Hopkins v Police - [2021] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
HOPKINS v POLICE
[2021] SASC 108
Judgment of the Honourable Justice Peek
16 September 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence.
The appellant pleaded guilty to five charges of failing to comply with reporting obligations contrary to s 44(1a) of the Child Sex Offenders Registration Act 2006 (CSOR Act) in the period from May to June 2020. Pursuant to s 26(1) Sentencing Act 2017, the Magistrate imposed one sentence of eight months and thirteen days imprisonment to be served on home detention.
The previous conduct leading to those reporting obligations involved the commission of very serious offences, including the kidnapping and rape of a 10-year-old child (the November 2007 offences) for which the appellant had been sentenced by a District Court Judge to 12 years imprisonment (before deduction for time served).
The appellant’s grounds of appeal asserted error as to discount for the pleas of guilty; and that the sentence was manifestly excessive in that the Magistrate failed to give sufficient credit for time spent in custody and in failing to exercise his discretion to suspend the sentence. There is no prosecution cross-appeal.
Held (dismissing the appeal):
1.As to ground 1, the appellant was entitled to a discount of up to 40% for the pleas of guilty. The Magistrate said nothing about discount apart from fixing a 30% discount. It is possible that he may have proceeded on an erroneous basis that the appellant was prima facie entitled to a discount of only up to 30% and that he was awarding that maximum discount. Ground of appeal 1.2 is made out to the extent that the Magistrate’s reasons are insufficient to make clear whether sentencing error occurred or not.
2.However, the above error does not necessarily lead to formal resentencing if the appellate court determines that a sentence of the same or greater magnitude as that passed by the Magistrate is appropriate. Kentwell v The Queen (2014) 252 CLR 601 and R v Ballam (2016) 126 SASR 189 referred to.
3.As to ground 2 of the appeal, the Magistrate when sentencing did refer to, and apparently took into account, the 2¾ month period that the appellant had already spent in custody. However, during that period of imprisonment the appellant was already subject to strict home detention supervision conditions; the specific allowance to be made in such circumstances is at the discretion of the sentencer.
4.The CSOR Act engages a fundamental dichotomy - the degree of risk (How likely is it that the event under discussion may occur?) on the one hand and the seriousness of risk (How serious will be the consequences if the event does in fact occur?) on the other. The present offences of non-disclosure, and particularly counts 1 and 3 which involved overnight stays, were serious offences.…

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: [2021] SASC 108
Decision Date: 16 September 2021

CaseChat Overview and Summary

In Hopkins v Police, the appellant, Alan John Hopkins, was convicted and sentenced by the Magistrate for five counts of failing to comply with his reporting obligations under the Child Sex Offenders Registration Act 2006. Hopkins appealed the sentence on the grounds of error in the discount for his guilty pleas and that the sentence was manifestly excessive, specifically that the Magistrate failed to give sufficient credit for time spent in custody and in failing to exercise his discretion to suspend the sentence. The appeal raised two key legal issues: whether the Magistrate erred in the calculation of the discount for Hopkins' pleas of guilty, and whether the sentence was manifestly excessive given the circumstances of the case.

The Supreme Court held that the Magistrate had erred in not clearly stating the basis for the discount given for Hopkins' pleas of guilty, potentially overlooking the possibility of a 40% discount. However, this error alone did not necessitate resentencing if the appellate court found that the sentence was appropriate. The court noted that the Magistrate had considered the time Hopkins had already spent in custody and had imposed a sentence of eight months and thirteen days imprisonment, reduced from twelve months to account for the guilty pleas. The court found that the Magistrate had adequately considered the need for personal and public deterrence due to the seriousness of Hopkins' breaches of the reporting obligations, especially considering the risk to children. The court also noted that Hopkins had been under strict home detention supervision during his time in custody, which was a factor the Magistrate could consider in determining the sentence.

The Supreme Court concluded that even if the full 40% discount for the guilty pleas and credit for the time spent in custody were applied, the sentence would still be significantly greater than that imposed by the Magistrate. The court found no compelling reason to suspend the prison sentence, given the high need for deterrence. Therefore, the appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Held (dismissing the appeal):

1. As to ground 1, the appellant was entitled to a discount of up to 40% for the pleas of guilty. The Magistrate said nothing about discount apart from fixing a 30% discount. It is possible that he may have proceeded on an erroneous basis that the appellant was prima facie entitled to a discount of only up to 30% and that he was awarding that maximum discount. Ground of appeal 1.2 is made out to the extent that the Magistrate’s reasons are insufficient to make clear whether sentencing error occurred or not.

