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R v Wanganeen

R v Wanganeen

Case [2010] SASC 237 30 July 2010

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SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WANGANEEN
[2010] SASC 237
Judgment of The Honourable Justice Gray
30 July 2010
ABORIGINALS - CRIMES BY ABORIGINALS - SENTENCE - FACTORS TO BE CONSIDERED
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY - GENERALLY
Defendant pleaded guilty to the offence of aggravated causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA) - defendant an Aboriginal man - application made that sentencing proceed by way of sentencing conference pursuant to section 9C of the Criminal Law (Sentencing) act 1988 (SA) - application granted - consideration of purpose of Indigenous sentencing conferences - consideration of manner in which sentencing conference to proceed - consideration of use to be made of information arising from conference.
Criminal Law (Sentencing) Act 1988 (SA) s 9C and s 10; Law Consolidation Act 1935 (SA) s 23(1); Statutes Amendment (Intervention Programs and Sentencing) Procedures Act 2005 (SA); Criminal Procedure Regulation 2005 (NSW); Criminal Procedure Act 1986 (NSW); Magistrates Court Act 1989 (VIC); Children and Young Persons Act 1989 (VIC); Magistrates Court Rules 1992 (SA), referred to.
Neal v The Queen (1982) 149 CLR 305; R v Tjami (2000) 77 SASR 514; Police v Carter (2002) 81 SASR 330; R v Scobie (2003) 85 SASR 77, considered.

R v WANGANEEN
[2010] SASC 237
Criminal
GRAY J.

On 2 November 2009, the defendant, Dwayne Lee Wanganeen, pleaded guilty to the offence of aggravated causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA). That offence was the second count on the Information, charged in the alternative to attempted murder. A nolle prosequi was entered by the prosecution with respect to the first count.
The defendant is an Aboriginal man. Counsel for the defendant made an application that sentencing proceed by way of sentencing conference, conducted pursuant to section 9C of the Criminal Law (Sentencing) Act 1988 (SA). That application was granted and the matter proceeded to the sentencing conference. An Aboriginal elder and an Aboriginal justice officer attended, in addition to the defendant’s mother, aunt and cousin. The victim did not attend.
Section 9C appears to have been utilised by the Supreme Court on only two occasions. As a consequence, I considered it appropriate to undertake an analysis of the provision, to provide context and guidance in relation to the process to be undertaken. I have been assisted in this analysis by a range of relevant materials provided by counsel, including sentencing remarks in cases where a sentencing conference has been held,[1] in addition to articles in relation to restorative justice and the sentencing of Aboriginal offenders, and materials prepared by Magistrates central to the introduction of initiatives in relation to the sentencing of Aboriginal people.[2] I have had regard to those materials in preparing these reasons.
[1] R v Harradine (14 January 2009) Sentencing Remarks…

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 R v Wanganeen

Details

AGLC: R v Wanganeen [2010] SASC 237
Case: [2010] SASC 237
Decision Date: 30 July 2010

CaseChat Overview and Summary

The case of R v Wanganeen involved the defendant, an Aboriginal man, who pleaded guilty to the offence of aggravated causing serious harm with intent to cause serious harm. The court had to determine the appropriate sentence, considering the unique circumstances of the offender, particularly his Aboriginality. The matter was heard in the South Australian court system, with the sentencing proceeding via a conference as per the provisions of the Criminal Law (Sentencing) Act 1988 (SA).

The legal issues before the court included the proper approach to sentencing an Aboriginal offender, the factors to be considered in such cases, and the procedural aspects of conducting a sentencing conference. The court had to balance the statutory sentencing framework with the specific needs and considerations applicable to Indigenous offenders.

In delivering its judgment, the court emphasised the importance of Indigenous sentencing conferences in providing a culturally appropriate context for sentencing Aboriginal offenders. The court outlined the purpose of these conferences, which is to facilitate a more holistic and culturally sensitive sentencing process. The court also detailed the procedural aspects of conducting such a conference, including the use of information arising from the conference in the sentencing decision. The court acknowledged the importance of considering the nature and circumstances of the offender, including his Aboriginality, in determining an appropriate sentence.

The court's decision and reasoning provided a framework for the sentencing of Aboriginal offenders that recognises their unique circumstances. The final orders of the court would reflect the outcome of the sentencing conference, taking into account all relevant factors, including the defendant's Aboriginality and the overall purpose of the sentencing process.

Orders