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 237Magistrates Appeal
GRAY J.
These are appeals by the police from sentences imposed by a Magistrate.
Introduction
On 2 January 2012, the defendant and respondent, Jason Lewis Wanganeen, committed the offence of affray. Following his plea of guilty, he was sentenced on 27 April 2012 to a term of imprisonment of 14 days. This sentence was suspended on his entry into a good behaviour bond.
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. All of the offences arose out of the one incident.
The offences committed both on 2 January and 15 February 2012 were before the Magistrate.
Following his pleas of guilty, the defendant was sentenced on 27 April 2012 pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), apparently in respect of all offences committed on 15 February 2012, to the one term of imprisonment of five months. This sentence was suspended on his entry into a good behaviour bond.
On 23 August 2011, the defendant was sentenced to a term of three months imprisonment in respect of offending, including the offence of common assault. That sentence was suspended on his entry into a good behaviour bond. The offending of the defendant on 2 January 2012 and 15 February 2012 was conduct in breach of the suspended sentence bond entered into on 23 August 2011.
When the matter came on before the Magistrate on 27 April 2012, the defendant was present and legally represented. The police prosecutor submitted that the Magistrate should deal with the breach of the 23 August 2011 suspended sentence bond. The Magistrate declined to do so as there was no written application for estreatment of that bond. The prosecutor then applied for an adjournment so that he could lay an application for estreatment of the bond. The Magistrate declined to grant an adjournment. The Magistrate then proceeded to sentence the defendant in respect of all of the 2012 offending in the terms set out above.
A primary question arising on the within appeals is whether the Magistrate erred in refusing to deal with the breach of the suspended sentence bond of 23 August 2011 or, alternatively, whether he erred in not granting an adjournment so that a written application for estreatment could be lodged.
Magistrate’s Remarks, Errors and Inconsistencies
The Magistrate provided remarks as to sentence. These remarks, however, only addressed the offences committed on 15 February 2012. The Magistrate’s remarks contained a number of errors and material inconsistencies. For example, he commenced by recording that the defendant pleaded guilty to five counts of aggravated assault. Later, he made reference to three counts of aggravated assault and to the offence of carrying an offensive weapon. However, at no time did he make reference to the count of basic assault.
When imposing sentence, the Magistrate indicated that he proposed to impose the one penalty pursuant to “Section 18A of the Evidence Act”.[1] When dealing with the pleas, the Magistrate remarked “I will take into account with respect to count 1 at least that you pleaded guilty.” The Magistrate makes no reference to the pleas of guilty in respect of the other counts. It is to be understood that the remarks were made ex tempore in the course of a busy list. However, when regard is had to the Magistrate’s remarks overall, an impression is left that the sentencing discretion miscarried.
[1] I assume the Magistrate intended to refer to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), rather than the Evidence Act 1929 (SA).
The Magistrate’s remarks make no reference at all to the offence of affray. A term of imprisonment of 14 days was imposed and an order was made suspending that sentence. It is important that Magistrates imposing terms of imprisonment should provide sentencing remarks. There is a statutory obligation to do so. Section 9 of the Sentencing Act provides:
(1) A court must, upon sentencing a defendant who is present in court—
(a)state its reasons for imposing the 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.
(2)The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
Authorities of this Court have repeatedly pointed out the importance of remarks to be made by a sentencing Magistrate, both so that the defendant may understand the remarks and so that an appeal court can properly perform its functions.
Estreatment of Suspended Sentence Bond
It is also important to closely examine the Magistrate’s remarks in regard to the prosecutor’s application for estreatment of the 23 August 2011 suspended sentence bond. In that respect, the Magistrate observed:
I will take into account with respect to count 1 at least that you have pleaded guilty. Notwithstanding well knowing that your partner was thoroughly unlikely to give evidence against you and for that you should receive some strong acknowledgment and I will take that significantly into account. You have not hidden behind what sometimes gets called ‘the cowards castle’ imposing on the victim to not proceed with the charges. So you are to be congratulated for that and given credit for that. There is not much credit that can be garshed from the other offences though and you do have a history of violence, including a suspended sentence. Prosecution may or may not give cause to revoke that period of imprisonment that was previously suspended for not dissimilar offending. That is a matter for them and not for me.
