Police v Wanganeen - [2012] SASC 237

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WANGANEEN
[2012] SASC 237
Reasons for Decision of The Honourable Justice Gray
21 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
ABORIGINALS - CRIMES BY ABORIGINALS - SENTENCE - FACTORS TO BE CONSIDERED
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY - GENERALLY
Appeals by the police from sentences imposed by a Magistrate - on 2 January 2012, the defendant committed the offence of affray - on 15 February 2012, the defendant committed three offences of aggravated assault, one offence of assault and one offence of carrying an offensive weapon without lawful excuse - the defendant pleaded guilty to all six offences - the defendant had previously been sentenced on 23 August 2011 to a term of three months imprisonment in respect of offending - that sentence had been suspended on his entry into a good behaviour bond - the offending on 2 January 2012 and 15 February 2012 was conduct in breach of the suspended sentence bond entered into on 23 August 2011 - on sentencing the defendant for the offending on 2 January 2012 and 15 February 2012, the Magistrate declined to deal with the breach of the 23 August 2011 suspended sentence bond - whether the Magistrate erred in refusing to deal with the breach of the suspended sentence bond or, alternatively, whether he erred in not granting an adjournment so that a written application for estreatment could be lodged - the defendant was an Aboriginal man - whether the defendant should be resentenced by way of an Aboriginal sentencing conference pursuant to section 9C of the Criminal Law (Sentencing) Act 1988 (SA).
Held per Gray J: Appeal allowed - the Magistrate’s remarks contained a number of errors and material inconsistencies - the Magistrate appears to have overlooked the obligation placed on him by section 58(1)(d) of the Sentencing Act to consider the revocation of the suspended sentence - the sentencing process miscarried because of the failure by the Magistrate to observe the relevant provisions of the Sentencing Act - section 9C sentencing conference held - sentences imposed by the Magistrate set aside - suspension of the sentence of 23 August 2011 revoked - term of the suspended sentence reduced to one day - defendant sentenced to a term of imprisonment of five months in respect of the 15 February 2012 offending - sentence suspended on the defendant’s entry into a good behaviour bond for a period of two years with a term as to supervision - defendant convicted without penalty in respect of the offence of affray - no order as to costs.
Criminal Law (Sentencing) Act 1988 (SA) s 9, s 9C, s 18A, s 38, s 57 and s 58, referred to.
R v Buckman (1988) 47 SASR 303; R v Wanganeen (2010) 108 SASR 463, considered.

POLICE v WANGANEEN
[2012] SASC 237

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 Police v Wanganeen

Details

AGLC: Police v Wanganeen [2012] SASC 237
Case: [2012] SASC 237
Decision Date

CaseChat Overview and Summary

The case of Police v Wanganeen involved the defendant being sentenced for various offences, including assault, carrying an offensive weapon, and affray. The police appealed the sentences imposed by the magistrate, arguing that they were too lenient. The court was required to determine whether the sentences were appropriate and, if not, to impose new sentences. The central legal issues were the appropriateness of the original sentences and the extent to which the court should consider the defendant's prospects for rehabilitation and the time already spent in custody pending sentencing.

The court examined the factors relevant to sentencing, including the nature and circumstances of the offences, the defendant's background, and the need for deterrence and rehabilitation. The court acknowledged the defendant's prospects for rehabilitation, noting that he had already spent significant time in custody on remand. The court also considered the submissions of counsel for the police, who argued that the original sentences were too lenient and that the proposed new sentences were appropriate. The court concluded that the original sentences were indeed too lenient and that a term of imprisonment was warranted, but with consideration of the time already served and the potential for rehabilitation.

The court set aside the original sentences and resentenced the defendant. The suspended sentence from an earlier date was reduced to one day. For the offences committed on 15 February 2012, the court imposed a term of imprisonment of five months, taking into account the time already spent in custody. The sentence was then suspended upon the defendant entering a good behaviour bond for two years. For the offence of affray, the court ordered a conviction without penalty. The court did not make any order as to costs.

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

GRAY J

In my view, the defendant’s prospects for rehabilitation were such that he should not be sentenced to an immediate term of imprisonment. In reaching this conclusion, I had regard to the matters set out above. I also had regard to the fact that the defendant has spent almost ten weeks in custody on remand in respect of the offending of 15 February 2012. Counsel for the police suggested that such an approach was within the sentencing discretion of the Court and, in particular, submitted that, in this event, the orders that I proposed would be appropriate orders.Conclusion Having regard to the foregoing, I allowed the appeals of the police. I set aside the sentences imposed by the Magistrate and revoked the suspension of the sentence of 23 August 2011. I ordered that the defendant be resentenced by this Court. Pursuant to section 58(4)(a) of the Sentencing Act, I reduced the term of the suspended sentence to one day. That term commenced on the day I made my orders. In respect of the four counts of assault and the count of carrying an offensive weapon without lawful excuse all committed on 15 February 2012, I sentenced the defendant to a term of imprisonment of five months. In arriving at this sentence of five months imprisonment, I had regard to the period that the defendant spent in custody pending sentencing by the Magistrate. Pursuant to section 38(1) of the Sentencing Act, I suspended the sentence on the defendant’s entry into a good behaviour bond for a period of two years with a term as to supervision. In respect of the offence of affray, I ordered that the defendant be convicted without penalty. I made no order as to costs.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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