2. However, the above error does not necessarily lead to formal resentencing if the appellate court determines that a sentence of the same or greater magnitude as that passed by the Magistrate is appropriate. Kentwell v The Queen (2014) 252 CLR 601 and R v Ballam (2016) 126 SASR 189 referred to.

3. As to ground 2 of the appeal, the Magistrate when sentencing did refer to, and apparently took into account, the 2¾ month period that the appellant had already spent in custody. However, during that period of imprisonment the appellant was already subject to strict home detention supervision conditions; the specific allowance to be made in such circumstances is at the discretion of the sentencer.

4. The CSOR Act engages a fundamental dichotomy - the degree of risk (How likely is it that the event under discussion may occur?) on the one hand and the seriousness of risk (How serious will be the consequences if the event does in fact occur?) on the other. The present offences of non-disclosure, and particularly counts 1 and 3 which involved overnight stays, were serious offences. The need for personal and public deterrence was high.

5. A Home Detention Report dated 11 May 2021 was compiled by a Community Corrections Officer who was neither a psychiatrist nor a psychologist. It appears that the appellant has been consulting a psychologist since 18 February 2021 but no diagnosis of the mental state of the appellant as at the time of the November 2007 offences (or at present) or any formal report was furnished (with only a short passage from one assessment by the psychologist being referred to by the Community Corrections Officer). R v Bahrami (2020) 286 A Crim R 394 referred to.

6. If the Court were to resentence, it would impose a period of imprisonment that would be significantly greater than that imposed by the Magistrate (and that would remain so even if a full 40% discount for the pleas and full credit for the 2¾ month period of previous imprisonment were given). There is not good reason to suspend any prison sentence, particularly having regard to the high need for personal and public deterrence here. Accordingly, the correct order is to dismiss the appeal.

