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Court of Criminal Appeal 2 August 2000

Regina v Glynn

[2000] NSWCCA 291

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE NO QUESTION OF PRINCIPLE.

Citation: Regina v Glynn [2000] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 2 August 2000
Judge(s): Newman J, Sperling J

Background

The applicant pleaded guilty in the District Court to two charges arising from an incident on 4 November 1998 at Cremorne: malicious wounding of a man he had never previously met, and malicious damage to a door and door jamb. The victim was in a current relationship with a woman who had previously been in a relationship with the applicant.

Following a disagreement between the victim and the woman, the woman spent time at the applicant's home. The sentencing judge found that the applicant then went to the victim's flat, forced his way in, and repeatedly struck and kicked the victim, who fled the flat bleeding profusely from a head laceration requiring sutures.

Christie DCJ in the District Court sentenced the applicant to a minimum term of 15 months and an additional term of nine months on the wounding charge, with a concurrent one-month term for the property damage. The applicant sought leave to appeal against sentence in the Court of Criminal Appeal.

  • Whether the sentence imposed by the District Court was manifestly excessive having regard to both the objective circumstances of the offending and the subjective circumstances of the offender.
  • Whether a custodial sentence was warranted at all in the circumstances.

Decision

The Court of Criminal Appeal accepted that a custodial sentence was warranted. The court acknowledged the seriousness of forcing entry into a private home and beating the occupant, and did not treat the applicant's misplaced sense of protectiveness towards the woman as excusing or justifying his conduct.

However, the court found the original sentence manifestly excessive. In reaching that conclusion, the court distinguished this case from assaults committed for baser motives or resulting in more serious injury. It also took into account relevant subjective considerations: the applicant had only a prior conviction for assault of unknown degree approximately ten years earlier, which the sentencing judge regarded as of little relevance, and evidence that the applicant was not generally prone to violence.

Sperling J concluded that the approximately two and a half months the applicant had served before being granted bail pending the appeal represented an adequate penalty. The sentence was quashed and the applicant was re-sentenced to fixed terms that, by the date of the appeal decision, he had already served.

Newman J agreed with Sperling J's reasons and orders, noting expressly that the effect of the re-sentencing was that the applicant had already completed his sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • Re-sentenced on the first count (malicious wounding) to a fixed term of imprisonment of two months and two weeks, commencing 17 February 2000.
  • Re-sentenced on the second count (malicious damage to property) to a fixed term of imprisonment of seven days, commencing 17 February 2000.
  • The court noted that the applicant had already served the re-imposed sentence by the date of the decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that breaking into a private home and assaulting the occupant is a serious matter warranting a custodial sentence, even where the offender acts from a misguided sense of protectiveness rather than a baser motive.
  • A misplaced sense of duty or protectiveness does not excuse or justify conduct of this nature, but it remains a relevant factor distinguishing the offending from more serious categories of assault.
  • Manifestly excessive sentencing can result in the entire original term being set aside and replaced with a fixed term equivalent to time already served on bail pending appeal.
  • Where prior criminal history is limited and dated (here, a single assault conviction approximately ten years earlier), a sentencing court may properly treat it as of little relevance to the exercise of the sentencing discretion.
  • In re-sentencing, the court considered both objective factors (the nature and extent of the injuries, the forced entry, the premeditated intention to assault) and subjective factors (limited criminal history, evidence of non-violent character) to arrive at a proportionate penalty.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited in the judgment text. The offence of malicious wounding carries a maximum penalty of seven years' imprisonment; malicious damage to property carries a maximum of five years' imprisonment (as referenced in the judgment).

Cases:
- No cases were cited in the judgment.