R v John Douglas Paul Mcglynn No. DCCRM-02-4

R v John Douglas Paul McGlynn
[2003] SADC 114

SULAN J The defendant, John Douglas McGlynn, is charged with three counts of illegal use, four counts of armed robbery, two counts of assault with intent to rob, one count of attempted larceny, two counts of attempted larceny from the person and one count of assault with intent to resist lawful apprehension. The offences all occurred between the 17^th July 2001, and the 5^th August 2001. I will deal with the particulars of the offences later in these reasons.
The defendant was presented before me on the 28^th March 2003, having selected a trial by Judge alone. The first issue to be determined was whether the defendant was mentally unfit to stand trial pursuant to section 269H[1] of the Criminal Law Consolidation Act 1935 (the Act).
[1] 269H A person is mentally unfit to stand trial on a charge of an offence if the person’s mental processes are so disordered or impaired that the person is-
(a)unable to understand or to respond rationally to, the charge or the allegation on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
Pursuant to section 269L I ordered that the question of the defendant’s mental fitness to stand trial be tried before any other issue in the case.
Pursuant to section 269M[2] I embarked upon the procedure referred to in section A of that section.
[2] 269M If the trial judge decides that the defendant’s mental fitness to stand trial is to be tried first, the court proceeds as follows.
Mr Williams for the Director of Public Prosecutions tendered a report of Mr Richard Balfour, a registered psychologist and senior clinical lecturer in psychology, dated 24 July 2002. He also tendered reports of Doctor Craig Raeside, a forensic psychiatrist, dated the 18^th April 2002, and the 23^rd August 2002. Mr Ey, for the defendant, did not object to me receiving the reports as evidence in the trial.
Section 269A of the Act provides that mental impairment includes:
(a)a mental illness; or
(b)an intellectual disability; or
(c)a disability or impairment of the mind resulting from senility.
Mr Balfour concluded that Mr McGlynn suffers from a mild to moderate intellectual disability which amounts to a mental impairment as defined by section 269A. He concluded :
“1.that Mr McGlynn is so mentally impaired that he is unable to understand or to respond rationally to the charges or the allegations on which the charges are based;
2.that he is so mentally impaired that he is unable to exercise or give rational instructions about the exercise of procedural rights (such as, for example, the right to challenge jurors);
3.that he is so mentally impaired that he is unable to understand the nature of the proceedings or to follow the evidence or the course of the proceedings.”
He was of the opinion that the defendant was unfit to stand trial. He concluded :
“His intellectual disability is a permanent medical condition for which there is no cure. Therefore he is unlikely to become fit to stand trial within the next 12 months.”
In his report of the 18^th April 2002, Doctor Raeside concluded that at that time he was unfit to stand trial or provide adequate instructions to his counsel.
In his report of the 23^rd August 2002, Doctor Raeside concluded that the defendant continues to be unfit to plead or stand trial and that there is no significant indication that the defendant would improve in the next twelve months.
I was satisfied that the defendant is unfit to stand trial and will remain so unfit to stand trial for more than twelve months. Pursuant to section 269MA(5)(a) and (b), I terminated any further investigation into the defendant’s fitness to stand trial and recorded a finding that the defendant is mentally unfit to stand trial.
Pursuant to section 269MB, I then proceeded to hear evidence and representations relevant to the question of whether the objective elements of each of the offences charged is established beyond reasonable doubt.
Section 269W[3] provides that counsel has an independent discretion to act in a defendant’s best interests. Pursuant to section 34 of the Evidence Act 1929[4], Mr Ey admitted the objective elements of each offence and invited me to conclude beyond reasonable doubt that the objective elements in respect of each offence had been proved. I had been provided with a schedule of evidence which established the objective elements in respect of each offence and I considered the declarations of each witness relevant to prove the objective elements of each offence. I shall deal with that evidence later in these reasons.
[3] 269W (1) If the defendant is unable to instruct counsel on questions relevant to an investigation under this Part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant’s best interests.
[4]34 A person may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence: Provided that the admission shall be made by the accused either personally or by his counsel or solicitor in his presence, or, in the case of a body corporate, by its counsel or solicitor.
I concluded that the objective elements in respect of each of the offences charged had been proved beyond reasonable doubt. I declared that the defendant is therefore liable to supervision under Part 8A of the Criminal Law Consolidation Act.
Section 269O[5] provides that if it is declared that a defendant is liable to supervision, then the Court has the power to make various orders, including an order committing the defendant to detention.
[5] 269O        (1)     The court by which a defendant is declared to be liable to supervision under this Part may-
