HODGSON v POLICE No. SCCIV-01-1793 [2002] SASC 35

The Magistrate did not give any reasons for the penalty imposed. Counsel for the respondent has conceded that in failing to give reasons, the Magistrate erred and, accordingly, that I should set aside the sentence and either fix the sentence myself, or remit the matter back to the Magistrates Court for the appellant to be resentenced.

As far as I am aware, it has not been authoritatively decided that a court of summary jurisdiction necessarily errs in law by failing to give reasons for sentence on a plea of guilty. It has been determined that on a plea of not guilty, adequate reasons for the purposes of an appeal must be given for a finding of guilt or not guilty. But it is not clear whether this is the case when a defendant pleads guilty, a custodial sentence is not imposed or likely to be imposed, and the case is not one in which there is any factual dispute to be resolved as part of the sentencing process. None of the cases to which I was referred deal with such a situation.

In the present case, the Magistrate did not impose a custodial sentence, nor was there any factual dispute in the sentencing submissions which had to be resolved by him.

In saying what I have said, I have not overlooked s9(1) of the Sentencing Act. That provision provides:

"A court must, upon sentencing a defendant who is present in court-

(a) state its reasons for imposing a sentence; and

(b) cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it to be given in simple language to the defendant."

That provision applied in this case because the appellant was present in court. The effect of that provision is to be considered in the light of s9(2) which provides:

"The validity of a sentence is not affected by non-compliance, or insufficient compliance, with this section."

Does that mean that the sentence is valid but wrong in law and liable to be set aside? Or, does it mean that the sentence is valid and not liable to be set aside unless the absence of reasons is such that a court on appeal cannot properly discharge its functions, or unless the court takes the view that having regard to the sentence imposed, it was necessary for the court to give reasons?

For instance, in a simple case in which there is no dispute about the facts, the absence of reasons might not embarrass an appellate court in any way. It might be that in such a case a failure to give reasons is not an error of law and that the sentence should not be set aside unless it is excessive.

The suggestion that reasons must always be given appears to me to have been made in cases in which, generally, a custodial sentence was in issue or, alternatively, there was a factual dispute to be resolved.

The point that I have raised here, the question of the duty of a Magistrate when there is no factual dispute, no custodial sentence and the sentence itself can be regarded as a relatively modest one, is an important point of practice. It also raises an issue of principle. It is not appropriate to decide the point without full argument, which I have not heard.

In the present case, as will appear, I have heard submissions on the facts, including some material which may not have been before the Magistrate. I say 'may not' because it is not in the affidavits before me, but nearly all of it was in material which was available to the prosecutor. I suspect that it probably was put to the Magistrate.

In any event, having heard that material, I have come to the conclusion that this was a case in which the Magistrate erred. For that reason, I proceed to consider the appropriate sentence without deciding that the important point of principle which was raised on the face of the submissions.

I did consider whether the matter should be remitted to the Magistrates Court for resentencing, having regard to the fact that there are aspects of the offence not disclosed on the affidavits, which I regarded as essential for me to understand before sentence could be imposed. However, I think it preferable now that the further matters are before me, that I should sentence the appellant rather than send the matter off for further hearing before the Magistrates Court.

As far as the affidavits go, the facts before the Magistrate were very sparse. What follows is drawn from the submissions by the prosecutor and submissions on behalf of the defendant to the Magistrate, as set out in the affidavits. None of these were disputed.

The appellant is 33 years of age. She was visiting her husband in hospital. He was in a critical condition and she was experiencing "considerable stress", which is understandable. Because of this, she had omitted to take medicine prescribed for a chronic pain condition. The chronic pain made her irritable.

The victim was an eight year old child. While at the hospital, the appellant was seen to elbow the victim causing her to stagger. Somewhat later, the appellant called the victim a 'bitch' and hit her across the head twice with an open hand. As I said, the affidavits do not contain any explanation for the occurrence of the incident, and when I read the affidavits, I assumed, because nothing was said about it, that the victim had not been injured in any way.