I can take that previous conviction into account in determining whether or not any leniency ought to be extended today or not to impose a penalty today that in a defacto means that punishes you again for that prior offending. I do not take it into account in that way. Police are at complete liberty to decide what to do about that at a later time.
[Emphasis added.]
These observations of the Magistrate demonstrate a misunderstanding of proper sentencing practice. It was important that the defendant be sentenced in respect of all outstanding matters on the one occasion. There was little or no point in sentencing the defendant to a suspended term of imprisonment and to leave the issue of estreatment to be dealt with on a later occasion. It was a matter of aggravation that the 2012 offending was committed in breach of the terms of the suspended sentence bond. It was important in addressing an application for estreatment to have regard to the circumstances of the original offence and the breaching offences.
The Magistrate was in error in refusing to have regard to a matter of aggravation. The defendant’s offending both on 2 January and 15 February 2012 was committed in breach of his suspended sentence bond. It follows that the Magistrate failed to have regard to a material matter when sentencing. For this reason alone this Court is obliged to consider the whole matter afresh.
The need for the Magistrate to address the issue of the breach of the suspended sentence bond is supported by the terms of section 58 of the Sentencing Act which relevantly provides:
(1) Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
...
(d) if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
…
(3)Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court—
(a) may refrain from revoking the suspension; and
(b) may—
(i)—
(A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
(B)in the case of a bond requiring performance of community service—
• extend the period within which any uncompleted hours of community service must be performed by not more than 6 months; or
• if the period within which the community service must be performed has expired, impose a period of not more than 6 months within which any uncompleted hours of community service must be performed; or
(C)cancel the whole or a number of any unperformed hours of community service; or
(D)revoke or vary any other condition of the bond; or
(ii) if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year.[2]
[2] I note that section 58(3) was amended on 5 August 2012, after the dates of the offences and sentencing. At the time of the offending and sentencing, section 58(3) provided:
Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court—
(a)may refrain from revoking the suspension; and
(b)may—
(i)—
(A) extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
(B) in the case of a bond requiring performance of community service, extend, by not more than six months, the period within which any remaining hours of community service must be performed; or
(C) cancel the whole or a number of any unperformed hours of community service; or
(D) revoke or vary any other condition of the bond; or
(ii)if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year.
(4)Where a court revokes the suspension of a sentence of imprisonment, the court—
(a)may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
(b)may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(ba)may, in the case of a bond with a home detention condition, direct that the period of compliance by the probationer with that condition be counted as part of the term of the suspended sentence;
(c)may direct that the suspended sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
(5)Where a court other than the probative court sentences a probationer for the original offence, the court cannot impose a sentence that the probative court could not have imposed.
There was no difficulty in the estreatment application being dealt with on 27 April 2012. If the Magistrate was properly concerned that there be a written application, the matter could have been stood over in the list to enable the document to be prepared and the matter could then have proceeded later in the day. The defendant was present and legally represented. If the defendant had then sought an adjournment, that could have been be readily accommodated. The Magistrate’s decisions to refuse to deal with the estreatment and to refuse an adjournment were flawed.
Estreatment – Before the Court
Counsel for the police submitted that, in the circumstances, the Magistrate should not have proceeded to sentence the defendant and all but ignore the fact of the previously suspended sentence. In so doing, the Court, it was said, failed to have adequate regard to the terms of section 57 of the Sentencing Act. That section relevantly provides:
(1)If it appears to a probative court, by evidence given on oath, that a probationer may have failed to comply with a condition of the probationer’s bond, the court may—
(a)—
(i) issue a summons to the probationer requiring the probationer to appear before the court at the time and place specified in the summons; or
(ii) issue a warrant for the probationer’s arrest; and
(b)issue a summons to any guarantor.
