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. 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.
Child Sex Offenders Registration Act 2006 (SA) ss 3, 4, 6, 13, 20A, 44; Sentencing Act 2017 (SA) s 26, referred to.
Kentwell v The Queen (2014) 252 CLR 601; Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617; Police v Schmidt; Attorney-General (SA) v Schmidt [2018] SASC 80; Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; R v Bahrami (2020) 286 A Crim R 394; R v Ballam (2016) 126 SASR 189; Wyong Shire Council v Shirt (1980) 146 CLR 40, discussed.
AB v The Queen (1999) 198 CLR 111; Baxter v The Queen (2007) 173 A Crim R 284; Douar v The Queen (2005) 159 A Crim R 154; House v The King (1936) 55 CLR 499; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; New South Wales v Fahy (2007) 232 CLR 486; Romeo v Conservation Commission (NT) (1998) 192 CLR 431; Schiller v Mulgrave Shire Council (1972) 129 CLR 116; Swain v Waverley Municipal Council (2005) 220 CLR 517; Tame v New South Wales (2002) 211 CLR 317; The Queen v Shannon (1979) 21 SASR 442; Vairy v Wyong Shire Council (2005) 223 CLR 422, considered.

HOPKINS v POLICE
[2021] SASC 108
Magistrates Appeal - Criminal

PEEK J: Appeal against sentence - Child Sex Offenders Registration Act 2006.
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 offence
2.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 2006
This is a minor indictable offence
3.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 2006
This is a minor indictable offence
4.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 2006
This is a minor indictable offence
5.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 2006
This is a minor indictable offence
The 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.
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.
His Honour then set out in full the home detention conditions and made formal orders.
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—Object
The 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 contact
Despite 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

Section 44 of the CSOR Act provides relevantly as follows:
44—Offences of failing to comply with reporting obligations
(1)A registrable offender must not fail to comply with any of his or her reporting obligations without a reasonable excuse.
Maximum penalty: $10 000 or imprisonment for 2 years.
(1a)A registrable offender must not fail to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse.
Maximum penalty: $25 000 or imprisonment for 5 years.
(2)In determining whether a person had a reasonable excuse for failing to comply with his or her reporting obligations, the court before which the proceedings are being heard is to have regard to the following matters:
(a)     the person’s age;
(b)     whether the person has a disability that affects the person’s ability to understand, or to comply with, those obligations;
(c)     whether the form of notification given to the registrable offender as to his or her obligations was adequate to inform him or her of those obligations, having regard to the offender’s circumstances;
(d)     any other matter the court considers appropriate.
(3)It is a defence to proceedings for an offence of failing to comply with a reporting obligation if it is established by or on behalf of the person charged with the offence that, at the time the offence is alleged to have occurred, the person had not received notice, and was otherwise unaware, of the obligation.
Assessing and managing the risk of recurrent serious sexual offending
The CSOR Act risk management regime addresses inter alia the assessment and management of the risk that a person who has previously committed a sexual crime against a child may do so once again. It is to be emphasised that s 3 (reproduced above at [8]) refers to persons who “may” – not “do” – “have a propensity to commit sexual offences against children”.
The degree of risk / seriousness of risk dichotomy
The topic of the assessment and management of risk is generally addressed by the law in various different jurisdictions and contexts. One such prominent jurisdiction is that of civil proceedings for the tort of negligence with the nature of “risk” being considered in many authoritative decisions.[4]
[4] These obviously include Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 and decisions of the High Court such as (in chronological order): Schiller v Mulgrave Shire Council (1972) 129 CLR 116, Wyong Shire Council v Shirt (1980) 146 CLR 40, Romeo v Conservation Commission (NT) (1998) 192 CLR 431, Tame v New South Wales (2002) 211 CLR 317, Swain v Waverley Municipal Council (2005) 220 CLR 517, Vairy v Wyong Shire Council (2005) 223 CLR 422, Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 and New South Wales v Fahy (2007) 232 CLR 486.
One feature that the CSOR Act risk management regime and the tort of negligence jurisdiction have in common is the recognition of 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.
