REGINA v GLOVER [2003] NSWCCA 414

New South Wales Court of Criminal Appeal

CITATION : REGINA v GLOVER [2003] NSWCCA 414 HEARING DATE(S) : 17 December 2003 JUDGMENT DATE : 17 December 2003

JUDGMENT OF : Handley JA at 1, 21; Grove J at 19; Adams J at 20 DECISION : Leave to appeal refused

CATCHWORDS : Appeal - sentence - no question of principle PARTIES : Regina v Andonia Glover FILE NUMBER(S) : CCA 60236/03 COUNSEL : T. Game SC (Appellant) E. Wilkins (Crown) SOLICITORS : McGowan Lawyers (Appellant) Director of Public Prosecutions (NSW) (Crown)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/41/0008 FILE NUMBER(S) : LOWER COURT Hosking DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60236 of 2003

HANDLEY JA GROVE J ADAMS J

17 December 2003 REGINA v ANDONIA GLOVER Judgment 1 HANDLEY JA: The applicant Andonia Glover pleaded guilty before Hosking DCJ to a charge of solicit to murder, the intended victim being her husband. The proceedings on sentence were heard over three days. On the last day the Judge gave lengthy ex tempore reasons for sentencing the applicant to a term of imprisonment for four years with a non-parole period of twenty months. 2 The applicant sought leave to appeal and appeared before this court as presently constituted on 19 November. The court then became concerned at statements made by Mrs Glover, who was appearing in person, as to her medical condition and the treatment that she had received or not received since her imprisonment. 3 The court was also concerned that she did not have any legal representation. In those circumstances the court, for reasons I then expressed, adjourned the matter to today to give the Crown the opportunity to place additional medical evidence before the court directed to the matters that Mrs Glover had raised. We also recommended that the Legal Aid Authorities reconsider Mrs Glover's position so that hopefully she could be legally represented today. 4 The parties have taken advantage of the adjournment. The court has considerably more medical material about the applicant's medical condition and the treatment that she has received in custody. This includes a statement by Dr Roberts, employed by the Department of Corrective Services in the Corrections Health Service, who has had overall responsibility for Mrs Glover's treatment; and two reports by Professor John Dwyer from the University of New South Wales. Professor Dwyer did not see the applicant but had access to the written material and the clinical records of the Corrections Health Service, which the applicant allowed to be disclosed to any expert consulted by the Director. Although the statement of Dr Roberts and the reports of Professor Dwyer have not been sworn Mr Game did not raise any objection to the court receiving that material and acting on it as evidence. 5 The applicant is now represented by solicitors and by Mr Game SC, a very experienced criminal advocate, who has put before the court additional material comprising two affidavits by Frances McGowan, each of 16 December. 6 The court now has a much fuller picture of the treatment that the applicant has been receiving since she was committed to prison and the current state of her health as assessed by Dr Roberts and Professor Dwyer. Her own material in reply includes a further report by Dr De Sailly, who has treated the applicant as a general practitioner for something of the order of twenty years and an up-to-date report by Dr Tymms, who has treated the applicant in the past for some of her medical conditions including what she assessed as mild lupus and Graves disease, a disorder of the thyroid gland. 7 There are some differences in the medical assessment of the applicant, in the evidence filed on her behalf and the evidence filed on behalf of the Crown but there is a broad degree of common ground and the differences seem to be matters of emphasis or degree. All the doctors consider that the applicant's medical condition would improve if she was not in custody. They all comment on the levels of stress that she is experiencing because of her enforced separation from her two sons, the younger of whom is in the custody of her parents while the elder appears to be in the custody of her husband's parents - although the husband is entitled to custody. 8 It is clear from the medical material and from what the applicant said that she is very concerned, very stressed, very upset and very worried about her sons and the situation in which they find themselves with her in prison. She is most anxious to be at liberty and to be able to look after, certainly, the younger son but also her elder son and the effect of her enforced incarceration is clearly very troublesome, very worrying and very disturbing for her. 9 There was extensive material before the sentencing Judge from the Crown and from the defence including a considerable amount of medical material. Dr De Sailly not only gave evidence in report form but he also was called to give oral evidence. However, for whatever reason the applicant elected to remain silent and did not give evidence in the sentencing proceedings, limiting herself to her plea of guilty. 