The affidavits also state that the Magistrate was told that the victim was well-known to the appellant. The victim's mother is a close friend of the appellant and the appellant has cared for the victim over extended periods of time because of the mother's poor health. The Magistrate was told that the appellant had permission to discipline the victim.

These limited facts raise almost as many questions as they answer about the circumstances of the assault.

Finally, the Magistrate was told that the appellant lives with her husband, has no prior convictions, pleaded guilty at the first opportunity and is on a disability pension.

By s16 of the Sentencing Act, the Magistrate had power to fine the appellant without imposing a conviction if of the opinion that the appellant was 'Unlikely to commit such an offence again' and further, and I quote from sub-para (b) of the section:

(1) the character, antecedents, age or physical or mental condition of the defendant; or

good reason exists for not recording a conviction."

On the bare facts in the affidavit, the appellant would qualify for the exercise of a discretion. I accept that she is unlikely to commit such an offence again. She is of otherwise good character and her concern for her husband's health and her chronic pain are extenuating circumstances. It would not follow, just from that, that a conviction should not be recorded. The offence itself has to be considered. An unprovoked assault on a child is a significant matter. I would not regard the offence as trifling.

On the hearing of the appeal I made further inquiry of counsel for the appellant and for the respondent. As I have said, I was given further information, much of which, I suspect, must have been put to the Magistrate. However, one or two points may not have been.

First of all there was no sign of injury to the child or even of bruising. I thought all along that the elbowing was probably a relatively minor matter and it would appear, in the light of this, that the blows to the head were, as I suspected, no more than slaps.

The appellant said that she did not remember the details of the incident. At the time the appellant was staying with the victim and her mother. I mention that the appellant and her husband lived in the country. The circumstances were stressful but the appellant had nowhere else to stay. The appellant did say that the victim had been misbehaving, including swearing at the appellant. The appellant said that the victim is a child who tends to play up. The victim's mother said that she was unaware of the incident. That is open to two constructions. One is that she did not wish to get involved. The other is that the incident was relatively minor and passed unnoticed by the victim's mother.

As I have said, under the circumstances, I think that the Magistrate did err. I think this was a case which called for him to be more lenient than he was. Accordingly, it is appropriate for me to resentence and, as follows from what I have said, it is an appropriate case not to record a conviction. My reasons for so concluding are as follows.

First of all, the appellant was in a sort of parental position in relation to the victim. The victim had stayed with her frequently and, although the appellant was not responsible for her discipline generally, the appellant would have had the care of her and a responsibility to discipline her. Of course, I realise on this occasion the victim was with her mother.

I accept that at the time the appellant was under considerable stress because of her husband's critical condition and her own chronic pain. I accept that this was a momentary incident in which the appellant lashed out. I accept that she is unlikely to offend again. Her behaviour was, of course, wrong, but she is a person of otherwise good character and the offence was committed under extenuating circumstances.

I also bear in mind her plea of guilty. I also bear in mind that in all the circumstances, now that I know them, this can fairly be described as a case of excessive discipline rather than an unprovoked assault on a child with whom there is no prior relationship. I do not suggest, of course, that parental discipline is outside of the reach of the law but these circumstances put the offence into a different light.

Assaulting children is a serious matter. I am well aware of the danger of the courts approaching matters like this too casually, but the circumstances which I have set out led me to believe that this is a case in which the extenuating circumstances are quite powerful. That is why I consider that the Magistrate erred.

Finally, I should add that although I have said that I am not proceeding on the basis that the Magistrate erred in failing to give reasons, it would have been helpful had the Magistrate given reasons, albeit in a few lines, to explain why none of these circumstances alone, or in combination, persuaded him that a conviction should be recorded.

I say this because I do regard the case as an unusual one. In some cases, I think there will be no real need for the Magistrate to give reasons because it would be fairly obvious why the Magistrate would not have exercised the discretion or, alternatively, it would be a case where the giving of reasons would be unlikely to add much.

(2) That the sentence imposed by the Magistrates Court be set aside.

(3) That there be substituted an order that the defendant be found guilty, but without recording a conviction and that she be fined $500 with the same court costs and incidental amounts as were fixed by the Magistrate.