R v McGlynn

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 subsection of this Act forms part of the text of the Act unless the note clearly has no substantive effect.”
Section 5(2) must override the provisions of s 19(4) of the Acts Interpretation Act 1915 which provides that a marginal note or footnote does not form part of the Act. The footnote, therefore, has a substantive operation and effect must be given to its terms.
The substance of the appeal is that the limiting term is manifestly excessive. Leave to appeal was sought on that ground. Curiously, the judge refused to grant leave on that ground. Instead, he granted leave on the following grounds.
“1.The Learned Sentencing Judge placed insufficient weight on the defendant’s mental condition and low intelligence.
2.The Learned Sentencing Judge placed too much weight on general deterrence having regard to ‘the defendant’s mental condition and low intelligence’.”
If the appellant succeeds on either of the two grounds of appeal on which leave was granted, it will then be necessary to consider whether the limiting term was manifestly excessive. The appeal was argued on that footing.
Mr Schapel, who appeared for the appellant, submitted that the judge should have had regard, not only to the gravity of the crimes viewed objectively, but also to the subjective gravity of the appellant’s offending, that is to say, he should have had regard to the matters personal to the appellant which included any relevant mental disorder or intellectual dysfunction. He relied on the observations of King CJ in Mason-Stuart v The Queen (1993) 61 SASR 204, at 205 – 206 which are to the effect that an offender of low intelligence with a substantial degree of diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others. The ends of justice, the Chief Justice said, are not served by insisting that the punishment be proportionate to the gravity of the crime viewed objectively, as distinct from the subjective gravity of the particular offender’s offending. Mr Schapel also contended that the Court had erred in R v T (1999) 75 SASR 235 when it decided that, when fixing the limiting term, no regard was to be had to matters that were based upon or arose out of the offender’s mental impairment and held that the decision in Mason-Stuart v The Queen was qualified by s 269O. For the reasons which follow, these submissions misconceive the purpose and intent of s 269O.
The limiting term in s 269O(2) is to be fixed by reference to the head sentence of imprisonment and not to the non-parole period: R v Williams (unreported, Court of Criminal Appeal, 18 December 1997, Judgment No. S6440); Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251. The sentencing judge complied with the direction in s 269O(2) and did not fix a non-parole period.
The note to s 269O(2) expressly requires the Court, when fixing what in a sense is the head sentence, to disregard the offender’s mental impairment. Thus, when fixing the limiting term, the judge was required to have regard to all matters that would usually be relevant when fixing a head sentence for the offending but not to have regard to factors which relate to the offender’s mental impairment.
In his reasons in R v T at 242, Doyle CJ said:
“ It may be that in fixing the limiting term the Court does not engage in exactly the same process that it does when imposing a sentence. Note 1 requires the Court to fix a limiting term ‘by reference to the sentence that would have been imposed’. But, in my opinion, one cannot say that the Judge should not have regard to a matter such as general and personal deterrence when fixing a limiting term under this provision. I agree that the result may seem harsh, but the terms of the provision are clear. As well, it is important to bear in mind the flexible regime for treatment that is envisaged under Pt 8A. There is no denying the impact that the fixation of a limiting term might have on T. But it is relevant to bear in mind that the limiting term does no more than fix the period during which T may be subjected to restraints under Pt 8A.”
With respect, that view is entirely correct. Indeed, s 269O(2) is expressed in such a way that it is not possible to reach any other conclusion.
The apparent harshness of the result is ameliorated by s 269P which provides:
“ 269P (1) At any time during the limiting term, the court may, on the application of the Crown, the defendant, Parole Board, the Public Advocate or another person with a proper interest in the matter, vary or revoke a supervision order and, if the order is revoked, make, in substitution for the order, any other order that the court might have made under this Division in the first instance.
(2) If the court refuses an application by or on behalf of a defendant for variation or revocation of a supervision order, a later application for variation or revocation of the order cannot be made by or on behalf of the defendant for six months or such greater or lesser period as the court may direct on refusing the application.”
Unlike a head sentence which, subject to appeal, is not capable of being varied, a limiting term may be varied in consequence of an application made pursuant to s 269P. The policy expressed in s 269O and s 269P and in the following provisions in Part 8A of the Act which follow them 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 (in particular those prescribed by s 269R), the offender may be released unconditionally or released on licence. If released on licence, the limiting term continues to operate so that, if the offender breaches a condition of his licence, the release on licence might be revoked pursuant to s 269U. This régime is, therefore, all together different from the fixing of a head sentence and of a non-parole period for offenders who do not suffer from a mental impairment.
It is plain, therefore, that Mr Schapel’s attack on the reasoning in R v T (supra) at 242 must fail. It follows that the observations of King CJ in Mason-Stuart v The Queen (supra) are qualified by the operation of s 269O. The reasoning of King CJ in Mason-Stuart v The Queen was the foundation for the second ground of appeal. No other argument was advanced in support of that ground. The second ground of appeal must be dismissed.