10 The sentencing Judge commented on the absence of the applicant from the witness box and said that he had not heard from her own lips why she had committed this crime and what was going on in her mind at the time. However, he did note, particularly from the evidence of Dr De Sailly, a history of domestic violence involving physical trauma to the applicant for which clearly her husband would have been responsible. There was also a history of numerous complaints of violence to the Queanbeyan police. 11 On the basis of this evidence the Judge was satisfied that the husband had exhibited significant violence towards the applicant over a period of many years and that she was in fear of him. His Honour also noted that the applicant had not exactly been an enthusiastic and fully committed inciter of the murder of her husband; that the contacts with the undercover policeman had gone on over a considerable of time without the project moving forward and he accepted that her intention either might have changed or, at least, wavered after the initial contact. He considered, and rightly so, that this change of intention was most relevant. He said that she may have only have had that intention for a period of a week or two and he treated this, again appropriately, as a significant mitigating factor. 12 Nevertheless the crime is of a very serious nature and despite the mitigating features the Judge concluded that he had no option but to impose a sentence involving full time imprisonment. That view has not been challenged before us. His Honour gave her a discount of twenty per cent, which was intended to reflect her plea of guilty, its utilitarian value and the contrition, which he accepted lay behind that plea. He sentenced her to a period of four years imprisonment with a non-parole period of twenty months, which is due to expire in May 2004. 13 Mr Game has placed considerable emphasis, as was appropriate, on the medical evidence now before the court and contrasted it with the medical evidence before the learned sentencing Judge. He submitted that even on the evidence before the sentencing Judge he had failed to fully evaluate the likely effect of the sentence on the applicant and he identified what he submitted were a number of discrete errors. 14 In his remarks on sentence the Judge referred to the fact that Mrs Glover's general practitioner, Dr De Sailly was of the view that her condition may deteriorate to the point where she might need hospitalisation while in custody. He said that whether or not that would happen he could not tell but he made a recommendation to the Department of Corrective Services that she be given appropriate medication and medical treatment as she reasonably required. 15 Having carefully considered the medical evidence, both before the sentencing Judge and before this court, and acknowledging that the evidence is fuller and far more comprehensive and some aspects are easier to understand, nevertheless it seems to me that all the matters that have been referred to in the medical evidence filed in this court were referred to in the evidence before the sentencing Judge. There has been no overall change in her medical condition falls outside the range of reasonable foresight at the time of the sentencing proceedings. 16 Mr Game also referred to the remarks of the sentencing Judge that the sentence would bear heavily on the youngest child, aged nine and he submitted that the Judge overlooked the impact of the sentence on the eldest child and did not and could not have fully foreseen the stress that the applicant would experience during her full time imprisonment as a result of her enforced separation from her children. 17 Again, with respect to that argument I have concluded that the effect of the imprisonment on both the boys and the applicant has been not greatly different from what might reasonably have been foreseen at the time the sentence was passed. I am unable to infer error on the part of the learned sentencing Judge simply because he does not specifically mention the stress on the eldest child and only mentions the stress on the youngest. I do not accept that he overlooked the fact that there were two children and it is clear to me what his Honour was doing was emphasising that the younger of the two boys would feel the results of the separation more keenly than the elder. 18 In all the circumstances I have not been persuaded that the new medical evidence is such that this court should interfere with the sentence and I therefore propose that leave to appeal be refused. 19 GROVE J: I agree. 20 ADAMS J: It seems to me that this appeal did in fact raise significant questions, which have been of importance, as to the health and treatment of this offender. It seems to me that leave to appeal ought be granted but I would agree that the appeal should be dismissed upon the basis that it has not been shown that there was error below. 21 HANDLEY JA: The order of the court will be leave refused. **********