [2010] SASC 98
Case: [2010] SASC 98
Decision Date: 9 April 2010

CaseChat Overview and Summary

The case of Hebberman v Police is an appeal against a sentence imposed by a Magistrate. The defendant, Hebberman, pleaded guilty to the offence of being unlawfully on premises contrary to section 17(1) of the Summary Offences Act 1953 (SA). The defendant had been placed on a good behaviour bond of six months in the sum of $500.00, with a condition that he not attend at the premises the subject of the primary charge. Hebberman breached the condition of the bond by attending at those premises. The Magistrate convicted Hebberman of the offence of being unlawfully on premises and ordered him to perform 100 hours of community service within six months. Hebberman appealed against the sentence, arguing that it was manifestly excessive and that the Magistrate erred in failing to give adequate weight to the impact that the community service ordered would have on his employment and in failing to allow him to make submissions on that matter.

The legal issues in this case were whether the sentence imposed by the Magistrate was manifestly excessive, whether the Magistrate erred in failing to give adequate weight to the impact that community service ordered would have on Hebberman's employment and in failing to allow him to make submissions on that matter, and whether Hebberman's non-compliance with the bond could be characterised as trivial and requiring no further action. The court also had to consider whether the Magistrate erred in recording a conviction.

The court found that the Magistrate's order that Hebberman pay the amount of the bond of $500.00 was appropriate in the circumstances. The court found that the defendant breached his contract with the State and it was appropriate that he forfeit the amount of money stipulated by the terms of that contract. However, the court found that the sentence imposed by the Magistrate was manifestly excessive. The court found that the Magistrate erred in failing to give adequate weight to the impact that the community service ordered would have on Hebberman's employment and in failing to allow him to make submissions on that matter. The court found that Hebberman's non-compliance with the bond could be characterised as trivial and requiring no further action. The court found that the Magistrate erred in recording a conviction.

The appeal is allowed. The conviction and sentence imposed by the Magistrate is set aside. The defendant is placed on a 12 month good behaviour bond to be subject to supervision for six months. It is a condition of that bond that the defendant perform 40 hours of community service within six months.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Magistrate revoked the good behaviour bond and ordered the defendant to pay the amount of the bond of $500.00. There is no appeal against these orders. Background The incident giving rise to the charge of being unlawfully on premises occurred in the early morning of 15 February 2009. On that occasion, the defendant had attended at Shapes Nite Club with his partner. At or about 1.50 am the defendant left the nightclub and spent some minutes on the front veranda area. On attempting to re-enter the venue a short time later, the defendant was informed that he could not gain entry to the nightclub, as it was after the nightclub’s 1.45 am curfew. Shortly thereafter, he was seen in the area to the rear of Shapes Nite Club. The defendant was escorted from that area by staff members and informed that he was trespassing on private property. Some ten minutes later, the defendant was again seen in the area to the rear of the nightclub, apparently attempting to gain entry via an emergency fire exit. The apprehension report discloses that an employee of Shapes Nite Club observed the defendant’s partner talking on her mobile telephone near the fire exit and noted that she appeared as if she was about to open the fire exit. That employee opened the exit and observed the defendant near the fire exit, to the rear of the nightclub, on private property. The employee called out for the defendant to leave, which he did. The employee notified the police, who later attended on the defendant and reported him for being unlawfully on premises. The defendant on being questioned, stated that he could not remember much about the evening as a consequence of his intoxication, but agreed that if he had entered the yard to the rear of the nightclub, he had no lawful excuse for doing so. No incident of bad behaviour on the part of the defendant was alleged other than the fact of being unlawfully on premises. On 2 August 2009, the defendant attended at Shapes Nite Club in breach of his good behaviour bond. An employee of the nightclub detected the defendant’s presence and ejected him before notifying the police. Again, there was no allegation of drunken or inappropriate behaviour on behalf of the defendant. The defendant paid a fee in order to gain entry to the nightclub and his ejection was as a consequence of an employee being aware that the defendant was subject to a bond barring him from the premises. There was no suggestion that the defendant failed to comply with the request made of him to leave the premises and it would appear that he was cooperative with the police on their arrival. On that occasion the defendant was assessed by the police as being moderately to grossly intoxicated. It is to be observed that both the offending of 15 February 2009 and that of 2 August 2009 involved minor criminal misconduct. No other criminal intent on the part of the defendant is evident other than a desire to be on the premises of the nightclub for social entertainment purposes. No incidents of damage or aggression were involved. Both incidents occurred in circumstances of alcohol consumption. Apparently, in the time prior to the breach of bond, the defendant had experienced a breakdown in a long term relationship, which had resulted in the defendant increasing the frequency and extent of his alcohol consumption.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In relation to the offence of breach of bond, the Magistrate’s order that the defendant pay the amount of the bond of $500.00 was appropriate in the circumstances. Despite the relatively minor nature of the defendant’s offending, the defendant breached his contract with the State and it is appropriate that he forfeit the amount of money stipulated by the terms of that contract. Although the bond expired on 8 January 2010, the amount of the bond was due as a consequence of the breach of 2 August 2009.Conclusion The appeal is allowed. The conviction and sentence imposed by the Magistrate is set aside. The defendant is placed on a 12 month good behaviour bond to be subject to supervision for six months. It is a condition of that bond that the defendant perform 40 hours of community service within six months.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.