Citation: Regina v Glover [2003] NSWCCA 414
Court: New South Wales Court of Criminal Appeal
Date: 17 December 2003
Judge(s): Handley JA, Grove J, Adams J
Background
The appellant, a woman who had pleaded guilty before the District Court to soliciting the murder of her husband, was sentenced by Hosking DCJ to four years' imprisonment with a non-parole period of twenty months. The sentencing Judge accepted there was a significant history of domestic violence committed by the husband against the appellant, and that her commitment to the offence had wavered considerably during the period of contact with an undercover police officer. A twenty per cent discount was applied to reflect the guilty plea, its utilitarian value, and accepted contrition.
The appellant initially appeared before the Court of Criminal Appeal without legal representation, raising concerns about her medical condition and the treatment she had received in custody. The Court adjourned the matter, recommended Legal Aid reconsider her position, and directed the Crown to file additional medical evidence addressing those concerns.
When the matter returned, the appellant was represented by senior counsel and both parties had filed substantial further medical material. The central issue became whether that additional evidence, or errors said to arise from the original sentencing proceedings, warranted intervention by the appellate court.
Legal Issues
- Whether the additional medical evidence placed before the Court of Criminal Appeal disclosed a material change in the appellant's health not reasonably foreseeable at the time of sentencing.
- Whether the sentencing Judge erred in his assessment of the likely effect of imprisonment on the appellant's medical condition.
- Whether the sentencing Judge failed to adequately consider the impact of the sentence on both of the appellant's children, including the elder child.
Decision
The Court carefully reviewed the substantial volume of medical material filed for the appeal, which included reports from a treating general practitioner of approximately twenty years, a specialist who had treated the appellant for lupus and Graves disease, a Corrective Services doctor with overall responsibility for her in-custody treatment, and an independent expert from the University of New South Wales. While the appellate material was fuller and more detailed than what had been before the sentencing Judge, Handley JA concluded that all the conditions and concerns referred to in the new material had also been addressed, at least in substance, in the evidence before the sentencing Judge.
On the question of the children, Handley JA found that the effect of the imprisonment on both boys and on the appellant herself was not materially different from what could reasonably have been foreseen at the time of sentencing. The fact that the sentencing Judge emphasised the impact on the younger child did not establish that he had overlooked the elder child. His Honour's approach was understood as reflecting the greater vulnerability of the younger boy to the separation, not an omission.
No error was established in the sentencing Judge's reasoning, and the new evidence was not of a kind that warranted appellate interference with the sentence. Handley JA, with Grove J agreeing, proposed that leave to appeal be refused. Adams J took a somewhat different procedural view, considering that leave ought to have been granted given the significance of the health and treatment questions raised, but agreed that the appeal should be dismissed on the basis that no error below had been demonstrated.
Orders Made
- Leave to appeal refused.
Key Takeaways
- Appellate intervention in a sentence appeal requires demonstration of error by the sentencing court; the availability of fuller or more detailed medical evidence on appeal does not, of itself, establish such error where the underlying conditions were reasonably foreseeable at the time of sentencing.
- No error was established from the sentencing Judge's omission to specifically reference both children separately, where the overall circumstances made clear the Judge was aware there were two children and was emphasising the vulnerability of the younger.
- A guilty plea to soliciting murder, even where significant mitigating factors existed including domestic violence history, wavering intent, and personal medical conditions, did not displace the need for a term of full-time imprisonment.
- The Court of Criminal Appeal took the unusual step of adjourning the application to ensure the unrepresented appellant received both legal representation and a proper medical evidentiary basis before the matter was determined.
- Adams J's observations suggest that some members of the Court considered the health and treatment issues raised to have been substantively significant, even though the outcome was ultimately the same: the sentence was not disturbed.
Legislation and Cases Referenced
No specific legislation or cases were cited in the judgment text or metadata.