R v McGlynn - [2011] SASCFC 74

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Appeal against sentence - appellant convicted of robbery - appellant approached victim and stole $500 after she had withdrawn money from bank - sentenced to six years' imprisonment with a non-parole period of five years - whether sentence manifestly excessive.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 74
Court 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.…

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 McGlynn

Details

AGLC: R v McGlynn [2011] SASCFC 74
Case: [2011] SASCFC 74
Decision Date: 29 July 2011

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, R v McGlynn, who had been convicted of robbery. The appellant had approached the victim after she withdrew money from a bank, pushed her to the ground, and stole $500 from her pocket. He was sentenced to six years' imprisonment with a non-parole period of five years. The appeal was heard by Sulan, Vanstone, and White JJ.

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

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. Since then, he has appeared regularly in courts in South Australia charged with various offences, including assault, stealing, damaging property, robbery, armed robbery and driving offences. He served various sentences of imprisonment, the first of which commenced in 1993. In August 2003, he appeared before the District Court charged with multiple offences of armed robbery, illegal use, assault with intent to rob, attempted larceny and assault with intent to resist lawful apprehension. He was found mentally unfit to stand trial. The objective elements of the offences were proved, and the Court imposed a limiting term of 20 years. At that time, the Court had regard to reports from two experienced psychiatrists, Dr Raeside and Dr Nambiar and an experienced forensic psychologist, Mr Balfour. The Judge concluded that Mr McGlynn is at the lower end of intellectual functioning, and that he was under the influence of drugs and alcohol when he committed the offences which took place over a one-week period. On 23 June 2010, the appellant was released on licence to a supported residential facility. Two weeks after his release, he committed the offence which is the subject of this appeal. The circumstances of this offending are that, at about 3.30 pm, the victim went to a bank in Salisbury where she withdrew $600. As she left the bank, the appellant approached her and pushed her, causing her to fall to the ground, hitting her head. When she was on the ground, the appellant scuffled with her and twisted her arm. He then put his hand into the pocket of her pants and took $500 from her. He also took some medication that she was carrying. After he had taken the money, he ran away. The appellant was arrested the same day. After his arrest and arraignment, a psychiatric examination was conducted to determine his fitness to plead. Dr Brereton, his treating psychiatrist, concluded that the appellant was mentally fit to stand trial. Dr Brereton concluded that the appellant suffers from an intellectual disability, schizophrenia and also has an antisocial personality disorder. Dr Brereton observed that, when the appellant had been discharged on licence from James Nash House on 15 December 2009, he had been making good progress. He had undertaken a six‑month period of transitional leave from James Nash House without incident. He appeared to be making good progress. When Dr Brereton saw him on 29 June 2010, he was mildly distressed because his mother had been admitted to hospital. On 6 July 2010, Dr Brereton received a phone call from the appellant. The appellant was distressed and tearful. He told Dr Brereton he had difficulties in adjusting to life in the community without the support he had been receiving in James Nash House. He had again used illicit drugs, including heroin and amphetamines. On 7 July 2010, a forensic community team saw the appellant. When they saw him, his mental state was stable but he was expressing dissatisfaction with his accommodation. It was later that day that he committed the offence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

In the present case, there are similarities in respect of this offending and that of Betts. Furthermore, in this case, as I have observed, the appellant is subject to an assessment by psychiatrists once he has completed his sentence, and to a determination by the Court as to whether he should be released on licence, and any conditions relating to that release.Conclusion In my view, the sentence and non-parole period were manifestly excessive. I consider a starting point of five years’ imprisonment, reduced to three years and nine months’ imprisonment, having regard to the plea of guilty, is appropriate. I would set a non-parole period of two years and two months’ imprisonment, the sentence and non‑parole period to commence at the time that the appellant was taken into custody on 7 July 2010. VANSTONE J: I agree with the orders proposed by Sulan J and with his reasons. I agree with the orders proposed by Sulan J and with his reasons.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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