It is difficult to match the succinctness and clarity with which Mr Desmond Ackner QC (as he then was[5]) enunciated this basal dichotomy as counsel for the respondents on the cross-appeal in The Wagon Mound (No 2) thus:[6]
The inquiry into the foreseeability of the risk involves two steps. First, whether the risk, be it great or small, is one which was in fact, or which ought to have been, recognised. Second, if there is a recognisable risk, the inquiry must broaden into an evaluation of whether or not the actor could, consistently with his duty of reasonable care to avoid injury to his neighbour, properly disregard the risk. The first step does not involve any considerations of duty on the part of the actor to third persons but only involves a consideration of his actual or imputed state of knowledge on the bare question as to the existence or absence of any element of risk whatever. The second step involves the consideration that differing types of situations necessitate differing degrees of imminence being imported, and the more serious the nature of the damage involved if the foreseeable event should materialise, the lower will be the standard of likelihood recognised as requisite to establish negligence. The determination of negligence involves a balancing of various factors — on the one hand the gravity and imminence of the recognisable risk, and on the other hand the utility of the challenged conduct. The question cannot be reduced to one of mathematical probability alone, because the seriousness of the injury risk must at the very least be taken into account as well: Fleming on Torts (Australian), 3rd ed. (1965), p. 118.[7]
[5] Later Baron Ackner, Lord of Appeal in Ordinary and Privy Counsellor.
[6] [1967] 1 AC 617, 629.
[7] The (current) tenth edition of Fleming on Torts states at pp 134-135: “It is at the stage of considering the reasonable person’s response to a foreseeable risk that the court considers probability or likelihood as one of the factors in the balance. Generally the greater the risk the greater the responsibility or the precautions required. Not only the greater risk of injury, but also the risk of greater injury is a relative and relevant factor. The risk may vary according to the foreseeable or known characteristics of the plaintiff or of the foreseeable class to which the plaintiff belongs, such as blind people or children, or according to nature of the hazard itself, with obvious risks at one end of the scale and intrinsically dangerous things and activities at the other.” [Citations omitted]
The subsequent judgment of Lord Reid in The Wagon Mound (No 2) is well known.[8] For Australia, the law was to develop with the equally well known “Shirt calculus”[9] being formulated in Wyong Shire Council v Shirt. Mason J there stated:[10]
… [T]he tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
[8] [1967] 1 AC 617.
[9] There are some caveats concerning that term. For example, see New South Wales v Fahy (2007) 232 CLR 486, 505.
[10] (1980) 146 CLR 40, 47‑48.
The correct approach in CSOR Act proceedings
There is a difference between the “Shirt calculus” and the CSOR Act risk management regime in that the former accepts that the risk in some situations is so small, and the cost of negating it so high, that it is reasonable to ignore that risk, whereas the latter specifically deals with immoral and unlawful conduct as to which no balancing process is appropriate. Nevertheless, as the (current) tenth edition of Fleming on Torts makes clear, social inutility and illegality also form an important part of the Shirt calculus:[11]
Whether impelled by selfishness or altruism, the law will assess the value of the defendant’s conduct against the risk of harm. The actor’s private utility is rarely taken into account; but the social utility of the conduct is more readily weighed in the balance. Emergency vehicles and rescuers may take risks denied to ordinary drivers: the value of the actor’s conduct is sufficiently great to prevent the risk of harm threatened to others from being regarded as unreasonable. Further, careful deliberation may not be expected where the actor must respond quickly to a sudden emergency of another’s making.
Of course, just as the utility of the defendant’s activity deserves credit, so its disutility will be counted against the defendant. An idle, pointless or unlawful act fraught with the slightest risk may be unreasonable when the same act prompted by a laudable purpose would be excused. There is a world of difference between throwing a burning object into the street below just for the fun of it or in order to save a house on fire. [Citations omitted]
[11] Tenth edition (2011) at [7.110], page 137.
CSOR Act proceedings expressly seek to manage the risk that a person who has been previously convicted of serious offending against a child, might again commit such an offence in the future; obviously, the risk concerns conduct that is morally reprehensible and the monetary costs needed to suppress it must necessarily be expended. The proof of the relevant previous conviction enlivens recognition of the possibility that the performer of that act may have a propensity to commit sexual offences against children and leads to the imposition upon that person of various obligations under the CSOR Act, some of which are referred to in detail above.
In the present case, the known facts suggest that both aspects of risk discussed above (extent of risk and gravity of risk) are substantial. Of course, the appellant is not to be punished twice for the November 2007 offences. However, the facts and circumstances of that offending clearly establish that the appellant at that time had “a propensity to commit sexual offences against children” (the words of s 3(a) of the CSOR Act) and it is necessary to advert to that offending in some detail in order to assess both the risk of further such offending and the seriousness of his conduct in not reporting his contact with children on the five different occasions charged.
The concept of self-reporting
One aspect of CSOR Act proceedings that members of the public may have difficulty in understanding or accepting (or both) is that a number of the procedures appear to depend upon self-reporting of conduct (such as contact with a child), by the convicted person himself. An attitude of derisive questioning of the apparent naïveté of relying upon such people to report themselves is both likely and understandable.
