Hodgins v Police
[2008] SASC 176
•4 July 2008
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 176Magistrates 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 is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 2 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 3 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years.
The Magistrate convicted the defendant and ordered his release on a two-year good behaviour bond. He rejected a plea that no conviction be recorded. The Magistrate provided no reasons. It is to be observed that the bond entered into by the defendant related to a different and more serious offence, being an offence against subsection 20(4) of the Criminal Law Consolidation Act.[2]
[2] Section 20(4) of the Criminal Law Consolidation Act 1935 (SA) provides:
A person who commits an assault that causes harm to another is guilty of an offence.
Maximum penalty:
(a) for a basic offence-imprisonment for 3 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)-imprisonment for 4 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon-imprisonment for 5 years.
Note-
This offence replaces section 40 (assault occasioning actual bodily harm) as in force prior to the commencement of this subsection and, consequently, see Coulter v The Queen (1988) 164 CLR 350.
Apparently when the bond was drawn up, there was a failure to accurately identify the offence to which it related. The complaint had originally alleged a breach of subsection 20(4), but this was amended to allege a breach of subsection 20(3), the offence to which the defendant pleaded guilty. However, the amendment of the complaint does not appear to have been accurately recorded, and there is no endorsement by the Magistrate, either on the complaint or elsewhere, confirming the amendment. This may explain the error made in the preparation of the bond. On the hearing of the appeal, it was accepted by both parties that the defendant’s plea had been to an offence against subsection 20(3).
In Mann v Yannacos, the significance of a prepared bond not according with the order of the Court was discussed by Bray CJ as follows:[3]
I add that, even if the order were good, the bond is not. For the learned Special Magistrate expressly ordered that the appellant be bound over to keep the peace towards the respondent. The bond as tendered to him and executed by him is conditioned on him keeping the peace and being of good behaviour. If the greater includes the less, the less does not include the greater. The appellant was not ordered to be bound over to be of good behaviour, though ironically enough, if I am right, that is the type of order which the learned Special Magistrate could correctly have made in the circumstances. It is true enough that the words “shall keep the peace and be of good behaviour” appear in the condition of the bond in form No. 37. Whether the words about good behaviour ought to be there as a matter of course admits of considerable question. Form 37 is the form provided for the recognizance to be entered into as the result of a complaint under s 99 and that section empowers the Court to order a recognizance “to keep the peace, or be of good behaviour”. It is expressed in the disjunctive. The form is expressed in the conjunctive. It is correct to use it if both conditions are ordered by the Court. It is not correct if only one is ordered. Care should be taken in every case to see that the condition of the bond conforms to the actual words of the order. However that may be, the learned Special Magistrate in this case had no power to act under s 99 at all. He could have acted on his own motion by ordering a bond to be of good behaviour. What he purported to do was to order the appellant to enter into a recognizance to keep the peace. Whether that was correct in the circumstances or not, he said nothing about good behaviour and the words relating to it should not have been in the bond.
That means, in my opinion that the bond cannot stand, whether the order is valid or not. I think the true position is that when the condition of a bond is entire and any part of it is unlawful or void, the bond is entirely void, but where there are separate and independent conditions the bond will remain valid for such of the conditions as are good (Halsbury, Laws of England, 3rd ed. vol. 3, p. 335). I am not sure here whether the condition is entire or not, but in any event I think that if a bond is entered into under the compulsion of an order of the Court, backed by the sanction of imprisonment on refusal, it ought not to stand if it does not comply with the order of the Court. The power of this Court on appeal to cancel a recognizance entered into pursuant to an order of the Court appealed from was discussed and affirmed by this Court in Fischer v. Chambers.
In the circumstances the bond was ineffective, and in all probability a nullity.
[3] Mann v Yannacos (1977) 16 SASR 54 at 63-64 (footnotes omitted). See also Commonwealth Director of Public Prosecutions v Cole (2005) 91 SASR 480 at [18].