(a)      release the defendant unconditionally; or
(b)     make an order (a supervision order)-
(i)committing the defendant to detention under this Part; or
(ii)releasing the defendant on licence on conditions decided by the court and specified in the licence.
(2)     If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.
(3)     At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
I concluded that the appropriate order in respect of the defendant was to commit him to detention. The offending is so serious and his mental condition is such that it is inappropriate to release him unconditionally, nor is it appropriate to release the defendant on licence.
Having determined that the defendant be committed to detention, the Court is required to fix a limiting term equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the Court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established. In determining that question, the Court is not to take into account the defendant’s mental impairment.
Section 269Q[6] requires the Minister to provide a report on the mental condition of the defendant within thirty days of the making of a supervision order. Mr Ey submitted that I should not fix a limiting term until I had received the report of the Minister. I therefore adjourned the matter pending receipt of that report, in order to hear submissions on the question of setting a limiting term.
The Offences
Count One - Illegal Use (section 86A of the Act)
[6] 269Q        (1)     If a defendant is declared to be liable to supervision under this Part, the Minister must, within 30 days after the date of the declaration, prepare and submit to the court by which the declaration was made a report, prepared by a psychiatrist or other appropriate expert, on the mental condition of the defendant containing-
(a)      a diagnosis and prognosis of the condition; and
(b)     a suggested treatment plan for managing the defendant’s condition.
(2)     If a supervision order is made against the defendant, the Minister must arrange to have prepared and submitted to the court, at intervals of not more than 12 months during the limiting term, a report containing-
(a)      a statement of any treatment that the defendant has undergone since the last report; and
(b)     any changes to the prognosis of the defendant’s condition and the treatment plan for managing the condition.
[s 269Q insrt Act 91 of 1995 s 3; am Act 39 of 2000 s 10, opn 29 Oct 2000]
Particulars of the offence are that the defendant, together with Eunice Marion Owen, on the 31^st July 2001, at Enfield, used a motor vehicle without first obtaining the consent of the owner, Kristian Marc Bais. The maximum penalty for the offence of illegal use for a subsequent offence is imprisonment for not less than three months and not more than four years. The defendant has previous convictions for illegal use of motor vehicles.
At about 5.50 a.m. on 31^st July 2001, Ms Bais parked his Ford Falcon XD sedan at Hilton. She saw the car at 10.30 am during a tea break but at 12.10 pm she observed that the car was missing. The car was recovered later that evening, it having been used in an armed robbery during the course of the day.
Count Two - Armed Robbery (section 158A of the Act)
The maximum penalty for armed robbery is life imprisonment.
Ms Janet Kowald was working at the Enfield Plaza post office. At about 11.35 am on the 31^st July 2001, the defendant walked into the post office, placed a balaclava on his head, approached the counter, brandished a knife and demanded that she give him money. She handed over a total of $2,848.45.
Count Three - Attempted Larceny (section 131 and 270A of the Act)
The maximum penalty for attempted larceny is three years and four months imprisonment.
Ms Angelina Ey was working in a bar at the Mansfield Park Hotel on Saturday, 4^th August 2001. At about 5.15 pm the defendant entered the bar and moved towards the cashier. He was carrying a large kitchen knife. She attempted to stop him and he then pulled away and ran outside. The defendant left in a beige coloured car.
Count Four - Assault with Intent to Rob (section 158A of the Act)
The maximum penalty for the offence is life imprisonment.
Ms Valerie Boothey worked at Cheap as Chips on Main North Road, Prospect. On the 4^th August 2001, at about 5 pm, she closed the shop and went to a car in which she and her friend, Patricia Harris, intended to leave. Whilst she was sitting in the car, the defendant approached her and asked for money. She wound up the window. The defendant produced a wooden stick, smashed the driver’s side window and started to smash the windscreen. He then reached into the back seat and grabbed Ms Boothey’s bag. When she resisted, he hit her with the stick on the arms and head. He then fled the scene.
Count Five - Illegal Use
Michael Gatley owned a Mazda sedan. At about 7 pm on the 4^th August 2001, he noticed that it had been taken from the driveway of his home. The vehicle was located at Angle Park on the 6^th August 2001. The defendant’s fingerprints were found on the vehicle.
Count Six - Armed Robbery (section 158A of the Act)
On the 5^th August 2001, Trishia Mann was on duty at the Angle Park TAB. At about 11.40 am the defendant came into the premises with Ms Owen. He produced a knife and threatened to kill Ms Mann and demanded money. She handed over an amount of $4,279.
Count Seven - Armed Robbery
On Tuesday 17^th July 2001, Ms Peta Jones was on duty at a newsagency at Findon. The defendant entered the premises, handed over a plastic bag and demanded that she put money in the bag. He threatened her with a syringe. She handed over $3,600.
