R v Hoffman - [2017] SASCFC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOFFMAN
[2017] SASCFC 15
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
3 March 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING MDMA (ECSTASY)
Appeal against sentence. The appellant pleaded guilty to one count of supplying a controlled substance contrary to section 33I of the Controlled Substances Act 1984. He was sentenced in the District Court to imprisonment for seven months suspended upon entering into a bond to be of good behaviour for 18 months. Whether sentenced on an erroneous factual basis - whether a term of imprisonment should have been ordered - whether a conviction should have been recorded - whether the sentence was manifestly excessive.
Held per Nicholson J (Kourakis CJ and Parker J agreeing):
1. Appeal allowed.
2. The District Court sentence set aside.
3. The appellant resentenced to a term of imprisonment for three months with a conviction recorded but with the term suspended upon entering into a bond to be of good behaviour for 13 months containing the same conditions as those in the original bond ordered by the District Court Judge.
Controlled Substances Act 1984 s 33I, s 44; Criminal Law (Sentencing) Act 1988 s 10, s 10C, s 11, s 15, s 16, s 39; Criminal Law Consolidation Act 1935 s 353; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 reg 13, referred to.
House v The King (1936) 55 CLR 499; R v Urbanski [2010] SASCFC 57, (2010) 108 SASR 369; R v Crump [2010] SASC 51; R v Becker [2005] SASC 186, (2005) 91 SASR 498; R v Nozuhur [2013] SASCFC 81, considered.

R v HOFFMAN
[2017] SASCFC 15
Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ
KOURAKIS CJ.

I agree with Nicholson J.
NICHOLSON J.
Introduction
Matthew John Hoffman, after pleading guilty to one count of supplying a controlled drug contrary to section 33I of the Controlled Substances Act 1984, was sentenced in the District Court to a term of imprisonment for seven months which sentence was suspended upon his entering into a bond to be of good behaviour for 18 months. The maximum penalty for this offence is imprisonment for ten years, a fine of $50,000 or both. The Judge arrived at the seven month term after starting at imprisonment for 12 months and then applying a 40 per cent discount[1] on account of the appellant’s early plea of guilty. There was some debate during submissions as to the appropriate level of discount given the circumstances of the plea. However, there has been no challenge on appeal by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hoffman

Details

AGLC: R v Hoffman [2017] SASCFC 15
Case: [2017] SASCFC 15
Decision Date: 3 March 2017

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant in the District Court for supplying a controlled substance, namely MDMA, contrary to section 33I of the Controlled Substances Act 1984. The appellant had pleaded guilty to the offence and was initially sentenced to seven months imprisonment, suspended on the condition that he enter into a good behaviour bond for 18 months. The appeal raised questions about whether the sentence was based on an erroneous factual basis, whether a term of imprisonment should have been ordered, whether a conviction should have been recorded, and whether the sentence was manifestly excessive.

The court was required to determine whether the original sentence was appropriate in all the circumstances, particularly in light of the potential prejudice to the appellant's future employment prospects if a conviction were recorded. The court also considered the weight to be given to submissions regarding the impact of a recorded conviction on employment, noting that offender history reports and modern employment background checks often reveal more than just formal convictions.

The Full Court allowed the appeal, setting aside the District Court's sentence. The court reasoned that while the potential prejudice to employment prospects was a factor, it was not determinative, especially given the nature of offender history reports and modern employment screening practices. The court concluded that a resentencing was necessary.

The appellant was resentenced to a term of three months imprisonment, with a conviction recorded. This term was suspended upon the appellant entering into a good behaviour bond for 13 months, with conditions identical to those in the original bond.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KOURAKIS CJ NICHOLSON J

I add, that I am not, in any event, persuaded in the circumstances of this case by the argument that a conviction should not be recorded because of the potential prejudice to the appellant’s future employment prospects. It is not necessary to develop this issue other than to observe the following. It is apparent that even where a conviction is not recorded for an offender, the offender history report still will record the offence, that it was committed and the penalty imposed. Further, modern employment practices when investigating the background of a potential employee are such that a more expansive disclosure, over and above whether the applicant has any “convictions”, is often requested. As such, the typical submission that the recording of a conviction is likely to have negative consequences for employment prospects is likely, in many cases, to be given less weight than previously has been the case.Conclusion I would make the following orders:(i)the appeal be allowed;(ii)the District Court sentence be set aside;(iii)the appellant be resentenced to a term of imprisonment for three months with a conviction recorded but with the term suspended upon entering into a bond to be of good behaviour for 13 months containing the same conditions as those in the original bond ordered by the District Court Judge. I agree with Nicholson J.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ, NICHOLSON J

Full text does not contain this section.