On appeal the defendant complained about the recording of the conviction. It was said that there were circumstances that justified the Court to proceed without recording a conviction. It was contended that the absence of reasons for the rejection of this submission, and for the sentence imposed, was an important omission, and that in the circumstances error occurred in the sentencing process. It was said that the failure of the Magistrate to provide sentencing remarks seriously impeded the defendant’s ability to present submissions on appeal and adversely affected, in a material way, the ability of this Court to perform its appellate duties.
On the hearing of the appeal, the Crown conceded that the failure of the Magistrate to provide sentencing remarks prevented this Court from effectively discharging its appellate function. It was accepted that the appeal should be allowed and that this Court should reconsider the issue of an appropriate sentence. However, it was contended that, in the circumstances, it was appropriate for this Court to record a conviction.
The facts were agreed and were before the Magistrates Court in the following terms:
[The victim], had been in a relationship with the [defendant] for about three years and they have a two year old son from that relationship. [The victim] states that she rang the [defendant] at about 4pm on Thursday 22 December 2006 because he was not home yet. From the conversation she could tell that he had been drinking. About twenty minutes later the [defendant] arrived home and they began to have a verbal argument. [The victim] then grabbed her handbag and her son’s hand to leave the premises. The [defendant] then stood in the doorway not allowing her to leave and then shoved her with his body forcibly into the door frame. [The victim] then became angry and hit the [defendant’s] chest and told him to leave her alone.
At one time, there was a suggestion that there was a dispute as to whether the victim had first struck the defendant, and whether the defendant had acted with excessive self defence. On appeal, the defendant disavowed any such assertion and accordingly, when considering sentence, this Court was invited to act on the agreed facts.
It was common ground that the defendant had no prior conviction for an offence involving violence. However, he did have two traffic convictions, one of which is of some relevance as it was alcohol related – a drink driving offence in 2005.
It had been submitted to the Magistrate that a conviction would adversely affect the defendant’s employment prospects overseas. No documentary evidence was provided to support this submission. On the hearing of the appeal, and when considering re-sentence, the defendant provided a report from his employer Weatherford Drilling International. The contents of this report are relevant to the submission that no conviction should be recorded. The full text of the report is as follows:
[The defendant] has been working with the company since 9th April 2007 in the position of Boilermaker/Welder on the maintenance of our oil rigs in the Cooper Basin.
Weatherford Drilling International has companies in Asia, Europe, North & South America and there are opportunities for [the defendant] to expand his employment in overseas drilling operations.
[The defendant] has been employed under an Australian Workplace Agreement and a condition of that employment is that all employees comply with the Company’s Drug and Alcohol Policy (drug and alcohol free). [The defendant] must comply with that policy and must be able to obtain an Australian Passport and appropriate Police clearance to further his opportunities in our overseas operations, any criminal conviction will seriously hamper his employment opportunities in the future.
[The defendant] has proven to be a dedicated, trustworthy and hard working employee. I have no hesitation in recommending him in the above capacity or higher without any reservations.
Counsel submitted that this was the only occasion on which the defendant had been violent toward his spouse, that she had sought to withdraw her complaint, and that, although they are now living apart, they enjoyed a cordial relationship in their regular contact with respect to their child. It was contended that the Court could be satisfied that the defendant was unlikely to commit such an offence again. It was said that the defendant was generally of good character, was of a relatively young age, being 25 years old at the time of the offence, and had a good record in regard to his employment. It was pointed out that the pushing of his spouse, which was the act giving rise to the offence, was a one-off incident that caused no injury. It was further pointed out that the defendant was truly contrite and remorseful. It was emphasised that the letter from the defendant’s employer evidenced the serious impact that a conviction would have on his employment opportunities. It was contended that this was an extenuating circumstance, and that together with the factors mentioned above, gave rise to the existence of a good reason not to record a conviction.
Counsel for the Crown accepted the facts as outlined above, but said that crimes of domestic violence were particularly serious and that although there was no need for personal deterrence in this case, the issue of general deterrence was important. Counsel contended that men in the community must understand that domestic violence is totally unacceptable, and that the need for general deterrence in this particular case outweighed those factors that would lead to the Court proceeding without conviction.