Count Eight - Assault with Intent to Rob (section 156A of the Act)
On the 26^th July 2001, Amy Morris was on duty at the Pizza Hut at Enfield. The defendant came into the premises and handed her a plastic bag. He pulled out a knife and demanded that she fill a bag with money or he would kill her. As she was trying to open the bag he pressed the knife against her neck. She was unsuccessful in getting any money and the defendant eventually ran out of the office.
Count Nine - Illegal Use (section 86A of the Act)
Some time after 7.30 pm on the 27^th July 2001, a green Holden Commodore station wagon belonging to Christine Szmurlo, was stolen. The vehicle was located at Findon later that evening.
Count Ten - Armed Robbery (section 158A of the Act)
On Friday 27^th July 2001, Anthony Lecky was working at the Flinders Park post office. At about 11.22 am the defendant entered the office and approached the counter. He pulled out a machete and demanded money. He then jumped the counter and opened the till and demanded more money. He left with $720.
Count Eleven - Attempted Larceny from the Person (sections 155 and 270A of the Act)
On the 31^st July 2001, the defendant entered the Bi-Lo supermarket at Blair Athol. He approached the counter with a bag of macaroni and as the cashier opened the cash register he leaned over and made a grab for the money. He was pushed by someone in the queue and he then ran out.
Count Twelve - Attempted Larceny from the Person
On the 4^th August 2001, at about 4.40 pm, the defendant entered the post office at Royal Park. He went to the counter and tried to open the gate between the counters. He reached over and opened a drawer. Mr Smith, who was working behind the counter at the time, struck the defendant with a piece of the wood. The defendant then ran out the door.
Count Thirteen - Assault with Intent to Resist Lawful Apprehension (section 43C of the Act)
The maximum penalty for the offence is imprisonment for a term not exceeding five years.
On the 4^th August 2001, the defendant was seen entering a bar at the Mansfield Park Hotel carrying a knife. Colin Sykes, who was a patron at the hotel, observed the defendant attempting to remove money from behind the till. When he was approached by Mr Sykes, the defendant pulled out a knife and lunged at Mr Sykes. Mr Sykes attempted to stop him. He received a minor wound to his leg. He managed to wrestle the knife from the defendant who ran away and escaped.
The defendant has a long history of offending dating back to 1986. His offending involves many counts of larceny, damaging property, illegal use and other offences of dishonesty. He has regularly appeared before the courts between 1986 and 2001, mainly on matters which were dealt with by courts of summary jurisdiction. He has received periods of imprisonment in the past. On two occasions he has escaped from legal custody.
Mr McGlynn is 28 years of age. He was born in Sydney and moved to Adelaide as a small child. His parents separated when he was a baby and he has very little recall of his biological father. His mother still keeps in contact with him. He has been assessed as having a level of intelligence at the moderate to mild range of intellectual functioning. He has a global level of intelligence in the bottom point two percent of the general population for his age group. He attended school until year eight, and since leaving school he has been largely unemployed. He has been diagnosed as an alcoholic and he has used cannabis and alcohol since the age of 14. I accept that when most of these offences were committed he was under the influence of drugs and/or alcohol and he, therefore, has little recall of the details of his offending.
In determining the limiting term I have had regard to the various reports of Dr Raeside and Mr Balfour. I have also had regard to a report of Dr Nambier, dated 8 May 2003. Dr Nambier reported that the diagnosis as to Mr McGlynn’s mental condition is yet unclear. It is not necessary for me to reach any conclusion about Mr McGlynn’s diagnosis as the legislation provides that I am not to take into account his mental impairment in determining the period of the limiting term. However, I am entitled to take into account general considerations relating to Mr McGlynn’s psychological and mental state. I take into account that Mr McGlynn is at the lower end of intellectual functioning, that he has had a chronic alcohol problem since a very early age and that he was under the influence of alcohol or drugs at the time he committed these offences. I take into account the submissions of Mr Ey made on 2 July 2003. I have also had regard to the antecedents of the defendant.
The offending is very serious. All the offences took place over a period of about one week between 27 July 2001 and 5 August 2001. I consider that I should set one overall term using s 18A of the Criminal Law Sentencing Act as a guide. I consider that this is a case where to apply individual notional penalties to arrive at a starting point from which to apply a discount on account of totality would be inappropriate.[7]
[7] R v Nylander (2003) SASC 191 and R v Symonds (1999) SASC 217
These are serious offences and I must have regard to the principles of general deterrence and to a limited extent personal deterrence, having regard to the defendant’s mental condition and low intelligence.
I have considered all relevant factors and the principle of totality. I have also deducted two years, having regard to the period the defendant has been in custody. I set a limiting term of twenty years.
JUDGMENT CITATIONS