Insofar as there is an answer to such questioning, it is twofold. The first part of the answer is that there are primary detention and supervision regimes and the self-reporting regime is an adjunct to those primary regimes.
The second part of the answer is that one can obtain meaningful compliance with a self-reporting regime, not by a naïve reliance on the “honour” of the subject of a reporting order, but rather by maintaining an indefatigable system constantly demonstrating to such persons that it is highly likely that a failure to report will eventually come to light and, most importantly, that condign punishment is consistently meted out to anyone who deliberately fails to self-report.
Therefore, for any such self-reporting system to succeed, it is vital that the aspects of both personal and general deterrence in formulating sentences for non-reporters are so prominent and consistent that persons subject to the scheme appreciate that, purely as a matter of self-interest, it is better to report than to fail to do so. Thus, in Police v Sullivan; Attorney-General (SA) v Sullivan, Hinton J observed:[12]
68. Self-evidently the object of the Act will be frustrated if a registrable offender does not assiduously discharge his or her reporting obligations. It follows that any sentence imposed for failing to meet reporting obligations must deter other registrable offenders from the temptation not to meet their statutory obligations. …
[12] [2018] SASC 11.
And in Police v Schmidt; Attorney-General (SA) v Schmidt, Hinton J further stated:[13]
120. The seriousness with which Parliament views the reporting obligations imposed by the Child Sex Offenders Registration Act generally is evident in the duty imposed upon the Commissioner of Police to give a registrable offender written notice of his or her reporting obligations and to advise them of the consequences that may eventuate if those obligations are not complied with.[14] Absent an event or condition that prevents or seriously impedes a report being made where reportable contact has occurred, the serious registrable offender and the registrable offender who have had the benefit of notice provided in accordance with s 48(1) of the Child Sex Offenders Registration Act will be hard pressed to point to anything that mitigates non-compliance. In such circumstances the serious registrable offender and the registrable offender must expect a strongly deterrent sentence.
121. The above considerations demonstrate that for offences committed contrary to s 44(1), 44(1a) and 66L(2) of the Child Sex Offenders Registration Act general deterrence attracts significant weight.
[13] [2018] SASC 80.
[14] Child Sex Offenders Registration Act 2006 (SA), s 48(1).
The course of the appeal hearing
The amended grounds of appeal are as follows:
1.The Learned Sentencing Magistrate failed to provide a sufficient discount to the appellant for his pleas of guilty.
1.1    The Learned Sentencing Magistrate applied a discount of 30% in circumstances where the appellant was entitled to up to a 40% discount.
1.2    The Learned Sentencing Magistrate failed to provide reasons as to why the appellant was only afforded a 30% discount in circumstances where he was entitled to up to a 40% discount.
2.The sentence imposed was manifestly excessive in all of the circumstances.
2.1    The Learned Sentencing Magistrate failed to give the appellant sufficient credit for the time spent in custody and on home detention for a breach of an Extended Supervision Order arising from the same conduct.
2.2    The Learned Sentencing Magistrate erred in failing to exercise his discretion to suspend the sentence.
Ground 1: Error concerning the fixing of discount for the pleas of guilty
As to this ground, counsel for the appellant submitted thus:
… [I]t’s not incumbent on the learned sentencing Magistrate to apply the maximum discount, but in circumstances where the Magistrate doesn’t intend to apply the maximum discount, reasons should be given as to why that discount wasn’t applied. In this case, the exact amount of 30% was applied which we simply don’t know why that discount was applied. Obviously that’s the next discount available pursuant to s.39 of the Sentencing Act, but we can’t speculate as to why the learned sentencing Magistrate imposed that 30% discount, whether it was that he’d forgotten he was entitled to up to 40% or intended to apply 30%, having regard to all of the various considerations in the Sentencing Act. This court simply does not know.
On the timetable of the pleas of guilty being entered in the Magistrates Court, the appellant was prima facie entitled to a discount of up to 40%. Provided that the Magistrate correctly appreciated that the appellant was in the “up to 40% band of discount”, it was within his discretion to give less than the 40% maximum in all of the present circumstances; indeed, that may well be what occurred.
However, I cannot be sure of that. The problem is that the Magistrate said nothing about the topic of discount apart from fixing a 30% discount and it is possible that his Honour may have proceeded on an erroneous basis of thinking that the appellant was prima facie entitled to a discount of only up to 30% and that he was awarding that maximum discount.
