Glatz v The King - [2023] VSCA 161

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0009

DALE ANTHONY GLATZ	Applicant
v
THE KING	Respondent

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JUDGES:	T FORREST and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2023
DATE OF JUDGMENT:	12 July 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 161
JUDGMENT APPEALED FROM:	DPP v Glatz (County Court of Victoria, 9 December 2022) (Judge Dyer)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Causing injury recklessly – Theft – Attempted theft – Applicant broke into victim’s sleeping accommodation and assaulted him with a metal bar, stealing victim’s phones and attempting to steal victim’s car – Applicant diagnosed with schizoaffective disorder – Applicant sentenced to 4 years’ imprisonment with a non-parole period of 2 years and 3 months – Whether sentencing judge gave insufficient weight to mitigating factors relating to history of mental disturbances and diagnosed mental illnesses of the applicant – Initial failure to treat applicant in accordance with psychiatrist’s recommendations – Prisoners’ rights – Initial failure to treat and ongoing experience of psychiatric condition made burden of imprisonment exceptional – Risk imprisonment would worsen condition – Protection of the community best achieved by facilitating applicant’s ongoing medication, treatment and transition back into community – Leave to appeal granted – Appeal allowed – Resentenced to 3 years and 8 months’ imprisonment with a non-parole period of 2 years.

Corrections Act 1986, ss 47(1)(f), 47(1)(g).

R v Verdins (2007) 16 VR 269, Hogarth v The Queen (2012) 37 VR 658, Veen v The Queen (No 2) (1988) 164 CLR 465, Wright v The Queen [2015] VSCA 333, Brown v The Queen (2020) 62 VR 491, Worboyes v The Queen [2021] VSCA 169 referred to.

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Counsel
Applicant:		Ms G Connelly
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Rolfe Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

Background facts

Personal circumstances

The judge’s Reasons

Analysis

T FORREST JA
OSBORN JA:

Introduction

Following pleas of guilty, the applicant was sentenced by his Honour Judge Dyer in the County Court at Melbourne on 9 December 2022, in respect of four charges arising out of an incident of aggravated burglary and consequential offending.
The sentences imposed were as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary (contrary to s 77 of the Crimes Act 1958)	25 years’ imprisonment	3 years’ imprisonment	Base
2	Causing injury recklessly (contrary to s 18 of the Crimes Act 1958)	5 years’ imprisonment	2 years’ imprisonment	6 months
3	Theft (contrary to s 74(1) of the Crimes Act 1958)	10 years’ imprisonment	6 months’ imprisonment	3 months
4	Attempted theft (contrary to ss 321M and 74(1) of the Crimes Act 1958)	5 years’ imprisonment	6 months’ imprisonment	3 months
Total Effective Sentence:		4 years’ imprisonment
Non-Parole Period:		2 years 3 months
*Pre-sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*		472 days
Section 6AAA Statement:		5 years and 6…

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 Glatz v The King

Details

AGLC: Glatz v The King [2023] VSCA 161
Case: [2023] VSCA 161
Decision Date: 12 July 2023

CaseChat Overview and Summary

The case of Glatz v The King concerns an appeal against the sentence imposed on the applicant for aggravated burglary, causing injury recklessly, theft, and attempted theft. The Court of Appeal of the Supreme Court of Victoria reviewed the case where the applicant broke into the victim’s sleeping accommodation, assaulted the victim with a metal bar, and stole the victim’s phones and attempted to steal the victim’s car. The applicant, diagnosed with schizoaffective disorder, was sentenced to four years’ imprisonment with a non-parole period of two years and three months. The appeal focused on whether the sentencing judge had sufficiently considered the mitigating factors related to the applicant's history of mental disturbances and diagnosed mental illnesses. The applicant argued that the initial failure to treat him in accordance with the psychiatrist’s recommendations, coupled with his ongoing experience of psychiatric conditions, made the burden of imprisonment exceptional and that there was a risk that imprisonment would worsen his condition.

The central legal issue before the court was whether the sentencing judge had appropriately balanced the severity of the offences with the mitigating factors pertaining to the applicant's mental health. The court had to determine if the judge had given sufficient weight to the mitigating factors, particularly the applicant's diagnosed mental illnesses and the initial failure to treat him in line with the psychiatrist’s recommendations. The court also needed to assess whether the risk of the applicant's condition deteriorating due to imprisonment and the potential benefits of facilitating his ongoing medication, treatment, and transition back into the community were adequately considered.

The Court of Appeal held that the sentencing judge did not sufficiently weigh the mitigating factors relating to the applicant's history of mental disturbances and diagnosed mental illnesses. The court noted that the initial failure to treat the applicant in accordance with the psychiatrist’s recommendations, and the ongoing experience of his psychiatric condition, made the burden of imprisonment exceptional. Furthermore, the court determined that the risk that imprisonment would worsen the applicant's condition and that the protection of the community would be best achieved by facilitating his ongoing medication, treatment, and transition back into the community. Consequently, the appeal was allowed, and the applicant was resentenced to three years and eight months' imprisonment with a non-parole period of two years.

In light of the above, the Court of Appeal substituted the original sentence with a reduced term of imprisonment, reflecting a more balanced consideration of the mitigating factors related to the applicant's mental health. The new sentence aims to protect the community while also considering the applicant's ongoing need for medical treatment and support.

Orders