(2)If a person fails to appear before the court as required by a summons issued under this section, the court may issue a warrant for the person’s arrest.
(3)Where a person is arrested pursuant to a warrant issued under this section, the person must be brought before the probative court or the Magistrates Court not later than the next working day and may be remanded in custody or released on bail pending determination of the proceedings.
(4)If a probationer is found guilty of an offence by a court of a superior jurisdiction to that of the probative court, being an offence committed during the term of the bond, any proceedings for breach of condition arising out of the offence are to be taken in the court of superior jurisdiction.
(4a)If a probationer is found guilty of an offence by a court of an inferior jurisdiction to that of the probative court, being an offence committed during the term of the bond, the court of an inferior jurisdiction must—
(a)sentence the probationer for the offence and remand him or her to the probative court to be dealt with for breach of the conditions of the bond; or
(b)remand the probationer to the probative court to be sentenced for the offence and dealt with for breach of the conditions of the bond.
(5)The court dealing with a probationer for breach of condition must hear any evidence adduced tending to establish that the probationer has failed to comply with a condition of the bond and any evidence or representations that the probationer may wish to adduce or make in reply.
Section 57 requires evidence given on oath, but only for the purpose of bringing a probationer before the Court. In the present proceedings, the probationer, the defendant, was already before the Court, having pleaded guilty to offences committed in breach of the suspended sentence bond of 23 August 2011. The Court was aware of the existence of the bond of 23 August 2011 and should have proceeded in accordance with section 57(5) of the Sentencing Act and heard any evidence adduced tending to establish that the probationer had failed to comply with a condition of the bond. However, in the present proceedings evidence of the breach was not needed. Breach was not in issue.
Counsel for the defendant submitted that it was a clear intention of section 57 to require that proceedings be taken in relation to the breach of bond substantiated by evidence on oath, so that the person said to be in breach is properly before the Court in their capacity as a probationer and is to be dealt with as such.
It may be accepted that the procedure of making a written application for estreatment and for proceedings to be taken to bring the probationer to court may often be the appropriate procedure. The question is whether such a process is mandatory. In the present proceeding, the defendant was before the Court. He was the probationer. He was legally represented. The Court was aware of the suspended sentence and the Court was aware that it was the prosecution case that the defendant’s conduct breached the terms of the suspended sentence bond. In these circumstances, for the reasons that follow, the matter could have proceeded then and there without the need for a written application for estreatment of the proceedings to be taken to give the defendant notice and to bring the defendant to Court in his capacity as probationer. If any prejudice arose to the defendant because of late notice of the prosecution application, then an adjournment could have been sought and, if appropriate, granted.
The fact of the suspended sentence bond was a matter of record and was drawn to the attention of the Magistrate. The pleas of guilty to offences in breach of the bond were also a matter of record and known to the Magistrate. The Magistrate could not be other than satisfied that there had been a breach of the bond. The Magistrate was thus bound to revoke the suspension, unless the breach was trivial or there were grounds upon which the failure to comply with the bond could be excused. On the hearing of the appeal, it was accepted that the defendant was in breach of the suspended sentence bond.
In the circumstances, while the police applied for an adjournment for the purposes of bringing an application, there was no reason why the Court could not have then and there proceeded to deal with the defendant for a breach of the bond. If the defendant wished to make submissions on the issue or wished to call evidence, then the Court could have, if necessary, accommodated this situation by adjourning.
In any event, at the very least the Magistrate should have held the matter in the list so that a written application could be issued. No doubt if the matter had have been adjourned, such application could have been immediately prepared and served. There was no suggestion by the defendant that if that had have occurred there would have been any application for an adjournment. The Magistrate’s failure either to proceed on the oral application or to adjourn the matter in the list has led to the defendant having been sentenced without regard to all relevant matters. This was neither in the interests of the defendant, nor the community.
