New South Wales Court of Criminal Appeal CITATION : Regina v Glynn [2000] NSWCCA 291 FILE NUMBER(S) : CCA 60089/00 HEARING DATE(S) : 2 August 2000 JUDGMENT DATE : 2 August 2000 PARTIES : Regina v John Peter Glynn JUDGMENT OF : Newman J at 14; Sperling J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/1037 LOWER COURT JUDICIAL Christie DCJ OFFICER : M Thangaraj (Applicant) COUNSEL : R D Ellis (Crown) John De Mestre & Co (Applicant) SOLICITORS : S E O'Connor (Crown) CATCHWORDS : Criminal law - appeal against sentence - no question of principle. DECISION : See paragraph 13. IN THE COURT OF CRIMINAL APPEAL CCA60089/00 NEWMAN J SPERLING J Wednesday, 2 August 2000 REGINA v John Peter GLYNN JUDGMENT 1 SPERLING J: The appellant pleaded guilty to two charges. The first that on 4 November 1998 at Cremorne he maliciously wounded Andrew Keily and, secondly, at the same time and place he maliciously damaged a door and door jamb. 2 The applicant was sentenced to imprisonment for a minimum term of 15 months and an additional term of nine months on the first charge. On the second charge he was sentenced to a concurrent term of imprisonment of one month. The maximum penalties for the offences charged are respectively imprisonment for seven years and five years. 3 Prior to this episode the applicant and Mr Keily had never met. The applicant had been in a relationship with a Ms Stoddart at an earlier time and an acquaintanceship of some kind had continued. Ms Stoddart was in a current relationship with Mr Keily. 4 On 4 November 1998, Ms Stoddart and Mr Keily had gone to a barbecue together. Following a disagreement, Mr Keily went home to his own flat and Ms Stoddart was for a time as the judge found in favour of the applicant, in the applicant's company at the applicant's home. 5 The sentencing judge also found in favour of the applicant, that Mr Keily was giving Ms Stoddart a hard time and that what the applicant did thereafter was motivated by a misplaced duty of protectiveness towards Ms Stoddart. 6 The applicant was a big man. He operated his own gymnasium business with the assistance of a manager. 7 As the sentencing judge found the facts, the applicant went to Mr Keily's flat, forced his way in, damaging the door jamb and the door in the process, forced Mr Keily into the bedroom and there hit him repeatedly and kicked him in the groin. Mr Keily ran naked from the flat to escape the applicant, bleeding profusely from the head. 8 The injury to the head consisted of a five centimetre laceration which required sutures. Mr Keily also had mild swelling around the wound and an area of bruising under the left eye. 9 Although not spelled out in terms, the unmistakable implication from the sentencing judge's remarks on sentence is that he found that the applicant went to Mr Keily's flat with the intention of assaulting him. 10 There was a prior conviction about ten years earlier for assault of unknown degree and, therefore, as his Honour said, of little relevance. There was evidence, which the judge accepted, that the applicant was not a person prone to violence. 11 One cannot but agree with the sentencing judge's observations to the effect that breaking into a private home and beating up the occupant is a very serious matter. The applicant's misplaced sense of duty does not excuse or justify such conduct. The case is, however, to be distinguished from other cases where assaults are committed for baser motives and where injury is more serious. 12 In my view a custodial sentence was warranted in this case. However, having regard to the objective circumstances of the case and to subjective considerations relevant to the particular offender, the sentence was manifestly excessive. I would regard the time served before bail was granted pending an appeal, a period of about two and a half months, as an adequate penalty. 13 The orders I propose are as follows: Grant leave to appeal. Appeal allowed. Sentence quashed. Re-sentence the applicant as follows: 1. On the first count, malicious wounding, a fixed term of imprisonment of two months and two weeks commencing on 17 February 2000. 2. On the second count, malicious damage to property, a fixed term of imprisonment of seven days commencing 17 February 2000. 14 NEWMAN J: I agree. The effect of the order of the court, of course, is that the applicant has already served his sentence, so the orders of the court will be as proposed by Sperling J. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.