I find that ground of appeal 1.2 is made out to the extent that the Magistrate’s reasons were insufficient to make clear whether sentencing error occurred or not.
The above error does not necessarily lead to a formal resentencing
I indicated to counsel on the hearing that the above error would not lead to a formal resentencing if I were to conclude (having corrected in favour of the appellant for any errors made by the Magistrate) that on such a resentencing I would impose a sentence of the same or greater magnitude as that passed by the Magistrate.
Thus, in Kentwell v The Queen, the plurality of the High Court stated:[15]
35. … The significance to the function of the appellate court of the distinction between specific error, of any of the kinds identified in House v The King[16], and the conclusion of manifest excess or inadequacy is explained by Hayne J in AB v The Queen[17]. In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.
…
43. After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing[18], that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal’s independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. …
[15] (2014) 252 CLR 601, 615, 618 (French CJ, Hayne, Bell and Keane JJ).
[16] (1936) 55 CLR 499.
[17] (1999) 198 CLR 111 at 160 [130]. See also at 151-153 [104]-[107] per Kirby J.
[18] Douar v The Queen (2005) 159 A Crim R 154 at 178 [124]; Baxter v The Queen (2007) 173 A Crim R 284 at 287 [19] per Spigelman CJ.
The South Australian Full Court, both before and after Kentwell, has taken the same approach. As one example only, in R v Ballam, Lovell J (Kelly and Peek JJ concurring) concluded:[19]
60. The learned Judge’s sentence in my view could be described as merciful. As discussed earlier the Judge applied the wrong maximum penalty to count 1 when sentencing the appellant.
61. Applying the correct maximum penalty and after allowing a greater discount for guilty pleas I would not impose a sentence less than that imposed by the sentencing Judge. Indeed there is a reasonable argument that the sentence could be higher. However there was no cross-appeal by the DPP.
62. As I would impose a sentence no different to that of the sentencing Judge I would dismiss the appeal.
[19] (2016) 126 SASR 189, 200.
Ground 2 of appeal - the appropriate length of sentence
Accordingly, I move to the matters relating to the appropriate length of sentence here.
The submission that the Magistrate failed to take into account that the appellant had already spent about three months in custody
Upon being notified of the subject breaches, the Parole Board issued a warrant and Hopkins was arrested on 22 June 2020. He then spent two months and three weeks in custody until he was released on Home Detention conditions on 16 September 2020 (the 2¾ month period). Counsel submitted that the Magistrate failed to take into account the 2¾ month period spent in custody.

In fact, the Magistrate did specifically refer to that matter. He stated:
… 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. …
This period referred to as “three months” is in fact the 2¾ month period presently under consideration. That being so, I do not accept that it is established that the Magistrate did not take that period into account when computing the notional sentence of 12 months imprisonment (prior to reduction for the pleas of guilty).
Counsel for the appellant accepted that this may be so but submitted that the notional head sentence was really equivalent to 15 months (12 months plus the 2¾ month period) which, it was submitted, was indicative of manifest excess. However, while some credit should be given for the 2¾ month period, it must be remembered that both before and after the 2¾ month period of imprisonment, Hopkins was subject to strict home detention conditions created by an Extended Supervision Order imposed on 11 March 2020 and which does not expire until 10 March 2023. Thus, Hopkins would have been subject to those same strict conditions during the 2¾ month period had he not been arrested and spent that time in custody. Accordingly, while some allowance should be made concerning the 2¾ month period of imprisonment, it is to be compared with a period of 2¾ months spent in strict home detention conditions rather than in complete freedom. Therefore, what precise allowance should be made in such circumstances is very much in the discretion of the sentencer.
The submission that the mother of the children was present
Counts 1 and 3 referred to two occasions when Ms B (the mother of all the children) and her young male child stayed overnight with Hopkins at his home. Counts 2, 4 and 5 referred to three further occasions when Ms B and others of her children (including a young female child) visited Hopkins at his home.
Counsel first submitted to the effect that Ms B was present at each of the occasions in counts 1 to 5 and accordingly this offending was “at the lower end of the scale in terms of seriousness”. However, this submission was all but abandoned, particularly in relation to counts 1 and 3 in the following dialogue:
HIS HONOUR:    Just tell me a little bit more about these overnight stays. Now, count 1, overnight stay, what were the sleeping arrangements?
MR EY:             I don’t have those instructions.
HIS HONOUR:     The situation is that you had the accused and you had the lady in question and you had the child in question staying overnight and sleeping overnight.
MR EY:            Yes.