The power of the Court to proceed without conviction has its source in two statutory provisions - sections 16 and 39 of the Criminal Law (Sentencing) Act 1988 (SA).
Section 16 provides:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to—
(i) the character, antecedents, age or physical or mental condition of the defendant; or
(ii) the fact that the offence was trifling; or
(iii) any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
It is to be observed that there are a number of preconditions to the enlivening of the discretion under section 16 not to record a conviction. The Court must propose to impose a fine, a sentence of community service, or both, and the Court must then form the opinion referred to in section 16(a), and then, having regard to the factors referred to in section 16(b), the Court must reach the conclusion that good reason exists for not recording a conviction. When those preconditions are satisfied, the discretion to proceed without recording a conviction is enlivened.
As Bleby J, when referring to section 16, observed in the course of his ex tempore reasons in Sims:[4] “If the necessary opinion is formed, it is unlikely that the Court will record a conviction”. I agree with this observation. However, Bleby J further commented that:[5]
[T]he assumption behind s 16 of the Sentencing Act is that in most cases a conviction will be recorded. S 16 is by way of exception to the normal rule.
Counsel for the Crown accepted that this remark should not be understood to impose any fetter on the Court’s discretion. Counsel agreed that if the preconditions were established, and the discretion enlivened, then, as Bleby J earlier observed, it was unlikely that the Court would record a conviction. Counsel’s submission was that, in this particular case, as the relevant act was one of domestic violence, the Court should record a conviction.
[4] Sims v Police (2000) 30 MVR 254; [2000] SASC 102 at [5].
[5] Sims v Police (2000) 30 MVR 254; [2000] SASC 102 at [7].
The alternative source of power under which the Court might proceed without recording a conviction is to be found in section 39:
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(ab) to comply with the other conditions (if any) included in the bond; and
(b) if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2) Where a defendant is discharged under this section—
(a) no fresh prosecution may be commenced in respect of the offence; and
(b) the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
There are important differences in the wording of sections 16 and 39. The preconditions to enliven the respective discretions differ. Under section 39 there is no need for the Court to be intending to impose a fine or to make a community service order. There is no requirement for the Court to have regard to particular factors in arriving at the conclusion that good reason exists to discharge the defendant without recording a conviction. No doubt, as observed in Yousef,[6] the factors to be considered by the Court in exercising the section 39 discretion may be similar to the factors that arise under section 16. However, it is important to recognise that the sections have different work to do and operate in different circumstances.
[6] R v Yousef (2005) 155 A Crim R 134.
In my view, in the present case, considerable weight should be attached to the possible adverse impact that the conviction may have on the defendant’s employment. This Court has consistently taken the view that jeopardising or putting at risk future employment prospects is a relevant factor to be weighed.
In O’Hanlon,[7] Bollen J, when considering section 16, observed:
[7] O’Hanlon v SA Police (1994) 62 SASR 553 at 557.
Looking at the matter generally, as I say, we know as I repeat, that a conviction may handicap someone in getting a job. I think that in the circumstances in this day and age in the state of the labour market good reason does exist here for not recording a conviction on the score that it is unlikely that this young man will offend in this way again and on the score of his good character, his good antecedents and his age. I think that, even allowing for the seriousness of some of the offences but taking into account the spontaneous nature of the offences and the apology at the time, I can say that the magistrate here erred in giving too little weight to the good things that can be said about the appellant and to the effect that the arrest and appearance in court must have had on his resolution for the future.
In MacGregor,[8] Debelle J observed:
The criminal law exists for the protection of the public and the protection of the public must remain the first concern of the court. But public concern about crime should not displace the fundamental concepts of justice and mercy which should animate criminal tribunals of civilised nations. Whilst the protection of the public is the first concern of the courts, if, consistently with that, the courts can, in their compassion, assist another human being to avoid making ruin of his life, they ought to do so. These observations will immediately be recognised as those made by King CJ in Yardley v Betts (1970) 22 SASR 108 at 112-113. Many years earlier, like observations had been made by Napier CJ in Webb v O'Sullivan [1952] SASR 65 at 66 where his Honour said: “The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as earlier as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offender will warrant, but rather the minimum which is consistent with the due regard for the public interest.” In refusing to accede to the submission that convictions should not be recorded, the magistrate has, I think, failed to have sufficient regard – or, indeed, any regard – to the circumstances of this offender and to consider whether, in all of the circumstances, a merciful approach towards him would, notwithstanding the seriousness of the offence and his offending, justify the course which he was asked to take. His reasons do not disclose any consideration of those factors. Again, I acknowledge that allowance must be made for the fact that the learned magistrate was busy and had a heavy list to discharge. Nevertheless, it does appear that the seriousness of the offending was the sole determinate for him or, if not, he has, at the end of the day, given it undue weight without a sufficient consideration of the circumstances of the offender.
