R v Wanganeen - [2000] SASC 371

R v WANGANEEN
[2000] SASC 371

Court of Criminal Appeal: Doyle CJ, Williams and Wicks JJ

1................ DOYLE CJ...... I agree with the reasons given by Wicks J for the orders that the Court made when it allowed this appeal. There is nothing that I wish to add to those reasons.

2................ WILLIAMS J.. I agree with the reasons given by Wicks J for the orders that the Court made when it allowed this appeal.

3................ WICKS J.......... This is an appeal against sentence. The appellant was charged with one count of threatening life, two counts of burglary, one count of being armed at night with a dangerous or offensive weapon intending to use it to commit an offence and common assault.

The appeal was heard on 16 October 2000 and allowed on that day. The Court indicated that it would publish its reasons at a later date. These are those reasons.
The appellant was arraigned on 10 April 2000 when the Information was amended by consent by deleting the charge of being armed at night with a dangerous or offensive weapon and intending to use it to commit an offence. On that occasion, the appellant pleaded guilty to threatening life (count 1), not guilty to burglary but guilty to property damage (count 2) and guilty to burglary (count 3). The Director of Public Prosecutions accepted these pleas in full satisfaction of the information. The charge of common assault was not proceeded with.
The appellant was sentenced in the District Court on 20 July 2000. In his sentencing remarks, the learned sentencing Judge said: “Your plea of guilty to property damage in fact related to a further charge of burglary but the prosecution accepted your plea to the lesser offence”. The offence of property damage is not a permissible alternative to either burglary or being armed at night with a dangerous or offensive weapon intending to use it to commit an offence. The offence of damage to property was not mentioned in the Information and no particulars of such an offence were given.
The learned sentencing Judge began as his starting point with a sentence of 5 years comprising 18 months for threatening life, s6 months for property damage and 3 years for burglary. A period of 3 months was deducted for what was described as a “belated plea of guilty” and a period of a further 9 months was deducted for periods spent in custody in relation to these offences, including a small allowance for a period of home detention. The total sentence was therefore 4 years. The learned sentencing Judge said that the non-parole period that he would have fixed on a sentence of 5 years, ignoring the deductions, would have been 3 years. He made the same deductions for that period and accordingly fixed a non-parole period of 2 years. He was asked to suspend the sentence but said that he could find no good reason to do so.
The learned sentencing Judge imposed one sentence…

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 [2000] SASC 371
Case: [2000] SASC 371
Decision Date: 16 October 2000

CaseChat Overview and Summary

In the case of R v Wanganeen, the appellant was convicted of threatening life, burglary, and property damage, and was sentenced to a total of 4 years imprisonment by the District Court. The appellant appealed against his sentence, arguing that the head sentence and non-parole period were manifestly excessive and that the learned sentencing judge failed to adequately discount his plea of guilty. The Court of Criminal Appeal allowed the appeal against sentence and set aside the sentence imposed by the District Court. The Court found that the learned sentencing judge erred in law by purporting to sentence the appellant on the charge of property damage and that, as a result, the whole sentence needed to be set aside and the appellant needed to be re-sentenced. The Court took into account the Victim Impact Statement of one of the victims involved in the incidents and considered the sentence in relation to the offences of threatening life and burglary to be reasonable and well within the learned sentencing judge's discretion. The Court imposed a head sentence of 3 years and 9 months with a non-parole period of 18 months. The Court also set aside the order that the appellant pay $280 compensation for the damage of the window involved in the damaging property offence as the conviction for that offence had been set aside. The Court made orders allowing the appeal against sentence and conviction on the charge of damaging property, setting aside the conviction on that count, and substituting a single sentence of imprisonment for 3 years and 3 months with a non-parole period of 1 year and 6 months.
The Court found that the appellant's sentence was not excessive in relation to the offences of threatening life and burglary. However, the Court found that the learned sentencing judge erred in law in purporting to sentence the appellant on the charge of property damage. As s 18A of the Criminal Law (Sentencing) Act 1988 is involved and there has been only one sentence, it was necessary to set aside the whole sentence and sentence the appellant afresh. The Court took into account the appellant's age, his dysfunctional family background, his previous convictions, and his commission of further offences while on bail. The Court found that it was reasonable and appropriate to take a term of five years as the starting point and reduce the term to 4 years and 6 months by removing the property damage sentence. The Court allowed a discount of 3 months in the aggregate for the pleas of guilty in this case. The Court imposed a head sentence of 3 years and 9 months with a non-parole period of 18 months. The Court found that there was no reason why the sentence should be suspended.

Orders