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Appeal against sentence - appellant convicted of robbery - appellant approached victim and stole $500 after she had withdrawn money from bank - sentenced to six years' imprisonment with a non-parole period of five years - whether sentence manifestly excessive.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. 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.
Dr Brereton is of the opinion that the appellant’s intellectual disability reduces his ability to benefit from rehabilitation. His schizophrenia can be controlled by medication. Dr Brereton is of the opinion that the appellant can, with monitoring and supervision, be contained in his risk of re-offending.
A number of psychiatric reports were provided to the sentencing Judge, most of which had been prepared in 2009 when Mr McGlynn made an application for variation of the supervision order to permit him to be released on licence. At that time, Dr Begg reported to the Court that the appellant suffers from chronic paranoid schizophrenia, and has an acquired brain injury which has led to low intellect. He had a history of substance abuse, including alcohol, heroin and amphetamines, but that abuse was in remission. The appellant was continuing to receive injections to prevent a relapse of his schizophrenia, and that treatment was successful. He showed no signs of the effects of psychosis that would interfere with his mental functioning. Dr Begg supported an adjustment of the appellant’s licence conditions to enable him to live in the community, subject to him continuing to receive support and monitoring from the forensic mental health service. Dr Begg considered that the time of transition into the community would be stressful to the appellant, and there was a risk that he would relapse, but he considered that risk to be unlikely.
Dr Raeside observed that the appellant had been relatively settled as an in‑patient in an extended care psychiatric facility. He considered that it is important to monitor the appellant to prevent a return to alcohol and drugs but, subject to that, Dr Raeside was of the view that the appellant should be given limited day leave under his current licence conditions.
Dr Brereton, who was the appellant’s treating psychiatrist, reported on 16 November 2009 that since his incarceration in 2003, the appellant’s behaviour had been settled, he was free from psychotic symptoms, and had been participating in rehabilitation. He proposed a slow, gradual transition into the community.
Dr Nambiar agreed with the diagnosis and the opinions of Dr Brereton, as did Dr Tomasic.
In considering the appellant’s prior offending history, it should be noted that, prior to 2003, there had been no psychiatric assessment of the appellant, and his low intellect and schizophrenia had not been diagnosed. Between 1986 and 2003, therefore, the courts that dealt with him were not aware of his fragile mental state.
The sentence
In sentencing the appellant, the sentencing Judge dealt with his prior offending history. He observed that between 1986 and 1992 the appellant had been given at least seven consecutive bonds to be of good behaviour. In 1993, he was sentenced to 18 months’ imprisonment for burglary. He breached his parole and embarked on a series of criminal offences over the ensuing years, until 2003 when he appeared before the Court, was found unfit to plead and received a limiting term of 20 years.
In dealing with the appellant’s prior history of offending, the sentencing Judge does not appear to have had regard to the fact that, prior to 2003, the appellant’s fragile mental condition had not been diagnosed or brought to the attention of a sentencing court. The sentencing Judge observed that:
Every effort by the Children’s Court and adult courts over the years to encourage you to mend your ways, by way of bonds, supervision and support, have clearly had no effect whatsoever in deterring your offending.
That observation is accurate, but overlooks the fact that during those years the appellant did not receive any psychiatric assessment or adequate psychiatric support. Having regard to the reports of psychiatrists who have observed the appellant since 2003, it is clear that he requires close forensic psychiatric supervision over a long period in order to avoid further re-offending in the future.
The sentencing Judge observed:
It is plain that in your case, the seriousness of the offence, your previous history of offending, your numerous bonds and your plain contempt for the law and for the court processes, as reflected by your breaches of bond and bail over time, it is plain from all of that, that bonds, supervision, suspended sentences and intense support have had no effect whatsoever in dissuading you from your ongoing criminal activity.
One can only imagine the upset and suffering that your offending has caused to your numerous victims over the years. Regrettably, the point has been reached where the protection of the public and personal deterrence must assume particular importance.
You need to understand that from now on, when you offend, you will likely go to gaol for a very long time. Hopefully that will dissuade you in the future because nothing else has looked like working.
The Judge imposed a sentence of six years’ imprisonment, reduced from eight years on account of the plea of guilty, and set a non-parole period of five years. The sentencing Judge stated that he saw no point in a lengthy period on parole because supervision has proved entirely ineffectual in the past to deter the appellant from future offending, and it was unlikely to be effectual in the future.