HIS HONOUR:    You know as well as I do that it is deplorably common, for example, in cases of domestic sexual abuse of a child that you can have just that very scenario where the woman is sleeping, the child is sleeping, the male at some stage is not sleeping, gets up and interferes with the child, right?
MR EY:            Yes.
HIS HONOUR:    All too common, and there is nothing in the facts here to preclude such a thing happening both in relation to count 1 and count 3.
MR EY:             Yes.
In fact, on subsequent consideration of the papers, it appears that the matter is even worse in that the document “Facts of Charge”[20] reveals as follows:
… (Ms B) states on 2 occasions her youngest child aged 15 months stayed overnight with the accused, on one of those occasions he was left in the care of the accused when she had to attend at the hospital for medical reasons. [Emphasis added]
[20] This document is exhibited to Mr Ey’s affidavit (marked as AE3) tendered on the appeal and was accepted by him as accurately stating the facts upon which the appellant was sentenced.
The underlined words are not a typing error. It really is the case, however ironic, that the child “was left in the care of the accused”. Thus, the person who was to have the care of the sleeping child overnight in May to June 2020, is the same person who had found a sleeping child in the middle of the night in 2007 and immediately kidnapped and raped her. The appellant was the paradigm case of the very person, or the very type of person, from whom the child was to be assiduously protected. He was the last person upon whom should be bestowed the duty of caring for the child overnight (and the potential consequences associated therewith). This would have been entirely apparent to Hopkins and yet he declined to report the matter.
The submission that the appellant is not homosexual; and therefore, although he had previously raped a 10-year-old pre-pubescent female child, he would be unlikely to molest a young male child
Following the above, counsel put a submission that the appellant is not homosexual; and therefore, although he had previously raped a 10-year-old pre-pubescent female child, he would be unlikely to molest a young male child. I have very great problems with that submission. Having read the transcript, I find that I have nothing to add to the following passage:
MR EY:            Yes, I accept there is a risk. But what was put and what I put to your Honour is that the risk is reduced where we are dealing with a male infant child as opposed to a female child. Simply because one is convicted of offences involving children does not mean they are attracted to all children of both sexes.
HIS HONOUR:    … I mean, look, you go back to the original offending. That was a
10-year-old. A 10-year-old child. You can’t say ‘Oh well, look, this man is a heterosexual male and he just, you know, fell into temptation or lost his restraint’, or so forth and so on.

This is really an asexual situation. For someone to molest or rape a 10-year-old child is not a manifestation of heterosexual excess; it’s a matter of deep psychiatric issues, if I can put it that way. So to say ‘Well, on that occasion, it just happened to be a female, a 10-year-old female, and therefore we don’t have to worry about a male child because he [Hopkins] says he’s not homosexual’ really offends me, Mr Ey. It’s against logic, it’s against psychiatric teaching, it’s against the general experience of the law. Now, you can add to your submission if you wish or you can retract it, but I am not accepting of it.
MR EY:            I don’t wish to add to it, but I don’t wish to retract it nonetheless.
HIS HONOUR:    No, well, do you see the problems with it?
MR EY:             I accept that there is still a risk to children.
HIS HONOUR:     You see, if you delineate what the risk is by reference to the previous incident, you have to say the risk is a high one if you are factoring in the nature of what actually happened on that previous occasion. So, in other words, when you are factoring in or talking about risks, you are not just looking at the question of what is the percentage chance of something like this happening again, but you are also taking into account the massive seriousness of what you are talking about.
Now, the massive seriousness of what we are talking about is self-evident, and here, we have a situation where you have got a young child being placed at the risk of interference in circumstances of an overnight stay. The mere fact that no interference took place - and I accept that no interference took place - is really none to the point in the present discussion because if interference had taken place, well, he would have been sentenced to a huge sentence, having regard to his previous behaviour before that. So forget about that. We are talking about this legislation and why it is being said that the sentence of the magistrate is manifestly excessive.
MR EY:             Yes.
HIS HONOUR:    Anyway, you continue. I don’t want to cut you short, but you need to know what my concerns are.
MR EY:             Yes. Thank you, your Honour. In terms of risk, I submit that risk was reduced, albeit I accept what has fallen from your Honour in terms of there still being an opportunity in an overnight -
HIS HONOUR:    I mean, you know, look, we all are burdened with reading case law on paedophilia in the context of liability, evidential matters, similar fact evidence, whatever. You know, we read cases and cases and cases. We also have to read cases on sentencing for paedophilia, and I am afraid to say that there are many paedophiles who attack - and I will use that word ‘attack’, I think it is a good word - both male and female children, right, end of story and so it is very hard to predict when a paedophile might do that on the next occasion. Your client is a convicted paedophile and one cannot really accept the dictates of logic of what a normal person in the community would or would not do and therefore one has to guard against the worst.
