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Supreme Court 1 October 1999

R v Glen

[1999] NSWSC 1018

Sexual offencesHomicide
DAVID JACK GLEN JUDGMENT

Citation: R v Glen [1999] NSWSC 1018
Court: Supreme Court of New South Wales (Common Law Division)
Date: 1 October 1999
Judge(s): Wood CJ at CL

Background

The applicant was convicted of the murder of a 10-year-old girl and sentenced to life imprisonment by Wood CJ at CL on 22 December 1986. The offence involved the abduction, sexual assault, and killing of a young child in circumstances the court described as hideous. The applicant had been in custody since his arrest on 18 October 1985, meaning he had served approximately 14 years at the time of the application.

The applicant filed an application for redetermination of his life sentence under s 13A of the Sentencing Act on 12 October 1993, almost eight years after his arrest. That application remained before the court for nearly six years, during which it was called over on multiple occasions, largely because the applicant was not ready to proceed.

At the hearing, the applicant sought an adjournment to approximately June 2000 to allow him to complete the Sexual Offenders Redirectional Training (SORT) programme. His counsel acknowledged the applicant's rehabilitation remained in a state of fluidity. In the alternative, the applicant sought a reduction in the mandatory two-year waiting period before any fresh application could be made.

  • Whether the application for redetermination of the life sentence should be adjourned to allow the applicant to complete the SORT programme
  • Whether the court should dismiss the s 13A application in circumstances where the applicant's rehabilitation was recent and untested
  • Whether the two-year minimum waiting period before a further application should be reduced

Decision

Wood CJ at CL refused the adjournment, finding it wholly inappropriate for an application to remain unresolved for six years. The court noted that as recently as March 1999, the applicant had resisted encouragement to engage in psychological counselling and participate in sexual offender programmes. His attitude had changed only after the most recent call-over, making his progress very recent and as yet untested.

The court dismissed the substantive application for redetermination. In reaching that conclusion, the court applied principles from decisions including Cribb, Lanigan, and Dennis, which establish that a s 13A application should not ordinarily be refused unless the appropriate sentence is one for the remainder of the offender's natural life, and that dismissal should not result in the offender serving longer than the offence requires. The court acknowledged those principles, but found the present case involved exceptional circumstances given the severity of the offence and the very recent, unproven nature of the applicant's apparent change in attitude.

The court accepted that the case bore some similarity to Grove J's decision in Martin Kluska (18 December 1998, unreported), where the likely minimum term on a favourable redetermination was taken into account. Applying that approach, Wood CJ at CL was satisfied that delaying a fresh application by 18 months would not disadvantage the applicant, as any minimum term subsequently fixed would be unlikely to expire before that date.

Orders Made

  • The s 13A application for redetermination of life sentence was dismissed.
  • The applicant was directed that he may present a fresh application under s 13A at a date no earlier than 18 months from 1 October 1999 (that is, not before approximately 1 April 2001), reducing the two-year period that would otherwise apply.

Key Takeaways

  • Allowing a s 13A life sentence redetermination application to remain unresolved for six years without adequate progress was described by the Supreme Court as utterly inappropriate, providing a basis to refuse a further adjournment.
  • Under the principles from Cribb, Lanigan, and Dennis, a s 13A application should not normally be refused unless the appropriate sentence is one for the remainder of the applicant's natural life, and refusal should not cause the offender to serve longer than the offence warrants.
  • Where an offender's rehabilitation is very recent and untested, that circumstance can constitute exceptional circumstances justifying dismissal of a redetermination application, even without that rehabilitation crossing the threshold of a natural life sentence.
  • The mandatory two-year waiting period before a further s 13A application may be reduced by the court in appropriate cases, and the court exercised that power here to allow a fresh application after 18 months.
  • Assessing the likely minimum term that would be imposed on a fully favourable redetermination is a relevant consideration when determining whether dismissal of an application will cause a prisoner to serve longer than the offence requires.

Legislation and Cases Referenced

Legislation
- Sentencing Act (NSW), s 13A (redetermination of life sentences)
- Sentencing Act (NSW), s 17(1) (Parole Board powers)

Cases
- R v Cribb, Court of Criminal Appeal, 4 November 1994 (unreported)
- R v Lanigan, Court of Criminal Appeal, New South Wales, 31 August 1992 (unreported)
- R v Dennis, Court of Criminal Appeal, New South Wales, 28 October 1992 (unreported)
- R v Martin Kluska, Grove J, 18 December 1998 (unreported)