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District Court 18 April 2020

R v Glynn

[2020] NSWDC 268

Assault & violence
CRIME PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON VIOLENT OFFENCES RECKLESSLY INFLICT GRIEVOUS BODILY HARM SENTENCE

Citation: R v Glynn [2020] NSWDC 268
Court: District Court of New South Wales
Date: 18 April 2020
Judge: King SC DCJ

Background

The offender was convicted of recklessly inflicting grievous bodily harm on a neighbour, contrary to s 35(2) of the Crimes Act 1900, following a jury trial. The offence occurred on 20 June 2015 at a residential street in Earlwood, where a dispute over a branch blocking the victim's driveway escalated into a physical assault. The jury acquitted the offender of the more serious charge of intentionally causing grievous bodily harm but found him guilty of the alternative reckless count.

The victim, Mr Bablis, had died by the time the trial commenced in November 2019, meaning his evidence was admitted through prior statements to police under s 65 of the Evidence Act 1995. Medical evidence established that the assault caused a dislocated left intraocular lens requiring surgery and a fractured nose.

The path to sentencing was protracted and troubled. The offence occurred in June 2015, committal followed in March 2016, and the trial did not commence until November 2019 after three prior listings were vacated. During the trial itself, the offender withdrew instructions from two lawyers, briefly represented himself, and was the subject of findings that he had attempted to intimidate a police officer and civilian witnesses in the courthouse.

  • What sentence was appropriate for a single offence of recklessly inflicting grievous bodily harm, given the circumstances of the offending?
  • What weight should be given to the lengthy delays in proceedings, and to what extent was the offender responsible for those delays?
  • What effect did the offender's conduct during the trial, including alleged witness intimidation and repeated withdrawal of legal representation, have on sentencing?
  • Did special circumstances exist to justify reducing the standard ratio between the non-parole period and the balance of term?

Decision

The court accepted beyond reasonable doubt that the offender punched the victim repeatedly to the face, causing the nasal fracture and the dislocated intraocular lens that formed the basis of the grievous bodily harm charge. The offender also struck the victim over the head with a branch and continued to punch him to the body. The victim's daughter and the offender's own daughter both denied that any punch was thrown, but the court treated this evidence as implicitly rejected by the jury.

King SC DCJ addressed the significant delays between offence and trial, noting that some were attributable to the offender himself, particularly the vacating of the October 2016 trial date because he was then unrepresented, and the adjournment of the second listing after he obtained representation only on the day of trial. The Crown's application to vacate the third listing in July 2018, due to the victim's ill health, was treated as neutral. Overall, the court did not treat the delays as substantially mitigating given the offender's contribution to them.

The court found the offender's conduct during the trial to be an aggravating matter. His withdrawal of instructions from two lawyers at critical moments, his attempts to intimidate a police officer and civilian witnesses outside the courtroom, and his periods of self-representation were all taken into account. The court observed that the second withdrawal of instructions appeared calculated to seek continuing bail rather than reflecting any genuine breakdown in the lawyer-client relationship, as bail was refused regardless.

On subjective matters, the court took into account that this was the offender's first time in custody and accepted findings from a psychological or psychiatric report by Dr John Roberts, as well as material from a report by Ms Boursiani. Special circumstances were found on the basis of the offender being a first-time custodial offender, justifying a significant departure from the standard one-third to two-thirds ratio between non-parole period and balance of term.

Orders Made

  • The offender was convicted of recklessly inflicting grievous bodily harm on the victim.
  • Sentenced to a total term of imprisonment of two years and six months.
  • Special circumstances found; the non-parole period was set at one year and three months.
  • Sentence backdated to account of four days previously spent in custody (one day on arrest, three days during trial).
  • Sentence to commence 12 April 2020; first eligible for parole 11 July 2021; total term to expire 11 October 2022.
  • A backup offence subject to a s 166 certificate was withdrawn and dismissed.

Key Takeaways

  • A defendant's own contribution to trial delays is a relevant consideration at sentencing and may reduce or eliminate any mitigation that might otherwise flow from the lapse of time between offence and sentence.
  • Conduct during the trial itself, including attempts to intimidate witnesses and police within the courthouse and the strategic withdrawal of legal representation, can properly be treated as aggravating matters at sentencing.
  • Where a defendant experiences custody for the first time as a result of the offence for which they are being sentenced, this can constitute special circumstances under the Crimes (Sentencing Procedure) Act 1999, justifying a reduction in the standard non-parole period to balance of term ratio.
  • The District Court confirmed that prior statements of a deceased witness are admissible at trial under s 65 of the Evidence Act 1995, and factual findings at sentence can be based on such evidence where the jury's verdict implicitly rejects conflicting testimony.
  • Grievous bodily harm sustained through repeated punching to the face, causing a dislocated intraocular lens requiring surgery and a fractured nose, supported a finding of the requisite level of harm for a charge under s 35(2) of the Crimes Act 1900.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2) (recklessly inflict grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW), s 65 (hearsay exception for criminal proceedings)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Crimes Act 1914 (Cth)

Cases: No cases were cited in the judgment text provided.