7. The appeal is dismissed.

Background

Background to the litigation

Mr Alan John Hopkins (Hopkins or the appellant) was born on 25 November 1979 and is now 41 years old. He pleaded guilty to five charges of offences committed in a period of about three weeks from May to June 2020 (the 2020 offences) contrary to s 44(1a) of the Child Sex Offenders Registration Act 2006 (the CSOR Act). They appear in the Information as follows:1.On the 28th day of May 2020 at ADELAIDE in the said State,being a registrable offender without reasonable excuse failed to comply with a reporting obligation relating to reportable contact with a child.Section 44(1a) of the Child Sex Offenders Registration Act 2006 This is a minor indictable offence2.On the 30th day of May 2020 at ADELAIDE in the said State, being a registrable offender without reasonable excuse failed to comply with a reporting obligation relating to reportable contact with a child.Section 44(1a) of the Child Sex Offenders Registration Act 2006This is a minor indictable offence3.On the 6th day of June 2020 at ADELAIDE in the said State, being a registrable offender without reasonable excuse failed to comply with a reporting obligation relating to reportable contact with a child.Section 44(1a) of the Child Sex Offenders Registration Act 2006This is a minor indictable offence4.On the 12th day of June 2020 at ADELAIDE in the said State, being a registrable offender without reasonable excuse failed to comply with a reporting obligation relating to reportable contact with a child.Section 44(1a) of the Child Sex Offenders Registration Act 2006This is a minor indictable offence5.On the 18th day of June 2020 at ADELAIDE in the said State,being a registrable offender without reasonable excuse failed to comply with a reporting obligation relating to reportable contact with a child.Section 44(1a) of the Child Sex Offenders Registration Act 2006This is a minor indictable offenceThe background to the present offending - the November 2007 offences The previous conduct which led to the imposition of Hopkins’ obligations to comply with reporting obligations under the CSOR Act was the commission on 3 November 2007 of a suite of the most serious criminal offences (the November 2007 offences). At that time, he was aged 27 and this marked a most serious change in the nature of his criminal behaviour.[1] When later sentencing him to 12 years imprisonment[2] on 28 January 2010, District Court Judge Lovell (as he then was) summarised the November 2007 offences thus: Allan John Hopkins, you have pleaded guilty before me on 15 July 2009 to one count of aggravated serious criminal trespass in a place of residence, one count of kidnapping and two counts of unlawful sexual intercourse with a person under the age of 14 years.In the early hours of the morning of 3 November 2007, you broke into the house of T with the intent of stealing a handbag that you had seen slung over a chair when you had looked through the window. Whilst in the house, you had noticed and formed the intention to take a flat screen TV. You took possession of the bag and, as you were inside the house, you stumbled on a mattress that had been placed on the floor. The victim in this matter and her young friend were sleeping on the floor on the mattress. She awoke and you put your hand over her mouth, grabbed her and fled from the house.Once outside the house, you made her walk to a nearby school and in a secluded spot in the school grounds you sexually assaulted her by digitally penetrating her vagina. At the time of the offending, she was 10 years old. You performed that sexual act on two occasions.The maximum penalty for the first count of aggravated serious criminal trespass in a place of residence is life imprisonment. For the charge of kidnapping, the penalty is 20 years imprisonment. I note it was not an aggravated offence. For unlawful sexual intercourse of a person under the age of 14, the maximum penalty is imprisonment for life.The victim said that you carried her in your arms and ran out of the house with your hand over her mouth and that when you got to the corner outside the house you put her down. You then grabbed her neck from behind and told her to walk. You walked into the school, told her to pull her pants down and that is when you started the sexual offending. Having committed one of the unlawful sexual intercourse offences you told her to pull her pants back up and you started walking to another area. You then told her to take her pants down and you again performed an act of digital intercourse. Having performed that, you then ran off and left her near the school. You left her, the victim, who was only aged 10, to make her own way back to the house in the dark.Later, you attempted to access an ATM with the credit cards that you had stolen and your photograph was taken. Your picture was published in the media and you attended the police station voluntarily. You told the police, in effect, that you had not committed any of the offences other than that of trying to use the credit cards and you gave the excuse that you had found the wallet with the credit cards in them.[1] His then antecedents are referred to below.[2] Before deduction for time served.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Immediately following these crimes, Hopkins exhibited no contrition. To the contrary, he attempted to use a credit card in the stolen handbag to withdraw money from an ATM. When later approached by police, he told a series of lies entirely denying the kidnapping and rape. Ultimately, he pleaded guilty in the face of a compelling circumstantial evidence case constructed by the investigating police officers. The Magistrate’s judgment and reasons The Magistrate convicted Hopkins of the 2020 offences and imposed one sentence of eight months and thirteen days imprisonment to be served on home detention. His reasons were as follows:Mr Hopkins, you have entered guilty pleas to five counts of failing to comply with your reporting obligations. The maximum penalty for each of those five counts is a fine of up to $25,000 or imprisonment for up to five years. The basis of your offending is that you were under reporting obligations, having been sentenced by Judge Lovell in January 2010 in respect of certain offences. One of your obligations was to report any contact with children to the police within two days. You had contact with children through a relationship in which you were involved, and you failed to report that contact within the time specified by your reporting obligations.The circumstances of your offending are somewhat unusual in that you entered into a relationship with a woman who had children. She brought some of her children over to your premises, and in fact allowed one of them to stay overnight. You appreciated your obligation to tell her about the convictions, and in fact did ultimately tell her about your obligations. Despite that she continued with the relationship with you. Clearly, she was not greatly concerned about the obligations and your prior convictions. That does not diminish your responsibility to report the contact to the police.These obligations are put in place for an obvious reason, and in my view it is the court’s responsibility to ensure that the obligations are met and that any failure to comply with those obligations is met with condign punishment. A court owes a duty of care to protect the public as set out in the Sentencing Act. Clearly children fall within that category. In my view it is incumbent upon the court to impose a sentence which carries a significant deterrent aspect, not only to deter you from being involved in this type of offending in future and to ensure that you comply with your reporting obligations, but also one that sends a message to the community and others who are subject to reporting obligations that failure to meet those obligations will be severely punished.Having said that, I note the circumstances in which these offences were committed. I also have regard to your personal circumstances. You are forty-two years of age. You are currently on an extended supervision order and have been since March 2020. You were released on 16 September 2020 for breach of the supervision order after having been on home detention for three months. You were aware of your registrable status. You were in a relationship with the woman concerned. When she became aware of your registrable status she asked you not to report it because she was subject to a Care and Protection Order. That influenced you to not report these matters to police within the time required. The female child, who is aged six years, was at your premises for only a short time. As a consequence of your arrest and being charged with these offences, you spent three months in custody. At the time I heard submissions you were residing with your mother, and you were then engaged in a landscaping course.In my view, having heard the submissions and having read the material that has been provided to me, your offences are not so much borne out of sinister intentions to hide your obligations but out of a mixture of circumstances which caused you to be slack in your observations of the reporting conditions. I do not consider that it is likely you will commit this type of offence again. I have had the benefit of a home detention report which sets out your circumstances and also reports on your compliance with your current home detention conditions. The report is very favourable with respect to your compliance with your obligations under the home detention order and also your motivation to change your behaviour and live a law-abiding life. You have goals and ambitions for the future, and you have shown what has been called a firm commitment to change. The report suggests that an immediate term of imprisonment would have an adverse effect upon your rehabilitation. In my view that is something I can take into account when considering what should be the ultimate order in respect of this matter.Having regard to the seriousness of the obligations and the need to ensure that those obligations are met, it is my view that an imprisonment sentence is called for in respect of these matters. Nothing other than an imprisonment sentence would send an adequate message to either you or the community about your need to comply with these obligations.Noting the circumstances of your breaches, I would consider that one penalty for the five breaches is called for. You are convicted on all counts. In the circumstances I would have imposed a sentence of twelve months imprisonment. I reduce that to eight months and thirteen days imprisonment to give you credit for your guilty pleas. Noting the contents of the home detention report, noting the diligence with which you have met your current home detention conditions, noting my opinion that you are unlikely to commit this type of offence again and noting that there are suitable premises at which you can serve your sentence by way of home detention, in my view it is appropriate to order that the sentence that I have handed down be served on home detention.

