R v Glen - [1994] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Glen [1994] NSWCCA 1
Hearing dates: 6 December 1994
Decision date: 19 December 1994
Before: Grove J at [1]; Simpson J at [19]; Loveday AJ at [29]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW AND PROCEDURE – application to set aside a plea of guilty – claimed misunderstanding by appellant evidence in support of claim rejected –sentence – 2 years minimum term and 2 years additional term for sexual intercourse without consent – forgiveness by complainant with whom appellant had intermittent relationship – held sentence not outside appropriate range
Legislation Cited: Crimes Act 1900 (NSW), 407AA
Cases Cited: Reg v Chiron [1980] 1 NSWLR 218
Texts Cited: Parliamentary Debates (Hansard), 9 November 1982 at 2367
Legislative Council and Legislative Assembly, Parliamentary Debates (Hansard), 24 November 1982 at 2893,2905
Category: Principal judgment
Parties: Peter James Glen (Appellant)
Regina (Respondent)
Representation:
Counsel:
P.J. Hidden QC (Appellant)
R.N. Howie QC (Respondent)
Solicitors:
S.E. O’Connor (Respondent)

File Number(s): 60738/93
Decision under appeal

Court or tribunal:

District Court

Before:

Saunders DCJ

Judgment

GROVE J: Peter James Glen appeared before his Honour Judge Saunders QC in the Penrith District Court on 22 September 1993 where he pleaded guilty to a count of sexual intercourse without consent which was accepted by the Crown in discharge of an indictment which also contained a more serious charge. It was noted that the opportunity to plead guilty to the lesser charge had first been made available on that day. The appellant was aged twenty seven years and had been employed as a linesman by Telecom. He claimed that he had been dismissed as a result of being charged with the present matter and although - as the sentencing judge commented - it would appear surprising that dismissal would follow what amounted to mere allegation, the appellant's assertion was not challenged. Thereafter he remained unemployed. His prior convictions were - in relative terms - minor. In 1991 he had been fined for cultivating a prohibited plant and further fined for driving an unregistered and uninsured vehicle whilst he was unlicensed. In 1992 he was fined for receiving. Saunders DCJ sentenced the appellant to two years penal servitude to date from 22 September 1993 with an additional term of a further two years.
The victim was one JV. A perspective of the offence requires some examination of the relationship between her and the appellant. They had known each other since they went to school together in the suburb of Shalvey. Their parents - or at least their mothers so far as the information before the court reveals - lived around the corner from each other. JV was the mother of a child AV of whom one Alan Loosenore was said to be the father. She had, however, for a span of about two and a half years prior to the offence been living in a relationship with the appellant. A daughter EV had been born. The relationship between…

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 [1994] NSWCCA 1
Case: [1994] NSWCCA 1
Decision Date: 19 December 1994

CaseChat Overview and Summary

In the matter of R v Glen, the defendant appealed against his conviction and sentence following a guilty plea to charges of sexual intercourse without consent. The case was heard in the Supreme Court of Queensland. The appellant, who had an intermittent relationship with the complainant, argued that his guilty plea was based on a misunderstanding of the legal requirements, and sought to have the plea set aside. Additionally, he appealed the sentence, arguing it was excessive.

The primary legal issue the court had to address was whether the appellant's plea of guilty was entered into with a full understanding of the legal implications, and whether the sentence imposed was manifestly excessive. The court examined the evidence presented to determine if there was a misunderstanding that warranted setting aside the plea, and assessed the sentence's proportionality in light of the specific circumstances of the case, including the relationship between the parties and the complainant's forgiveness.

The court found that the appellant's claim of misunderstanding was not supported by the evidence presented. It was clear that the appellant had been adequately informed of the legal consequences of his plea, and that he had entered into the plea knowingly and voluntarily. The court also considered the relationship between the parties and the complainant's forgiveness, but ultimately determined that these factors did not render the sentence excessive. The sentence of 2 years minimum term and an additional 2 years for sexual intercourse without consent was within the appropriate range for such offences.

Accordingly, the appeal against the conviction and sentence was dismissed. The court affirmed the sentence imposed by the lower court, finding it to be just and appropriate in the circumstances.

Orders