R v Glen - [2006] NSWCCA 153

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Glen [2006] NSWCCA 153

FILE NUMBER(S):
2005/2270

HEARING DATE(S): 27 March 2006

DECISION DATE: 11/05/2006

PARTIES:
Regina v David Jack Glen

JUDGMENT OF: Grove J Adams J Hislop J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 01/001

LOWER COURT JUDICIAL OFFICER: Barr J

COUNSEL:
D. Woodburne (Crown/Applicant)
A. Haesler SC (Respondent)

SOLICITORS:
S. Kavanagh (DPP)
S. O'Connor (Respondent)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
LIFE SENTENCE IMPOSED PRIOR TO SENTENCING ACT 1989
APPLICATION TO REDETERMINE RESULTING IN FINITE HEAD SENTENCE AND NON PAROLE PERIOD
NECESSARY CONSIDERATION OF SPECIAL PROVISION FOR INDETERMINATE SENTENCE WITH PAROLE OPPORTUNITY
CROWN APPEAL
SPECIAL PROVISION NOT REFERRED TO IN REASONS FOR REDETERMINATION
INTERVENTION TO REDETERMINE APPROPRIATE
RECAPITULATION OF FACTS
YOUTHFUL OFFENDER
OFFENCE IN WORST CASE CATEGORY
WHETHER UNSUPERVISED LIBERTY IN PUBLIC INTEREST

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Sentencing (Life Sentences) Amendment Act 1989
Sentencing (Life Sentences) Amendment Act 1993

DECISION:
CROWN APPEAL ALLOWED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2270
GROVE J
ADAMS J
HISLOP J
11 May 2006

REGINA v DAVID JACK GLEN

Judgment

GROVE J: This is a Crown appeal against the redetermination of an existing life sentence by Barr J authorized by cl 8 of Schedule I to the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). The life sentence was imposed by Wood J (as he then was) on 22 December 1986 following the conviction of the respondent for the murder on 10 October 1985 of a ten year old girl Kylie Jane Corbett, who was his cousin. The imposition of a life sentence was mandatory unless it was found that the offender’s culpability was significantly diminished by circumstances within the ambit of a proviso to the applicable statutory provision. Such was not the case. Wood J also stated that he declined to set a non parole period but it can be noted that, at the time and in respect of a life sentence, there was no power so to do. Nothing then or now turns on this.
2 A new sentencing regime was introduced by the Sentencing Act 1989 (assented to on 2 June 1989 and commencing on 21 September 1989). Later by the Sentencing (Life Sentence) Amendment Act 1989 (assented to on 21 December 1989 and commencing on 12 January 1990) prisoners such as the respondent who were serving life sentences became entitled to make an application as specified in s 13A which was then inserted into the principal Act. The terms of s 13A were:
“Existing life sentences
13A (1) In this section:

‘existing life sentence’ means a sentence of imprisonment for life imposed before or after the commencement of this section, but does not include a sentence for the term of a person’s natural life under section 19A of the Crimes Act 1900 or section 33A of the Drug Misuse and Trafficking Act 1985.

(2) A person serving an existing life sentence may apply to the…

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 Glen

Details

AGLC: R v Glen [2006] NSWCCA 153
Case: [2006] NSWCCA 153
Decision Date: 11 May 2006

CaseChat Overview and Summary

The case of R v Glen involved an application by the appellant for a redetermination of his sentence, which had initially resulted in a finite head sentence and a non-parole period. The appellant, having been convicted of an offence in the worst-case category, had been sentenced prior to the introduction of the Sentencing Act 1989. The Crown subsequently appealed against the redetermination of the sentence by the lower court. The appeal raised issues concerning the necessity of considering a special provision for an indeterminate sentence with a parole opportunity, and whether the lower court had appropriately considered this aspect in its reasons for redetermination.

The court was tasked with determining whether the lower court had correctly applied the principles of sentencing under the Sentencing Act, particularly in the context of imposing a sentence on a youthful offender who had committed an offence in the worst-case category. The central issue was whether the lower court had adequately considered the special provision for an indeterminate sentence with a parole opportunity. The court noted that the lower court's reasons for redetermination did not address this special provision, which was a significant aspect of the appellant's sentence. Consequently, the court found that the lower court's failure to consider this provision warranted intervention.

The court held that the lower court had not appropriately considered the special provision for an indeterminate sentence with a parole opportunity, which was a crucial factor in the appellant's sentencing. The court emphasised that the special provision should have been part of the considerations in determining the appellant's sentence. The court concluded that the Crown's appeal was well-founded and the lower court's decision to redetermine the sentence without reference to the special provision was incorrect. The court subsequently redetermined the sentence, taking into account the special provision, and found that an indeterminate sentence with a parole opportunity was appropriate in the circumstances.

The court ordered that the appellant's sentence be redetermined to an indeterminate sentence with a parole opportunity, reflecting the proper application of the special provision. The court's decision underscored the importance of considering all relevant factors, including special provisions, in the sentencing process, particularly in cases involving youthful offenders and serious offences. The court's redetermination aimed to ensure that the sentence appropriately balanced the interests of justice and the protection of the public, while also providing the appellant with an opportunity for parole.

Orders