R v Wanganeen

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 in relation to all offences under s 18A of the Criminal Law (Sentencing) Act 1988.
The appellant appealed to this Court against his sentence. He complained that the head sentence and non-parole period were each manifestly excessive and that the learned sentencing Judge failed to give adequate discount to a plea of guilty in that he found that the plea was not entered at the earliest opportunity.
At about 11.10 pm on 18 June 1998, the appellant was observed attempting to interfere with a motor vehicle parked in the driveway of a dwelling house. The occupant of the house called out to the appellant to desist and to leave the premises. The occupant yelled at the appellant: “If you don’t go away, I’ll kick your ass for you” to which the appellant replied: “You threaten me and I’ll kill you, you bastard”. The appellant then approached the front door and on reaching it, smashed a window adjoining the door and then attempted to open the door. While smashing the glass in the window, the appellant repeatedly said, “I’m going to kill you, you cunt” in an aggressive and agitated manner. The occupant of the house attempted to call the police on the telephone. She screamed and the appellant ran away. The charge in relation to threatening life relates to this incident.
Later that same night, the appellant committed burglary in a house nearby. While he was on the premises, the occupier of the house concerned arrived home. As he walked up his driveway, he noticed a broken window. The appellant put his head through the broken window and said, “Back off, I’ve got a shotgun”. He then got through the window and walked up to the occupant on the premises saying that he had a shotgun. He produced a knife and with that the occupant ran away. The appellant ran in the opposite direction. The charge of burglary, being count 3, relates to this incident.
The learned sentencing Judge found the appellant to be a 23 year old man of Aboriginal descent. He grew up in a dysfunctional family. Prior to his arrest in relation to these charges, he lived with a non-Aboriginal partner who had a number of children from a previous relationship and two additional children of whom the appellant is the father.
The appellant has a long list of previous convictions. Many of them could be classed as convictions for minor offences. While on bail for the offences, the subject of this appeal, the appellant committed further offences including being unlawfully on premises (3 counts), unlawful possession and damaging property. In the circumstances, it is difficult to see that the appellant will not offend again if given the opportunity.
A pre-sentence report was supplied to the learned sentencing Judge. It paints a picture of a good supportive family environment. However, it would seem that whether or not there is a supportive family environment, one has no guarantee that the appellant will not offend again. I refer to the further offences committed in January of this year.
The learned sentencing Judge and this Court have taken into account the Victim Impact Statement of one of the victims involved in the incidents, the subject of this appeal.
I do not think the learned sentencing Judge’s sentence was, in any respect, excessive in relation to the offences of threatening life and burglary. I consider the sentence in relation to them to be reasonable and well within the learned sentencing Judge’s discretion.
In my opinion, 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 will be necessary to set aside the whole sentence and sentence the appellant afresh.
In re-sentencing the appellant it is necessary to ensure that what is done does not amount, in effect, to an increase in the sentence by an appellate Court other than in the circumstances of a Crown appeal. As the learned sentencing Judge has done, I think it is reasonable and appropriate to take a term of five years as the starting point. The property damage sentence must be removed thus reducing the term to 4 years and 6 months, being 18 months for threatening life and 3 years for burglary.
It is then necessary to make a deduction for a plea of guilty. The appellant was originally arraigned in respect of the offences of threatening life (count 1), burglary (count 2) and burglary (count 3) on 2 November 1998. He was arraigned in respect of all 3 counts and pleaded not guilty in each case. He failed to appear and was apprehended and brought to the Court in custody in August 1999. There was a disputed facts hearing and the appellant did not plead guilty until after a ruling had been made on that hearing. The learned sentencing Judge gave the appellant a small discount of 3 months for his plea of guilty. The learned sentencing Judge did, however, indicate that the discount would have been much greater if the appellant had pleaded guilty at the earliest opportunity. The discount allowed was 3 months.
As the 2 counts on which the appellant is to be sentenced, namely count 1, dealing with threatening life, and count 3, dealing with burglary, appeared in the Information dated 2 November 1998 and did not become the subject of a plea of guilty until 10 April 2000, although the appellant was arraigned in respect of them on 2 November 1998, the plea of guilty in relation to those counts should be taken as belated pleas. I would allow a discount of 3 months in the aggregate for the pleas of guilty in this case.
I would impose a head sentence of 3 years and 9 months with a non-parole period of 18 months. The head sentence and non-parole period will each commence today.
I can see no reason why the sentence should be suspended.
Pursuant to s 53 of the Criminal Law (Sentencing) Act 1988, the learned sentencing Judge ordered the appellant to pay $280 compensation for the damage of the window involved in the damaging property offence. As the conviction for that offence has been set aside, the order for the payment of the compensation will have to be set aside as well.
On the hearing of the appeal, the Court made the following orders:
That the notice of appeal against sentence be deemed to be also a notice of appeal against conviction on the charge of damaging property;
Allow the appeal against the conviction recorded for the offence of damaging property and set aside the conviction on that count;
Allow the appeal against sentence;
Set aside the sentence imposed by the District Court;
Substitute a single sentence of imprisonment for 3 years and 3 months;
In relation to that head sentence, fix a non-parole period of 1 year and 6 months;
Direct that the sentence and non-parole period operate from today, the court having taken account of the 3 months’ imprisonment served since the Judge imposed sentence.
Set aside the order that the appellant pay $280 compensation because that also related to the damage property.

[2000] SASC 371

16 October 2000