R v Glen [1994] NSWCCA 1

R v Glen [1994] NSWCCA 1

The appellant's claim that he misunderstood his guilty plea was rejected because his written instructions, his solicitor's acceptable evidence and his own cross-examination showed he understood he was pleading guilty to non-consensual intercourse. The sentencing judge did not overlook the mitigating matters relied on, and the complainant's forgiving attitude could not govern sentence, particularly in a domestic violence context. The offence was serious, involved absence of consent, occurred in a public place, and the total sentence was within the appropriate range despite an identified factual error about resumption of sexual relations not vitiating the sentence.

Jurisdiction
Australia
Judgment Date
19 December 1994
Procedural Posture
Criminal Appeal Against Conviction and Sentence Following Plea of Guilty to Sexual Intercourse Without Consent / Court of Criminal Appeal Appeal From District Court Sentence by Saunders DCJ
Outcome
Appeal dismissed
Legal Topics
['application to Set Aside Plea of Guilty' 'sexual Intercourse Without Consent' 'domestic Violence' 'victim Forgiveness in Sentencing' 'general Deterrence']
['criminal Law and Procedure' 'sentencing'] ['application to Set Aside Plea of Guilty' 'sexual Intercourse Without Consent' 'domestic Violence' 'victim Forgiveness in Sentencing' 'general Deterrence']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Sentence Following Plea of Guilty to Sexual Intercourse Without Consent / Court of Criminal Appeal Appeal From District Court Sentence by Saunders DCJ

Legal Issues

  1. 1 ['Whether the appellant should be permitted to withdraw or set aside his plea of guilty on the basis that he misunderstood that the plea admitted absence of consent.' "Whether the sentencing judge erred by failing to give adequate weight to the appellant's lack of relevant prior record, emotional background, remorse and the complainant's attitude." 'Whether the sentence of a two year minimum term and two year additional term was outside the appropriate range.']

Ratio Decidendi

The appellant's claim that he misunderstood his guilty plea was rejected because his written instructions, his solicitor's acceptable evidence and his own cross-examination showed he understood he was pleading guilty to non-consensual intercourse. The sentencing judge did not overlook the mitigating matters relied on, and the complainant's forgiving attitude could not govern sentence, particularly in a domestic violence context. The offence was serious, involved absence of consent, occurred in a public place, and the total sentence was within the appropriate range despite an identified factual error about resumption of sexual relations not vitiating the sentence.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed and conviction confirmed.' 'Leave to appeal against sentence granted but the appeal dismissed.' 'Time to count.']