In my opinion, a sentence commencing at eight years for this offending is, of itself, manifestly excessive. Further, in deciding that there is little chance of the appellant being rehabilitated, and that he would continue to offend in the future, the sentencing Judge did not have sufficient regard to the psychiatric assessment of the appellant, that he requires extensive supervision and a graduated release into the community. It is also a relevant factor that, at the conclusion of his sentence, the appellant will be subject to licence conditions which are determined by the Court. Those conditions will pertain until 2023. The sentencing Judge does not appear to have specifically considered those factors when setting the non-parole period.
Discussion
In R v Wilson,[2] this Court adopted the position of the High Court in Markarian v The Queen[3] when approaching an appeal against sentence:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”. (My emphasis)
[2] [2009] SASC 92 at 3.
[3] (2005) 228 CLR 357.
In The Queen v Van Huizen,[4] the appellant received a sentence effectively of five years’ imprisonment with a non-parole period of four years for the offence of robbery with violence. The appellant had observed the victim withdrawing money from an automatic teller machine. He, together with an accomplice, followed the victim. The appellant seized the victim around the neck, forced him into the gutter, punched him in the face, and his accomplice seized $200 which the victim had withdrawn from the bank. King CJ, with whom Prior and Duggan JJ agreed, observed:[5]
The crime to which the appellant pleaded guilty is unquestionably a serious crime. The waylaying of a person in the street at night and the use of violence towards him to steal his money is unquestionably serious and it is necessary for sentences to be imposed which deter that type of offending. It is also important, however, that the sentences which the court imposes bear a proper proportion to the degree of seriousness of the offending and, in particular, to that offending in relation to other types of offending of a more serious kind.
[4] Unreported judgment No 2132, Supreme Court of South Australia, King CJ, Prior and Duggan JJ, 23 January 1990.
[5] Ibid 2.
King CJ considered that the sentence was at the top end of the range for offences of robbery with violence. He did not consider that the offending was near to the top of the range of seriousness of crimes of this kind. The sentence was reduced to imprisonment for three years, with a non-parole period of two years. At that time, robbery with violence had a maximum penalty of life imprisonment.
In R v Betts,[6] the applicant, who was intoxicated, was a passenger in a taxi with a woman and a youth. They did not have the money to pay for the taxi which took them to Mansfield Park. The fare was $26.50. When the taxi stopped, the youth attempted to pull the taxi driver out of the taxi whilst the applicant rummaged through the front passenger’s area. The taxi driver handed over money which he had in his shirt and trouser’s pocket. He then drove away. White J observed that the incident was very distressing for the victim, who was a recent immigrant to Australia and had been driving taxis for only a few days. The applicant had a poor criminal history, which White J described as “exceeding four pages”. He had spent much of his adult life either in prison or on parole. White J observed:[7]
Nevertheless, the seriousness of the applicant’s offence has to be kept in perspective. It was an unplanned opportunistic offence. The applicant was in that taxi only by reason of the last minute invitation of Ms Cooper and there is no suggestion that any plan to rob the taxi driver was formulated during the course of the journey to Mansfield Park. It seems that that intention was formed only after the applicant had alighted from the taxi. Neither the applicant nor the youth used any weapon and, although there was some physical violence to the taxi drive, this was, in relative terms of a minor kind. Neither the applicant nor the youth engaged in excessive or gratuitous violence and, in the applicant’s case, in no violence at all apart from his menacing language. It could be said that the degree of force involved was close to the minimum necessary to effect the robbery.
[6] [2011] SASCFC 27.
[7] Ibid 3 [21].
White J, with whom Doyle CJ and Peek J agreed, considered that a starting point of six years was out of proportion to the seriousness of the offending. He reduced the starting point to four years’ imprisonment and fixed a non-parole period of two years.
Although, as this Court has stated in the past, comparing sentences in other cases has limited value because each case must be decided having regard to its own circumstances, the observation of the Court of Criminal Appeal in Betts that, for the offence of robbery, a starting point of six years was out of proportion to the seriousness of the offence, has relevance when considering the appellant’s offending.
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.
WHITE J. I agree with the orders proposed by Sulan J and with his reasons.