Mr Schapel sought to reinforce his submissions by contending that the expression ‘mental impairment’ in s 269O had no application where a person had been found to be mentally unfit to stand trial pursuant to Division 3 of Part 8A of the Act (s 269H to s 269N). He pointed to the fact that the criteria for determining mental unfitness to stand trial are not limited to mental illness which is defined in s 269A of the Act. In his submission, a court should not take into account a defendant’s mental impairment only where a defendant had been found to be mentally incompetent to commit an offence pursuant to Division 2 of Part 8A of the Act (s 269C to s 269G). That submission cannot prevail. If a defendant is found to be mentally unfit to stand trial, the court proceeds to determine whether the objective elements of the offence are established. If they are, the court must then record a finding to that effect and declare the defendant liable to supervision under Part 8A: s 269MB(2). Alternatively, if the court proceeds pursuant to s 269N and first decides that the objective elements to the offence have been established and then determines that the defendant is mentally unfit to stand trial, the court is directed by s 269NB(3) to record a finding to that effect and to declare the defendant liable to supervision under Part 8A. Thus, by either procedure, the court is directed to apply the provisions of s 269O.
The first ground of appeal complains that the judge placed insufficient weight on the appellant’s mental condition and low intelligence. The sentencing remarks show that the judge had regard to those factors. He said:
“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.”
He had regard to them when considering the question of general and personal deterrence. He said:
“ 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.”
In my view, the sentence reflects those considerations so that this ground of appeal also fails.
When having regard to those factors, the judge did not, I think, transgress the injunction to s 269O(2) to disregard the appellant’s mental impairment. It is not uncommon that an offender without a mental impairment will have a level of intelligence well below the average and regard is properly had to that when sentencing. Although the definition of mental impairment is expressed widely, I do not understand it to relate to a low level of intelligence.
The Court also considered whether the limiting term was manifestly excessive having regard to the appellant’s low level of intelligence. For the reasons which follow, the term is not manifestly excessive.
The appellant was sentenced for 13 serious crimes. I list the counts in the information with a brief statement of the circumstances of the offending and a note of the maximum penalty for each crime.
Count One – Illegal Use (section 86A of the Act)
Particulars of the offence were that the appellant, together with another, on 31 July 2001, at Enfield, used a motor vehicle without first obtaining the consent of the owner. The car was recovered later that evening. It had been used in an armed robbery during the course of the day. The armed robbery is the subject of count 2.
The 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 appellant has previous convictions for illegal use of motor vehicles.
Count Two – Armed Robbery (section 158A of the Act)
Ms Kowald was working at the Enfield Plaza Post Office. At about 11.35am on 31 July 2001, the appellant 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.
The maximum penalty for armed robbery is life imprisonment.
Count Three – Attempted Larceny (section 131 and 270A of the Act)
Ms Ey was working in a bar at the Mansfield Park Hotel on Saturday, 4 August 2001. At about 5.15pm 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.
The maximum penalty for this offence is three years and four months’ imprisonment.
Count Four – Assault with Intent to Rob (section 158A of the Act)
Ms Boothey worked at Cheap as Chips on Main North Road, Prospect. On 4 August 2001, at about 5pm, she closed the shop and went to a car in which she and a friend intended to leave. Whilst she was sitting in the car, the appellant approached her and asked for money. She wound up the window. The appellant 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.
The maximum penalty for the offence is life imprisonment.
Count Five – Illegal Use
On 4 August 2001, the appellant stole a Mazda motor car from the driveway of a house. The vehicle was located at Angle Park on 6 August 2001.
Count Six – Armed Robbery (section 158A of the Act)
On 5 August 2001, Trishia Mann was on duty at the TAB at Angle Park. At about 11.40am the appellant came into the premises with a woman. 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 July 2001, Ms Peta Jones was on duty at a newsagency at Findon. The appellant 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 26 July 2001, Amy Morris was on duty at the Pizza Hut at Enfield. The appellant 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, the appellant pressed the knife against her neck. She was unsuccessful in getting any money and the appellant eventually ran out of the office.
Count Nine – Illegal Use (section 86A of the Act)
On 27 July 2001, the appellant stole a Holden Commodore station wagon. The vehicle was located at Findon later that evening.
Count Ten – Armed Robbery (section 158A of the Act)
On Friday, 27 July 2001, Anthony Lecky was working at the Flinders Park Post Office. At about 11.22am the appellant 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 31 July 2001, the appellant 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 4 August 2001, at about 4.40pm, 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 appellant with a piece of the wood. The appellant then ran out the door.
Count Thirteen – Assault with Intent to Resist Lawful Apprehension (section 43C of the Act)
On 4 August 2001, the appellant was seen entering a bar at the Mansfield Park Hotel carrying a knife. A patron at the hotel saw the appellant attempting to remove money from behind the till. He approached the appellant who pulled out a knife and lunged at him. The patron attempted to stop him. He received a minor wound to his leg. He managed to wrestle the knife from the appellant who ran away and escaped.
The maximum penalty for the offence is imprisonment for a term not exceeding five years.
This is obviously a serious catalogue of offending.
The gravity of this offending is accentuated by the fact that in the case of eight offences the appellant was armed. The weapons included a machete, a knife (on five occasions), a syringe and a large stick. On one occasion he pressed the knife against his victim’s neck. The use of the large stick to smash the window of a car must have been terrifying to the occupants of that car. The seriousness of this offending and the number of offences is such that the head sentence is well within the bounds of a proper exercise of the discretion to fix a limiting term. 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. In addition, it is apparent from the remarks made by the sentencing judge that he had regard to all relevant factors and it is not submitted that he did not.
For all of these reasons, the appeal must be dismissed.

[2004] SASC 55

27 February 2004