R v Glynn - [2000] SASC 323

R v GLYNN
[2000] SASC 323

Court of Criminal Appeal: Prior, Debelle and Lander JJ

1................ LANDER J: On 30 July 1998 the appellant on her plea of guilty, was convicted of robbery with violence. A Judge of the District Court sentenced her to be imprisoned for two years and six months. He set a non parole period of nine months. The sentence commenced on 30 July 1998.

On 28 April 1999 the appellant, who was born on 21 May 1975, and is now 25 years of age, was released on parole and returned to her home town of Mount Gambier to live with her young son and immediate family.
After release on parole she undertook several jobs including waitress work and work in a meat works but the distances involved in travel and in due course the execution of a Parole Board warrant prevented her securing long term employment.
During her release on parole she smoked cannabis in contravention of her parole conditions. She failed to attend an alcohol and other drug programme on 1 December 1999. She substituted a false urine sample on 3 December 1999.
On 9 May 2000 the appellant acknowledged all three breaches of parole.
On 23 March 2000 her parole was cancelled. At the time of cancellation the balance of the unexpired portion of parole was one year one month and 27 days. The appellant is due for release on 20 May 2001.
On 30 May 2000 she applied to the Judge of the District Court, who had sentenced her in 1998, requesting that he set a new non parole period. Her application was supported by her affidavit sworn on 7 June 2000. She also relied on the affidavit of her solicitor sworn on 9 June 2000, which exhibited a psychological report from Dr Allen Fugler dated 30 May 2000, and a number of references.
The matter came before the sentencing Judge on 14 June 2000, who ordered a Parole Board report pursuant to s 32(9) of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act).
Such a report was provided on 21 June 2000.
The learned sentencing Judge referred to the Parole Board report which he said indicated that any future release had to be very strictly monitored. He said:
“I am not able to do that. I am not prepared to do that. I think you really have to stay in the hands of the Parole Board. I will encourage them to give you all the assistance for your future release on strict conditions and supervision as early as possible, but they are the people to do that and to lay out conditions.
I am not prepared to make any order.”
It may be assumed that the sentencing Judge believed that it was a matter for the Parole Board to determine when the appellant should be released. We think in that respect he was wrong and indeed the respondent concedes that the sentencing Judge was in fact wrong.
Section 32(3) of 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 Glynn

Details

AGLC: R v Glynn [2000] SASC 323
Case: [2000] SASC 323
Decision Date: 18 September 2000

CaseChat Overview and Summary

In the Court of Criminal Appeal, the case of R v Glynn was presented, where the appellant, previously convicted of robbery with violence, sought to appeal the sentencing Judge's refusal to set a non parole period following her parole violation. The appellant argued that the refusal was incorrect and sought to set a new non parole period. The legal issues involved interpreting the discretion of the sentencing Judge under the Criminal Law (Sentencing) Act 1988 to set a non parole period and whether the refusal to set such a period constituted a sentence or decision to defer sentencing, which would permit an appeal. The Court examined whether the refusal to set a non parole period could be considered a sentence or a decision to defer sentencing, which would entitle the appellant to appeal under the Criminal Law Consolidation Act 1935. The Court found that the refusal to set a non parole period could be considered a decision to defer sentencing and thus appealable. The Court also concluded that the sentencing Judge had the discretion to set a non parole period, which was not exercised appropriately. The Court allowed the appeal and granted the appellant's application to set a new non parole period, fixing it at six months from the date of her return to prison.

Orders