Ratio Decidendi

Legal Principle Established

The appellant appeals against that sentence on the basis of error as to discount for the pleas of guilty; and that the sentence was manifestly excessive in that the Magistrate failed to give sufficient credit for time spent in custody and in failing to exercise his discretion to suspend the sentence. The full amended grounds of appeal appear below at [26]. There is no prosecution cross-appeal. The Child Sex Offenders Registration Act 2006 The CSOR Act is a long and detailed statute which introduces what I will refer to as the CSOR Act risk management regime. Its object and areas of application are clearly (and bluntly) stated at the outset as follows:3—ObjectThe object of this Act is to protect children from sexual predators by—(a)requiring certain persons who may have a propensity to commit sexual offences against children to keep the Commissioner of Police informed of their whereabouts and other personal details for a period of time—(i) to reduce the risk of such offences being committed; and(ii) to facilitate the investigation and prosecution of any offences that are committed; and(b) preventing such persons from engaging in child-related work. Section 20A of the CSOR Act provides:20A—Report of reportable contactDespite any other provisions of this Act, if a registrable offender has reportable contact with a child, he or she must report the details of that contact to the Commissioner within 2 days of such contact occurring. “Registrable offender” is defined by s 4 as having “the meaning set out in section 6”, which provides:6—Who is a registrable offender?(1) Subject to this section, a registrable offender is a person—(a)whom a court has at any time (whether before, on or after the commencement of this section) sentenced for a class 1 or class 2 offence[3]; or(b)who is, or has been, subject to a child sex offender registration order.[3] The class 1 and class 2 offences referred to in s 6(1)(a) are dealt within Schedule 1 – Class 1 and 2 offences. Class 1 (that involved in the present case) is the more serious of the two classes; the crimes of kidnapping and rape are specifically stated to fall within Class 1 at clause 2(c) and (d) of Schedule 1. “Reportable contact” is defined by s 4 as having “the meaning set out in section 13(4)” which relevantly provides:(4) For the purposes of this section, a person has reportable contact with a child—(a) if—(i) the person has contact with the child consisting of—(A)any form of physical contact or close physical proximity with the child; or(B)any form of communication with the child (whether in person, in writing, by telephone or other electronic device); and(ii) the contact with the child—(A) occurs in the course of—•the person or the child visiting or residing at a dwelling (whether the person and the child are alone or with others); or•the person (whether alone or with others) supervising or caring for the child; or(B)involves the person providing contact details to the child or obtaining contact details from the child or otherwise inviting (in any manner) further contact or communication between him or her and the child; The presently relevant offence provisions