R v McGlynn - [2004] SASC 55

R v McGLYNN
[2004] SASC 55
Court of Criminal Appeal: Doyle CJ, Perry and Debelle JJ

DOYLE CJ I would dismiss the appeal. I agree with the reasons given by Debelle J.
PERRY J I agree that the appeal should be dismissed for the reasons given by Debelle J.
DEBELLE J This is an appeal against the terms of a supervision order made pursuant to s 269O of the Criminal Law Consolidation Act 1935 (“the Act”). The appeal is made pursuant to s 269Y(2) of that Act which provides:
“An appeal lies to the appropriate appellate court against a supervision order in the same way as an appeal against sentence.”
This Court is the appropriate appellate court. An appeal against sentence may be made by leave of this Court. The appellant has been granted leave to appeal.
The appellant was charged with a number of serious crimes. He elected to be tried by judge alone. On 28 March 2003 a judge of the District Court exercising the powers vested in that Court by s 269MA of the Act found that the appellant was mentally unfit to stand trial. The judge then proceeded pursuant to s 269MB to determine whether the objective elements of each of the offences had been established. He found that each of the objective elements had been established beyond reasonable doubt and declared the appellant liable to supervision under Part 8A of the Act: see s 269MB(2) of the Act.
It was then necessary for the judge to make a supervision order pursuant to s 269O of the Act and to fix what s 269O calls “a limiting term”. The judge fixed a limiting term of 20 years. The appellant appeals against the length of that term.
It is convenient to set out the terms of s 269O:
“       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.¹
(3)    At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
¹The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant’s mental impairment.”
The footnote numbered “1” forms part of the Act: see s 5(2) of the Act which provides:
“A note to a section or…

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 [2004] SASC 55
Case: [2004] SASC 55
Decision Date: 27 February 2004

CaseChat Overview and Summary

In the case of R v McGlynn, the appellant, found to be mentally unfit to stand trial, appeals against the length of the limiting term set by the District Court pursuant to s 269O of the Criminal Law Consolidation Act 1935. The appellant argues that the sentencing judge placed insufficient weight on his mental condition and low intelligence, and that the limiting term was manifestly excessive. The appeal was heard by the Court of Criminal Appeal, which dismissed the appeal, finding that the limiting term was not manifestly excessive. The Court held that the limiting term should be fixed by reference to the sentence that would have been imposed if the defendant had been convicted of the relevant offence, without taking account of the defendant’s mental impairment, in accordance with s 269O(2) of the Act. The Court also found that the sentencing judge had properly considered the appellant’s mental condition and low intelligence, albeit not in determining the limiting term, but in considering general and personal deterrence.

The Court of Criminal Appeal found that the appellant’s submissions misconceived the purpose and intent of s 269O. The Court held that the limiting term is to be fixed by reference to the head sentence of imprisonment and not to the non-parole period. The note to s 269O(2) expressly requires the Court to disregard the offender’s mental impairment when fixing the limiting term. The Court also noted that the policy expressed in s 269O and s 269P of the Act, and in the following provisions in Part 8A of the Act, is that a person with a mental impairment who is subject to a supervision order will be under supervision during the limiting term but, if the offender’s mental condition improves and the offender establishes the other matters prescribed in Part 8A, the offender may be released unconditionally or released on licence.

The Court of Criminal Appeal also found that the appellant’s first ground of appeal, that the judge placed insufficient weight on the appellant’s mental condition and low intelligence, failed. The Court found that the sentencing remarks showed that the judge had regard to those factors when considering the question of general and personal deterrence. The Court held that the sentence reflected those considerations and that the judge did not transgress the injunction to s 269O(2) to disregard the appellant’s mental impairment. The Court also found that the appellant’s second ground of appeal, that the judge placed too much weight on general deterrence, failed for the reasons set out above.

Finally, the Court of Criminal Appeal considered whether the limiting term was manifestly excessive having regard to the appellant’s low level of intelligence. For the reasons which follow, the Court found that the term was not manifestly excessive. The appellant was sentenced for 13 serious crimes, including armed robbery, assault with intent to rob, and illegal use of a motor vehicle. The Court found that the gravity of the offending was accentuated by the fact that in the case of eight offences the appellant was armed, using weapons such as a machete, a knife, a syringe, and a large stick. The Court held that the seriousness of the offending and the number of offences was such that the head sentence was well within the bounds of a proper exercise of the discretion to fix a limiting term. The Court also found that the sentencing judge had regard to all relevant factors and that it was not submitted that he did not. For all of these reasons, the appeal was dismissed.

Orders