LISTED IN ORDER OF APPEARANCE IN JUDGMENT

[1] 269H A person is mentally unfit to stand trial on a charge of an offence if the person’s mental processes are so disordered or impaired that the person is-
(a)unable to understand or to respond rationally to, the charge or the allegation on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.

2 269M If the trial judge decides that the defendant’s mental fitness to stand trial is to be tried first, the court proceeds as follows.
Trial of defendant’s mental fitness to stand trial
A
(1)The court-
(a)must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant’s mental fitness to stand trial; and
(b)may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.

(2)The power to require an examination and report under subsection (1)(b) may be exercised-
(a)on the application of the prosecution or the defence; or
(b)if the judge considers the examination and report necessary to prevent a possible miscarriage of justice - on the judge’s own initiative.

(3)At the conclusion of the trial of the defendant’s mental fitness to stand trial, the court must decide whether it has been established, on the balance of probabilities, that the defendant is mentally unfit to stand trial and-
(a)if so - must record a finding to that effect;
(b)if not - must proceed with the trial in the normal way.

[subs (3) subst Act 39 of 2000 s 8, opn 29 Oct 2000]
(4)(Repealed)

[subs (4) rep Act 39 of 2000 s 8, opn Oct 2000]
(5)The court may, if the prosecution and the defence agree-

(a)dispense with, or terminate, an investigation into a defendant’s fitness to stand trial; and
(b)record a finding that the defendant is mentally unfit to stand trial.

3 269W (1) If the defendant is unable to instruct counsel on questions relevant to an investigation under this Part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant’s best interests.
(2) If the counsel for the defendant in criminal proceedings (apart from proceedings under this Part) has reason to believe that the defendant is unable, because of mental impairment, to give rational instructions on questions relevant to the proceedings (including whether to be tried by judge alone), the counsel may act, in the exercise of an independent discretion, in what the counsel genuinely believes to be the defendant’s best interests.
[subs (2) insrt Act 39 of 2000 s 15, opn 29 Oct 2000]
[s 269W insrt Act 91 of 1995 s 3]

434 A person may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence: Provided that the admission shall be made by the accused either personally or by his counsel or solicitor in his presence, or, in the case of a body corporate, by its counsel or solicitor.
5 269O      (1)    The court by which a defendant is declared to be liable to supervision under this Part may-
(a)    release the defendant unconditionally; or
(b)    make an order (a supervision order)-
(i)committing the defendant to detention under this Part; or
(ii)releasing the defendant on licence on conditions decided by the court and specified in the licence.

(2) If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.
(3) At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.

6 269Q      (1)    If a defendant is declared to be liable to supervision under this Part, the Minister must, within 30 days after the date of the declaration, prepare and submit to the court by which the declaration was made a report, prepared by a psychiatrist or other appropriate expert, on the mental condition of the defendant containing-
(a)    a diagnosis and prognosis of the condition; and
(b)    a suggested treatment plan for managing the defendant’s condition.

(2)    If a supervision order is made against the defendant, the Minister must arrange to have prepared and submitted to the court, at intervals of not more than 12 months during the limiting term, a report containing-
(a)    a statement of any treatment that the defendant has undergone since the last report; and
(b)    any changes to the prognosis of the defendant’s condition and the treatment plan for managing the condition.

[s 269Q insrt Act 91 of 1995 s 3; am Act 39 of 2000 s 10, opn 29 Oct 2000]
7 R v Nylander (2003) SASC 191 and R v Symonds (1999) SASC 217

Trial of defendant’s mental fitness to stand trial
A

(1)The court-

(a)must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant’s mental fitness to stand trial; and

(b)may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.

(2)The power to require an examination and report under subsection (1)(b) may be exercised-

(a)on the application of the prosecution or the defence; or

(b)if the judge considers the examination and report necessary to prevent a possible miscarriage of justice - on the judge’s own initiative.

(3)At the conclusion of the trial of the defendant’s mental fitness to stand trial, the court must decide whether it has been established, on the balance of probabilities, that the defendant is mentally unfit to stand trial and-

(a)if so - must record a finding to that effect;

(b)if not - must proceed with the trial in the normal way.

[subs (3) subst Act 39 of 2000 s 8, opn 29 Oct 2000]

(4)(Repealed)

[subs (4) rep Act 39 of 2000 s 8, opn Oct 2000]

(5)The court may, if the prosecution and the defence agree-

(a)dispense with, or terminate, an investigation into a defendant’s fitness to stand trial; and

(b)record a finding that the defendant is mentally unfit to stand trial.

(2) If the counsel for the defendant in criminal proceedings (apart from proceedings under this Part) has reason to believe that the defendant is unable, because of mental impairment, to give rational instructions on questions relevant to the proceedings (including whether to be tried by judge alone), the counsel may act, in the exercise of an independent discretion, in what the counsel genuinely believes to be the defendant’s best interests.
[subs (2) insrt Act 39 of 2000 s 15, opn 29 Oct 2000]
[s 269W insrt Act 91 of 1995 s 3]

[2003] SADC 114

1 August 2003