In the circumstances, the sentencing process miscarried because of the failure by the Magistrate to observe the relevant provisions of the Sentencing Act. The Magistrate appears to have overlooked the obligation placed on him by section 58(1)(d) of the Act to consider the revocation of the suspended sentence. The fact of breach of the suspended sentence was a matter of aggravation. Contrary to the Magistrate’s assertions in his remarks on penalty, this was a matter for him to address and not just a matter for the prosecution to consider at a later time. As King CJ pointed out in Buckman:[3]
There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.
Jacobs J, in the same case, noted that the statutory provisions – as then contained in section 9 of the now repealed Offenders Probation Act 1913 (SA), but the same as section 58 for all relevant purposes – were “sequential and complementary, and clearly dictate the proper judicial approach”.[4]
[3] R v Buckman (1988) 47 SASR 303, 304.
[4] R v Buckman (1988) 47 SASR 303, 307.
For these reasons, the appeals should be allowed and the defendant resentenced.
Resentencing
The circumstances of the affray on 2 January 2012 were that the defendant threatened and used unlawful violence towards others such as to cause reasonable persons to fear for their safety. An incident between the defendant and his female partner was observed on a security video camera in the vicinity of the Adelaide Convention Centre. Both were observed to be slapping and punching each other and, at one point, the defendant forcefully pushed his partner’s head against the side of a nearby parked taxi. Two taxi drivers then challenged the defendant who behaved in an aggressive and abusive manner toward them. The defendant’s partner left the scene. A security guard then approached the defendant who behaved aggressively toward the guard and subsequently left the scene. The police arrived shortly thereafter and located and arrested the defendant.
The circumstances of the offending occurring on 15 February 2012 also involved an altercation between the defendant and his partner. It was agreed that the offence was occasioned by the defendant threatening his partner with a metal pole. A passerby driving in the vicinity stopped to lend assistance and he too was threatened by the defendant with the pole. This passerby then went to a nearby house and requested the resident, his brother, to come and assist. Both men approached the defendant and were again threatened by the defendant with the pole. Another person in the vicinity also attempted to intervene. He too was threatened and warned not to get involved. The defendant’s partner refused to provide a statement to the police and failed to attend a later appointment with the police.
Information about the circumstances of the offending giving rise to the 23 August 2011 suspended sentence is limited. The sentence was imposed in respect of a theft, a basic offence of assault, disorderly behaviour and resist police. Apparently the assault involved conduct towards the defendant’s female partner. It is to be noted that it was not an aggravated offence.
Antecedents
The defendant’s criminal antecedents extend over several decades and include a number of offences involving violence. In the past, sentences of imprisonment have been imposed. The further offences involving violence would, in the ordinary course, warrant the imposition of further terms of imprisonment. This much was accepted by the defendant.
Evidence before the Court suggested that the defendant’s personal antecedents allowed the conclusion that he had excellent prospects for rehabilitation. It was explained that his earlier criminal conduct first arose from his involvement with the wrong peer group as a young indigenous male. This was compounded by the abuse of illegal substances and alcohol. The most recent offending arose through disputes between the defendant and his female partner. That relationship has now ended and the defendant’s partner has returned to Western Australia, her home State.
The defendant has been employed in positions of some responsibility in the past. In particular, he has worked as a manager with Coles Supermarkets over some years. It is unfortunate that his aberrant behaviour led to the cessation of this employment.
Section 9C Conference
Counsel for the defendant requested that, pursuant to section 9C of the Sentencing Act, I conduct an Aboriginal sentencing conference. I agreed to do so. The attendees included an Aboriginal Justice Officer from the Courts Administration Authority, an Aboriginal elder, a long term friend of the defendant’s family and two persons associated with Kornar Winmil Yunti Aboriginal Corporation. This body provides assistance to Aboriginal men through a 20 week program.
