A Southampton man fined $1,000 for assaulting a neighbour in a row over trash bags has been granted an appeal.

Charles Cope, 43, pleaded guilty at Magistrates’ Court in March to assault causing actual bodily harm.

He punched neighbour Donald Canton in January during a row over where Mr Cope was placing his trash bags.

But in Supreme Court, defence lawyer Peter Sanderson said there were mitigating circumstances and that the Magistrate’s comments reflected there could be a case for self-defence and provocation.

He argued that Mr Canton was aggressive and approached his client with his fists up in a fighting position, cornering him up so he was backed up against a flight of stairs.

Mr Sanderson also said the fine was not in the public interest and a conditional discharge would have been more appropriate.

He added that days after his client’s conviction, a law came into effect meaning that work permits would not be issued to those with convictions carrying a penalty of up to two years in prison, meaning Mr Cope’s recent permit renewal had been unsuccessful.

Justice Carlisle Greaves highlighted that he had pleaded guilty after being urged to seek legal counsel and suggested the appeal was simply to save his client’s work permit.

“You can’t get around the law,” Judge Greaves said. “Why should I do that [rule a conditional discharge] for someone so he can continue to work here?

“He can work wherever he wants to work. His permit has expired, the time has come.

“Show me the Magistrate’s sentence was excessive. He was told to seek legal counsel and he pleaded guilty.

“The only reason you’re complaining about the fine is because it puts him in jeopardy with immigration.”

Mr Sanderson said his client was badly advised and may have admitted to a lesser plea of common assault had he known about the possible implications for his work permit.

Prosecutor Nicole Smith argued that Mr Cope’s decision to maintain his guilty plea after seeking legal advice meant he had “accepted the Crown’s version of events”.

But Judge Greaves highlighted that it was not clear on the court record what Mr Cope said to the Magistrate regarding provocation after seeking legal counsel.

“Duty rests on the Magistrate to ascertain that what he has is an unequivocal plea,” Judge Greaves said. “That duty has to be manifest on the face of the record. I can’t see that duty has been satisfied. For this reason I will allow an appeal against conviction.”

The case was referred to Magistrates’ Court for a retrial.

“An appeal is allowed,” Judge Greaves said. “Conviction and sentence are quashed on the grounds that on the face of the record it was not clear that the plea was unequivocal. The Magistrate failed to clearly record the verbatim words of the appellant.”