MR EY:             Yes.
The submission that the Home Detention Report is favourable
The Magistrate ordered that a Home Detention Report be furnished and one dated 11 May 2021 was compiled by Mr Mercer, a Community Corrections Officer (CCO) stationed at Noarlunga. I wish to be clear that I accept that he is an experienced CCO and has attended diligently to his duties in this matter. However, he is neither a psychiatrist nor a psychologist.
The CCO had commenced his supervision of Hopkins on 17 September 2020. He reported that there have been no problems with drug testing or with Hopkins’ attendance at scheduled appointments. The CCO stated that for this report he had: reviewed Justice Information System and Department for Correctional Services Records; spoken with Mr Hopkins; and received a risk assessment report from Forensic Psychologist Rob Elmer.
The CCO reported that:
The writer has covered the following with Mr Hopkins during supervision:
·Linking anti-social attitudes to offending behaviour.
·Identifying the positive benefits of change.
·Dealing and learning from setbacks.
·Identifying the negative consequences of not maintaining change.
·Awareness of acts leading to offending.
·Emotional precursors to risk.
·Pre-offence factors which include stress.
·Difference between effective and non effective coping strategies.
·Organising current situation and future plans to prevent substance abuse.
·Identifying situations that trigger anger outbursts.
·Identifying and understanding emotional responses.[21]
[21] Court Ordered Home Detention Report (Comprehensive) exhibited to Mr Ey’s affidavit (marked as AE9), 2-3.
With all respect, the fact that the CCO lists a number of terms which may be used by psychologists and states that “… has covered the following with Mr Hopkins during supervision …” tells me very little indeed.
It appears that the CCO and Hopkins get on well together and the CCO’s comments were largely positive. However, he did identify the following risk factors:[22]
Risk Factors
Mr Hopkins displays the following risk factors:
·Relapsing back to alcohol and other drugs to cope.
·Negative thinking patterns (awfulising, catastrophising).
·Problematic relationships.
[22] Ibid, 3.
These are red flags. They apparently refer to things that may be highly relevant and yet there is no explanation as to what it was that Hopkins said or did that prompted these comments.
In a situation such as the present, where Hopkins has committed such serious offences as recently as 2007, it is most important that a psychiatrist diagnose why the offender behaved in that manner and to institute and manage an approved treatment regime suitable for preventing further such conduct. There is no suggestion that the CCO is qualified to do this and, to be fair to him, he has never suggested that he is.
What troubles me the most is that nowhere in the material placed before the Magistrate or myself is there any explanation by Hopkins as to why he committed the kidnapping and rape. And yet, in the course of the report, the CCO reveals that Hopkins has in fact been consulting a psychologist since 18 February 2021. Thus the CCO states:[23]
Mr Hopkins currently engages with a community Forensic Psychologist Robert Elmer from Astute Psychology Services. The writer has received ongoing collateral information informing that Mr Hopkins is engaging with Mr Elmer in a positive and genuine manner. It appears he is absorbing, processing, and implementing the tools and strategies Mr Elmer has provided Mr Hopkins in order for him to live a pro-social lifestyle.
[23] Ibid, 3.
I assume that “ongoing collateral information informing …” is jargon for “Mr Elmer has told me …”. But this is merely a snippet of second-hand hearsay in circumstances where there should be a full medical report compiled by Mr Elmer.
Why such a report has not been tendered is simply unexplained (and apparently unquestioned). There does appear to be written material that has already been compiled by Mr Elmer because the CCO has copied and pasted the following passage into his report within the following passage:[24]
[24] Court Ordered Home Detention Report (Comprehensive) exhibited to Mr Ey’s affidavit (marked as AE9), 4-5.
A summary of Mr Hopkins most recent risk assessment by Mr Robert Elmer conducted on 29/04/21.
Summary of Risk Assessment
Mr Hopkins has attended regularly and engaged thoroughly with Psychological treatment over 18 sessions since initial attendance on 18/02/21.
I conducted a current risk assessment using the STABLE 2007, for Mr Hopkins on 29/04/21.
His responses on the STABLE and confirmed by clinical opinion formed during his [sic] from his eighteen clinical sessions indicated that he was at Low Risk on reoffending. His responses indicated that he had some problems on three of the subscales and he therefore gained an overall score of three (3) on the Stable which is in the Low Risk range.
These three subscales were:
1) Social Rejection / Loneliness.