In Wanganeen,[5] I conducted a detailed review of section 9C. I incorporate by way of reference in these reasons my observations concerning the purpose of the provision, its interpretation and application.[6] However, I consider that the following matter is of particular relevance to the within proceeding:[7]
[5] R v Wanganeen (2010) 108 SASR 463.
[6] R v Wanganeen (2010) 108 SASR 463.
[7] R v Wanganeen (2010) 108 SASR 463, [19]-[21].
Significantly, the convening of a sentencing conference pursuant to section 9C does not alter the process to be undertaken with respect to sentencing generally. In particular, the matters outlined in section 10 of the Sentencing Act are still relevant to the consideration of an appropriate sentence to be imposed. In this manner, the enactment of section 9C still aligns with the views of the Court expressed in Neil and Tjami as earlier discussed. However, the conference is significant as it allows the sentencing process to occur in a manner more suited to the cultural needs of Aboriginal offenders. These matters were discussed in the second reading speech as follows:
Using a sentencing conference procedure does not change the matters to which a court must have regard when determining sentence under section 10 of the Criminal Law (Sentencing) Act 1998 or any other aspect of sentencing. It is just a way of informing the court and the defendant, and his or her community, about matters relevant to sentence in a more comprehensive and understandable way than is possible using standard procedures.
The first section 9C sentencing conference to be convened in the Supreme Court was held in 2008. In the course of his sentencing remarks, Anderson J agreed with the Aboriginal justice officer’s assessment of the purpose of the conference, namely:
…to allow an offender an opportunity to elaborate on the circumstances of the offending; to hear the stories from the victim and the victim’s families on how the offence has impacted on them; to find out the issues relating to why an offender committed the offence; to put in place strategies to address those issues and to rehabilitate the offender so that person does not re-offend in the future. …
These objectives accord with the second reading speech and the manner in which the Nunga Courts were traditionally conducted.
Ultimately, a section 9C sentencing conference allows the defendant an opportunity to speak directly to the court and have his or her say. It further allows the victim to contribute in the sentencing process. This may provide restorative justice opportunities for the victim and defendant. The sentencing conference may enable the court to better understand the cultural and societal influences relevant to the defendant’s offending. The involvement of an Aboriginal elder, family members and the wider community may further assist the defendant in desisting from the offending, including by elements of shaming from key respected community members, but also by assisting the defendant to realise the impact of the crime on their family and the community.
[Footnotes omitted.]
I also considered the use of matters arising at the section 9C conference in the later sentencing process and in this respect observed:[8]
It is to be noted that the legislative provisions do not provide any indication as to the precise use that can be made of the submissions and the views expressed at the sentencing conference. Section 9C(1)(b) merely specifies that the court may take into consideration views expressed at the conference.
Counsel for the prosecution submitted that counsel for the defence ought to provide written submissions outlining the information arising from the conference, said to be relevant to the defendant. It was contended that defence counsel ought to make it clear to the court the purpose for which particular information is sought to be used for sentencing purposes. It was suggested that those written submissions could be provided in advance of formal sentencing submissions, at which point, the prosecution would be entitled to make submissions on whether it opposed any suggested uses of the information.
The use of the information arising from the sentencing conference is within the discretion of the court. Section 9C does not limit the manner in which the court may take into consideration the views expressed at the conference. However, the use of the information arising and views expressed, is limited to the parameters outlined by section 10 of the Sentencing Act.
As with sentencing in the ordinary course, it is within the court’s discretion to assess the weight to be given to any factor in any given case. The views expressed at the sentencing conference may provide the information supporting any of the section 10 factors. Consequently, those views are, within the discretion of the court, relevant to sentencing. I reject the contention of counsel for the prosecution that it is incumbent upon counsel for the defence to provide written submissions outlining how they seek to use the information arising for sentencing purposes. Such a process may be followed, but it should not be mandated. How that information is sought to be used will generally be clear from the sentencing submissions ultimately made, and is a matter for the discretion of the court.
