SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MCGLYNN
[2011] SASCFC 74
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice White)
29 July 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
Appeal against sentence - appellant convicted of robbery - appellant approached victim and stole $500 after she had withdrawn money from bank - sentenced to six years' imprisonment with a non-parole period of five years - whether sentence manifestly excessive.
Discussion of appellant's criminal record and imposition of limiting term - whether the sentencing Judge had sufficient regard to the psychiatric assessment of the appellant.
Held: Appeal allowed - sentence manifestly excessive - new sentence imposed of three years and nine months' imprisonment with a non-parole period of two years and two months' imprisonment.
Criminal Law Consolidation Act 1935 (SA) s 137(1), referred to.
R v Wilson [2009] SASC 92; Markarian v The Queen (2005) 228 CLR 357; The Queen v Van Huizen (unreported judgment No 2132, Supreme Court of South Australia, 23 January 1990); R v Betts [2011] SASCFC 27, considered.
R v MCGLYNN
[2011] SASCFC 74Court of Criminal Appeal: Sulan, Vanstone and White JJ
SULAN J: The appellant pleaded guilty to the offence of robbery.[1] The maximum penalty for the offence is 15 years’ imprisonment. The offence is committed if a person steals from another and, at the time, uses force against that other person to commit the theft. I shall deal with the details of the offending later but, in summary, the appellant approached the victim when she came out of a bank. He pushed her over and took $500 from her. He also took some medication which she was carrying.
[1] Criminal Law Consolidation Act 1935 (SA) s 137(1).
On 2 May 2011, the appellant was sentenced to six years’ imprisonment, with a non-parole period of five years, to commence on 7 July 2010 when the appellant was taken into custody. He has appealed on the ground that the sentence is manifestly excessive. In relying on that ground, the appellant does not identify any specific errors on the part of the sentencing Judge. He simply submits that the sentence was so severe and so much higher than was reasonable in the circumstances that the excessive severity of the sentence demonstrates error on the part of the sentencing Judge.
For the reasons which follow, I consider that the sentence is manifestly excessive. I would allow the appeal, set aside the sentence and impose a sentence of three years and nine months’ imprisonment, with a non-parole period of two years and two months’ imprisonment.
Background
The appellant has an unfortunate history. He is 37 years of age and has an extensive criminal record. In 1985, he committed a number of offences of stealing.…
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- AGLC
- R v McGlynn [2011] SASCFC 74
- Case
- [2011] SASCFC 74
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the sentence imposed was manifestly excessive, given the circumstances of the offence and the appellant's background. The court was required to consider the appellant's extensive criminal history, including previous convictions for robbery and armed robbery, as well as his intellectual disability, schizophrenia, and antisocial personality disorder. The court also had to consider his recent release on licence and his progress in a supported residential facility prior to the commission of the offence.
The court reasoned that while the appellant's criminal history and the nature of the robbery were serious, the sentence of six years' imprisonment with a five-year non-parole period was disproportionate. The court took into account the appellant's plea of guilty and the psychiatric reports which indicated he suffered from significant mental health issues and intellectual disability, and that he was experiencing difficulties adjusting to community life and had relapsed into drug use. The court considered a sentence of three years and nine months' imprisonment, with a non-parole period of two years and two months, to be more appropriate, reflecting a starting point of five years reduced for the guilty plea.
The appeal was allowed, the sentence was set aside, and a new sentence of three years and nine months' imprisonment was imposed, with a non-parole period of two years and two months. This sentence was ordered to commence from the date the appellant was taken into custody.
Orders
Orders of the court
Appeal allowed
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: WHITE J
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