This item mitigated by his employment and good relations with clients.
2) Negative emotionality.
As above and includes some vulnerability to seeing self as a victim.
3) Cooperation with supervision.
Clearly Mr Hopkins has been in breach of some conditions despite his regular attendance on his Community Corrections officer Mr Colin Mercer and good engagement with him.
Again, this says nothing as to a diagnosis; and again, there are red flags. As examples, one would like to know the basis upon which Hopkins apparently considers that he is “a victim”. And while Mr Elmer notes that “Clearly Mr Hopkins has been in breach of some conditions” it is unclear what those breaches have been because neither Mr Elmer nor the CCO inform the reader of this potentially salient material.
It is to be remembered that juries are always directed that the facts are for them and that they may reject the evidence of an expert witness, although they should not do so irrationally. It is for the Courts “to protect children from sexual predators”[25] and if that requires the rejection of inadequate medical opinion, so be it. I support the approach taken by Kourakis CJ in R v Bahrami thus:[26]
13. The respondent was examined by a psychiatrist, Dr Begg. He told Dr Begg that he was feeling very tired leading up to the loss of his employment. The respondent gave an account of marital disharmony. He denied drinking alcohol or taking illicit drugs. The respondent did not report having suffered any sexual abuse as a child, although he told Dr Begg that when he was young he had a fear of being sexually abused.
14. The respondent did not describe any sexual dysfunction in his marriage. He proffered no explanation to Dr Begg for the offending. Dr Begg thought that the offending was out of character. Dr Begg diagnosed a mild depressive disorder but excluded any major psychiatric disorder. Dr Begg suggested that the offending was reactive to the respondent’s difficult personal and employment circumstances at a time when his capacity to cope was diminished by depression. Dr Begg excluded any sadistic motive for the offending and considered that the risk of future offending was low.
15. The Judge rejected Dr Begg’s opinion. That is not surprising. The very nature of the offending is more likely to be a manifestation of serious and deeply rooted psychosexual dysfunction than a reactive depression to ordinary life events. The Judge noted in that respect the brazen nature of the offending. The Judge was plainly right to reject Dr Begg’s opinion and to reject the submission, based on it, that there was only a low risk that the respondent would re‑offend.
[25] Section 3 of the CSOR Act.
[26] (2020) 286 A Crim R 394.
His Honour’s words “a manifestation of serious and deeply rooted psychosexual dysfunction” correspond to my less elegant ex tempore expression “For someone to molest or rape a 10-year-old child is not a manifestation of heterosexual excess; it’s a matter of deep psychiatric issues …” reproduced above at [43].
Be that as it may, in Bahrami, Kourakis CJ had before him a purported medical diagnosis which he rightly rejected. In the present case, for whatever reason, I have no diagnosis at all. Rather, there is a series of comments by the CCO which may be optimistic but are also interspersed by insufficiently addressed red flags; and a second-hand sliver from the records of the psychologist Mr Elmer who has seen Hopkins over some 18 sessions since his initial attendance on 18 February 2021, but from whom no report has been tendered.
The appellant should not be given a full 40% discount for his pleas of guilty
While I accept that, first, the appellant would be entitled to up to 40% discount for his pleas of guilty on a resentencing and, secondly, that such discount should not be here reduced below the 30% to 40% band, that does not mean that I would give a full 40% discount.
As I have explained above, the need for personal and general deterrence is particularly high in the present context. Further, the prosecution case against Hopkins on the 2020 offences was strong and I again make reference to the approach taken by Kourakis CJ in R v Bahrami thus:[27]
53. … Of course, a sentencing judge may, in his or her discretion, have regard to the strength of the prosecution case. If the prosecution case is a weak one, that consideration will add further reason to reduce the sentence by a percentage at, or approaching, the maximum allowed for the stage of the proceedings in which the guilty plea is entered. The strength of the prosecution case may be a particularly important consideration in the application of s 40(5)(a) of the Sentencing Act. If the prosecution case is an overwhelming one, that consideration may cause the sentencing judge to take something less than the ‘robust’ approach encouraged in McPhee and later authorities.