[Footnote omitted.]
Both parties agreed that the above observations should guide my approach in considering the section 9C material when sentencing the defendant.
[8] R v Wanganeen (2010) 108 SASR 463, [27]-[30].
Counsel for the defendant summarised the information arising from the section 9C conference as follows:
Mr Wanganeen is 38 years of age. His mother is connected to the Raukkan mission Aboriginal community. His father to the Point Pearce community. He has three children aged 16, 9 and 1. He sees his 9 year old daughter regularly. The one year old lives in Western Australia with the child’s Grandma. Mr Wanganeen has contacted Child Welfare services in WA with a view to establishing a relationship.
Mr Wanganeen described a difficult upbringing marked by endemic alcohol abuse. He frankly outlined his own issues with alcohol and drugs over the years. He indicated efforts he had made to address those issues. He told the Court of the grief and loss associated with the deaths of 3 brothers from drug overdoes [sic] and other loss his family had endured.
Mr Wanganeen outlined his aspirations to gain employment, either in mining or back in the retail industry. He worked for Coles for 5 years from 2002 to 2007. He advanced to management positions within that time. He described his love of reading and how he had applied himself to learning whilst in gaol. He is interested in exploring study and training opportunities.
Mr Wanganeen outlined the difficulties he had with depression, which had led him to eventually consult a Doctor. He has been on medication for the last three years and sees a Doctor regularly. He explained that it was difficult to maintain employment with his depression and he was keen to get back on track to working.
Mr Wanganeen expressed remorse for his offending. He apologised to the neighbours involved in one of the incidents immediately upon his release from custody. He detailed how he had reflected upon his actions and his relationships in custody and his feelings of shame in relation to his conduct. He expressed his desire to help and be a positive role model within the Aboriginal community and to his family.
Mr Wanganeen initiated contact with Kornarwidmill Yunti (KY) and the counselling service for Aboriginal men hosted by the Baptist Church of Adelaide. Steven Simpson from KY detailed the programme available to Mr Wanganeen involving a 20 week engagement and including counselling, referrals, men’s groups discussing violence, grief, loss and other issues facing Aboriginal men. He described the need to address the pain and loss associated not only with immediate experience of grief and loss, but that associated with the Mission history and colonisation. Karl Reshleigh explained his role as a counsellor for Aboriginal men. He explained his open door policy and that he would be able to offer Mr Wanganeen up to daily counselling depending upon the assessed level of need and changing circumstances. Both agencies indicated a willingness to assist Mr Wanganeen and that upon their initial assessments, Mr Wanganeen appeared to be willing to engage with them.
Family friend Casey spoke of his knowledge of the family for many years and his positions of responsibility within the Housing Cooperative where Mrs Sumner and one of Mr Wanganeen’s brothers both live. He spoke to the issues with alcohol and drugs, grief and loss associated with the family. He spoke of Mr Wanganeen as being keen to improve himself and how they shared and talked about books. He indicated they had previously discussed adult entry university as an aspiration for Mr Wanganeen.
Elder Colleen Welch explained her family connection to Mr Wanganeen’s family and personal knowledge of his mother and her situation. She described the difficulties facing Mrs Sumner raising 6 children as a single mother and issues that had faced Mr Wanganeen’s grandmother as well. She explained life on the Missions in South Australia, the sense of displacement of being taken there, and the difficulties Mrs Sumner faced in moving to urban Adelaide, including endemic alcohol issues. She outlined some of the grief and loss the family had experienced involving several tragic deaths of Mr Wanganeen’s immediate family members. She expressed concern over Mr Wanganeen’s relationships over time, but also explained that violence against women has no place in Aboriginal culture. She considered Mr Wanganeen in her knowledge of him and his family was someone capable of being a positive role model within the Aboriginal community.
Counsel for the police accepted that this was information on which the Court could rely when resentencing.
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.
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