Hodgins v Police - [2008] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HODGINS v POLICE
[2008] SASC 176
Judgment of The Honourable Justice Gray
4 July 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - DISCRETION TO NOT RECORD CONVICTION
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION
Appeal against sentence - defendant pleaded guilty to assault - Magistrate convicted the defendant and ordered his release on a good behaviour bond - Magistrate declined to record no conviction - Magistrate provided no reasons - bond that was drawn up referred to a different offence to the one that the defendant pleaded guilty to and was convicted of - Crown conceded on appeal that the failure of the Magistrate to provide written reasons prevented this Court from effectively discharging its appellate function, and so this Court should reconsider the issue of an appropriate sentence - defendant had no prior conviction for an offence involving violence - a conviction would adversely affect the defendant’s employment prospects overseas - victim had sought to withdraw her complaint - defendant was generally of good character - defendant was of a relatively young age, being 25 years old at the time of the offence - defendant had a good record in regard to his employment - whether it was appropriate in the circumstances to record a conviction.
Held: appeal allowed - considerable weight should be attached to the possible adverse impact that the conviction may have on the defendant’s employment - good reason exists to proceed without recording a conviction - defendant placed on a supervised two-year good behaviour bond.
Criminal Law Consolidation Act 1935 (SA) s 20(3) and s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 16 and s 39, referred to.
Mann v Yannacos (1977) 16 SASR 54; Commonwealth Director of Public Prosecutions v Cole (2005) 91 SASR 480; Sims v Police (2000) 30 MVR 254; [2000] SASC 102; R v Yousef (2005) 155 A Crim R 134; O’Hanlon v SA Police (1994) 62 SASR 553; MacGregor v Police (1995) 66 SASR 269; Buttigieg v Police (1999) 74 SASR 229; McAvaney v Quigley (1992) 58 A Crim R 457, considered.

HODGINS v POLICE
[2008] SASC 176
Magistrates Appeal
GRAY J

This is an appeal against sentence.
The defendant and appellant, Glen Lee Hodgins, pleaded guilty to the charge of assault, contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA).[1] The particulars alleged that on 28 December 2006, in suburban Adelaide, the defendant assaulted his spouse.
[1] Section 20(3) of the Criminal Law Consolidation Act 1935 (SA) provides:
A person who commits an assault…

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.

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Details

Case: [2008] SASC 176
Decision Date: 4 July 2008

CaseChat Overview and Summary

The case of Hodgins v Police involved an appeal against a sentence given to the defendant, Hodgins, who had pleaded guilty to an assault charge. Following the plea, the magistrate convicted Hodgins and ordered his release on a good behaviour bond, but declined to record a conviction. The magistrate did not provide any reasons for this decision, which was a significant point of contention in the subsequent appeal. The bond that was drafted contained a reference to a different offence than the one Hodgins had pleaded guilty to and been convicted of. The Crown conceded on appeal that the lack of written reasons from the magistrate prevented the court from effectively performing its appellate function, thus necessitating a reconsideration of the appropriate sentence.

The legal issues that the court had to decide centred around the appropriateness of the sentence imposed by the magistrate and whether it was correct not to record a conviction. The court had to consider the potential impact that a conviction could have on Hodgins's future employment prospects, particularly overseas, and the fact that the victim had attempted to withdraw her complaint. Other factors considered included Hodgins's generally good character, lack of prior convictions for violent offences, young age at the time of the offence, and his good employment record. The court needed to determine if there was sufficient justification to proceed without recording a conviction.

The court determined that considerable weight should be given to the potential negative impact a conviction could have on Hodgins's overseas employment prospects. It found that there was good reason to proceed without recording a conviction. Consequently, the appeal was allowed and Hodgins was placed on a supervised two-year good behaviour bond. The court emphasised the importance of the mitigating factors, including the defendant's good character and lack of prior convictions, in arriving at its decision.

Orders