…
59. It is unnecessary to elaborate on the exercise of the discretion within an applicable band. However, once it is accepted that the bands provide a yardstick as well as a maximum, it is necessary to be clear about when a reduction, by something less than the applicable band, will be appropriate. A principled identification of the class of case which necessarily calls for a substantially smaller reduction than one which falls within the band is necessary. In Shannon, Wells J explained that a guilty plea may have very little weight in sentencing offenders who are ‘defiant of all authority’ or are ‘confirmed misanthrope[s] with a dangerous proclivity towards violence’.[28] The class so identified is one in which community protection is the paramount sentencing consideration. Just as the need for community protection could deny any material reduction for a guilty plea at common law, it may justify a substantial departure from the band otherwise applicable as prescribed by s 40 and, therefore, a reduction which falls within a later band otherwise applicable to a plea in a later stage of the proceedings. The important point to make is that only if the reduction is so great that it compromises the public purposes which sentencing must serve, and community protection in particular, will it affect public confidence in the administration of the criminal law.
…
68. There was little by way of mitigation in the respondent’s antecedents. Even though this was the respondent’s first incursion into criminality, a high level of personal deterrence was also required in the respondent’s particular case because of the lack of any explanation for, or insight into, his very serious sexual offending. General deterrence demands relatively greater weight in sentencing offenders for predatory sexual offences on children in public places.
[27] (2020) 286 A Crim R 394.
[28] The Queen v Shannon (1979) 21 SASR 442 at 455 (Wells J).
Concurrent and cumulative sentences

The Magistrate alluded to the fact that there are multiple offences and simply stated: “Noting the circumstances of your breaches, I would consider that one penalty for the five breaches is called for.”
This, of course, was to do no more (and no less) than indicate that his Honour would employ s 26(1) Sentencing Act 2017 to pronounce one period of imprisonment which would reflect the particular degree of concurrency he was adopting (rather than the longer process of imposing individual sentences for each count and then attending to the degree to which such sentences should be cumulative or concurrent).
If I were to be resentencing, I would consider that the sentences on counts 1 and 3 (the overnight stay charges) should be cumulative; and that the sentences on counts 2, 4 and 5 should be concurrent both as between themselves and with the sentences on counts 1 and 3.
The appellant’s antecedents
If resentencing, I would need to have regard to Hopkins’ antecedents as being relevant to the extent to which leniency should now be afforded to him.
Prior to the November 2007 offences, Hopkins already had an extensive antecedent history. He had been convicted as an adult of inter alia: committing assault on four occasions; carrying an offensive weapon twice; damaging property twice; dishonesty offences twice; and sundry other minor matters. And while it is usual to largely put aside driving offences, it is pertinent to note that his driving history prior to the November 2007 offences included not only the repeated commission of multiple offences of speeding, driving without due care, driving unregistered and uninsured and the more serious offences of driving dangerously and driving with the prescribed concentration of alcohol, but also (and of more direct concern here) his consistently exhibited contempt of the consequent Court orders disqualifying him from driving with the commission of the offence of driving under disqualification or under suspension on some nine occasions (as well as various bail offences and estreatments of bail).
As for the November 2007 offences, Hopkins’ initial motive when breaking into the house at night was theft. He thereby committed aggravated serious criminal trespass in a place of residence equivalent to the common law crime of burglary.[29] If Hopkins’ offending had stopped with theft, that would have been one thing; human logic and reasoning can deal with offending for the motive of financial gain. The criminal courts are familiar with an infinite number of permutations of such offending and penalties can be calculated and fairly imposed in a reasonably logical and consistent fashion. However, it appears that Hopkins’ finding of the two sleeping children triggered a psychiatric reaction so powerful as to overcome, at least temporarily, his original thought of profitable theft. It is difficult to overstate the gravity of what he did. This conduct of kidnapping a young child from her home, at night, taking her some distance away, raping her twice and then abandoning her was deserving of very heavy punishment. The prescription of a maximum penalty of life imprisonment for rape and 20 years imprisonment for kidnapping confirms the underlying seriousness of such offending.
[29] Such crime is/was fundamentally inconsistent with the legitimate expectations of quiet and safe enjoyment of their home by persons and families. The continuing prescription of a maximum penalty of life imprisonment for the present equivalent statutory offence confirms that little has changed concerning both the perceived and actual seriousness of such offending.
Conclusion
I conclude that were I to resentence, I would impose a period of imprisonment that would be significantly greater than that imposed by the Magistrate (and that would remain so even if I were to give a full 40% discount for the pleas and full credit for the 2¾ month period of previous imprisonment). Having considered all factors that might militate in favour of suspension of sentence, I would not consider that there is good reason to suspend any prison sentence, particularly having regard to the high need for personal and general deterrence here. Accordingly, since there is no cross-appeal, the correct order here is to dismiss the appeal.
The appeal is dismissed.
Orders
1.The application for an extension of time within which to appeal is granted.
2.The application to amend the grounds of appeal is granted.
3.The appeal is dismissed.