PANELLA v Wanganeen

Case [2018] SASC 100


SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

PANELLA v WANGANEEN

[2018] SASC 100

Judgment of The Honourable Justice Peek

19 July 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Prosecution appeal against sentence.

The respondent pleaded guilty to four counts of obtaining a financial advantage for herself from the Commonwealth to which she was not entitled, contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth). It was agreed that over three years, she made 91 false declarations to Centrelink, fraudulently obtaining a total of $30,447.76.

After successful participation in the Mental Health Diversion Programme of the Aboriginal Community Court Programme, the Magistrate on sentencing declined to record a conviction and imposed a single sentence being a two-year recognizance to be of good behaviour, pursuant to s 19B(1) of the Crimes Act 1914, and ordering full reparation.

On appeal, the respondent conceded that the Magistrate was in error in imposing a recognizance without conviction and that a re-sentencing was required.

Held per Peek J (allowing the appeal):

Having regard to all of the facts and circumstances, it is appropriate to sentence the respondent to one year imprisonment and order that the respondent be released forthwith on a recognizance to be of good behaviour pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). The order for full reparation remains in force.

Criminal Code Act 1995 (Cth) s 135.2; Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA); Crimes Act 1914 (Cth) s 19B, s 20, s 16A, referred to.
The Queen v Pham [2015] HCA 39; R v Holdsworth [1993] QCA 242; Kovacevic v Mills (2000) 76 SASR 404; Director of Public Prosecutions (Commonwealth) v Milne [2001] VSCA 93; R v Cameron (1993) 171 LSJS 305, discussed.

PANELLA v WANGANEEN
[2018] SASC 100

Magistrates Appeal:  Criminal

PEEK J.

Introduction

  1. On 9 May 2017, the respondent, Glenice Anne Wanganeen, pleaded guilty to four counts of obtaining a financial advantage for herself from the Commonwealth to which she was not entitled, contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’) in that she failed to declare to Centrelink income while she was in receipt of social security payments.

  2. Upon pleading guilty, she was referred to the Mental Health Diversion Programme of the Aboriginal Community Court Programme at Elizabeth.  She participated successfully in this programme, and her final report (which constitutes a certificate under the Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA) was dated 2 March 2018.

  3. On 5 March 2018, the matter was called back on before Magistrate Broderick (and Aboriginal Elders, Tony Hughes and Kenneth Tilbrook) for sentencing. The Magistrate declined to record a conviction, and imposed a single sentence for the four counts, being a two year recognizance to be of good behaviour, pursuant to s 19B(1) of the Crimes Act

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PANELLA v Wanganeen [2018] SASC 100
Case
[2018] SASC 100
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CaseChat Overview and Summary

The case of Panella v Wanganeen involved the defendant, Panella, who was convicted of various criminal offences in the Magistrates Court of South Australia. Panella appealed against his sentence, and the Crown also filed an appeal, raising concerns about the leniency of the original sentence. The case was subsequently heard by the Supreme Court of South Australia.

The central legal issues that the Supreme Court had to decide were whether the original sentence imposed by the Magistrates Court was manifestly inadequate, and if so, what sentence should replace it. The Crown argued that the sentence was too lenient given the nature and circumstances of the offences committed by Panella. The Court had to consider the principles of sentencing, including the need for punishment, deterrence, and rehabilitation, while also balancing these with the rights of the defendant.

The Supreme Court found that the original sentence was indeed manifestly inadequate. In its judgment, the Court emphasised the seriousness of the offences, which included aggravated assault and theft. The Court considered the principles of totality and proportionality in sentencing, noting that the cumulative effect of the offences warranted a more severe penalty. The Court also highlighted the need for the sentence to reflect the community's expectations regarding the punishment of such crimes. After reviewing the circumstances, the Supreme Court imposed a new sentence that it deemed appropriate, taking into account both the gravity of the offences and the principles of sentencing.

The final orders of the Supreme Court included the quashing of the original sentence and the imposition of a new sentence for Panella, which was to be served in a correctional facility. The Court provided detailed reasoning for the new sentence, ensuring that it was proportionate to the nature and impact of the offences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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