…
There is another omission from the reasons of the learned magistrate which suggests that he has failed to have regard to all relevant facts in the exercise of his discretion. Section 16 of the Criminal Law (Sentencing) Act sets out the factors to which regard should be had. First, an assessment must be made whether the defendant is unlikely to offend again. Secondly, regard must be had to the alternatives listed in par (b) of s16. It is to be emphasised that they are expressed in the alternative. In my view, the magistrate has failed to have regard to the last of those alternatives, namely, whether there are extenuating circumstances which constitute a good reason for not recording a conviction. The magistrate’s reasons do not address this issue at all and thus give rise to the view that he has failed to have regard to that factor. The fact that a conviction would jeopardise the appellant’s prospects of gaining employment was, in all the circumstances, an extenuating factor which would justify not recording a conviction.
In my view, the consequences of the convictions are quite disproportionate to the seriousness of the appellant’s conduct. That conclusion stems, of course, from the fact that there is a real risk that they might jeopardise his attempt to secure employment in the new endeavour which he has undertaken. The appellant has undertaken a course of study with a view to advancing his situation in life. That has not only been a burden upon his time, but also upon his pocket. There can be little doubt that the rehabilitation of the appellant will be best achieved if he is able to gain employment in his chosen field. The appellant is aged 36 years and, as I have already mentioned, has no prior convictions. One can have a good deal of confidence in concluding that it is unlikely that he will offend again. The public interest will best be served by giving him every opportunity to pursue this new endeavour which he has chosen and which is, on any view, an advancement over his present position.
In Buttigieg,[9] Martin J, when considering whether to proceed without conviction, approved the remarks of Debelle J in MacGregor, and observed:
The impact of a conviction upon a young person hoping to improve his life by undertaking tertiary education with a view to entering the teaching profession must not be underestimated. This issue has caused me considerable anxiety but, on balance, I have decided that it is appropriate not to record convictions and to impose a penalty that will enable the appellant to get on with his rehabilitation and his future without the impediment of the convictions.
It is relevant to record that even in cases of quite serious offending, this Court has exercised its discretion to proceeding without recording a conviction. The decision in Buttigieg involved offences of break, enter and larceny, and false pretences, and in McAvaney v Quigley,[10] the Court proceeded not to record a conviction following the plea by a young man to a charge of assault occasioning actual bodily harm.
[8] MacGregor v Police (1995) 66 SASR 269 at 272-273.
[9] Buttigieg v Police (1999) 74 SASR 229 at [24].
[10] McAvaney v Quigley (1992) 58 A Crim R 457.
In the present case, I am satisfied that good reason exists to proceed without recording a conviction under the terms of either section. In the circumstances of this matter, I consider it preferable to proceed pursuant to section 39. It is appropriate that the defendant be placed on a supervised two-year good behaviour bond. The point of supervision is to ensure that the defendant to attend courses and counselling as may be directed with respect to alcohol abuse and anger management.
Having regard to the foregoing, I order that this appeal is allowed; the sentence imposed in the Magistrates Court is set aside and the bond entered into is set aside. It is appropriate to re-sentence the defendant. I am satisfied that good reason exists, as referred to in section 39 of the Criminal Law (Sentencing) Act. The defendant is discharged without conviction on his entering into a two-year supervised good behaviour bond, pursuant to which the defendant is to comply with directions as to undertaking courses and counselling with respect to alcohol abuse and anger management.
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