Robert Glynn appears for sentence in respect of a single offence of recklessly inflict grievous bodily harm contrary to s 35(2) of the Crimes Act 1900. The maximum penalty provided is 10 years' imprisonment and there is a standard non-parole period of four years.
The offence occurred on 20 June 2015. The offender was committed for trial on 2 March 2016 and there were a total of three prior listings for trial before the trial commenced on 5 November 2019.
The first trial was listed 10 October 2016 and it was vacated on a defence application which was not opposed, as the offender was then unrepresented. It was again listed for trial on 3 October 2017 and the trial date was vacated on that occasion because the offender had obtained legal representation, but only after the first day listed for trial.
It was again listed for trial on 2 July 2018. On that occasion the trial date was vacated on a Crown application, in particular because the complainant, Mr Bablis, was not well and there was an expectation that he would have difficulty with the trial.
The trial commenced on 5 November 2019. In the intervening period Mr Bablis had in fact died. The trial continued from 5 November 2019 on a charge that the offender had caused grievous bodily harm to Tom Bablis with intent to cause grievous bodily harm.
There was however an alternative count, being Count 2 on the indictment, that he recklessly caused grievous bodily harm to Tom Bablis. The jury returned a verdict of not guilty in respect of Count 1 and guilty in respect of the alternative count.
When the trial commenced, the offender was represented by counsel. On the second day of the trial counsel indicated that shortly before 10am the offender had withdrawn his instructions and he was granted leave to withdraw from the trial.
The offender's solicitor at that stage took over the conduct of the proceedings, which on the second day were concerned with allegations raised by the Crown that the offender had endeavoured to intimidate police and a witness, Mr Colubriale, outside the courtroom. The allegation was that during the course of the day and the lunchbreak he had made comments to one of the police officers about being a "known paedophile police officer," and in effect, because of that or would have no credibility when giving evidence.
At the conclusion of the evidence that day, which ended with the cross‑examination of Mr Colubriale being part-heard, there was a further allegation that the offender had made various comments to Mr Colubriale to the effect that he was a liar and that he would burn in hell.
The allegations were aired by way of a voir dire and at the conclusion of that hearing it became apparent to the offender that his bail was about to be refused because of the attempted intimidation of both police and Crown witnesses, including the next witness that was to be called, Romina Colubriale, the daughter of the part-heard witness, who had been sitting with him outside the courtroom.
In my view, when it became evident to the offender that he was about to be refused bail, and the issue of obtaining further representation for him had been raised with Mr Livers, his solicitor, the offender then withdraw the instructions from Mr Livers.
I formed the opinion at the time that he did that because he thought that in those circumstances he would have a better prospect of being granted continuing bail so that he could obtain representation which would have been difficult while in custody, however bail was refused and he remained in custody for approximately three days while the trial continued.
Once the civilian witnesses had finished their evidence Mr Glynn was readmitted to bail. He was during those days appearing for himself. However common sense finally had some effect and he eventually engaged counsel, Mr Doyle, to appear for him at least at the conclusion of the defence case with the last defence witness, being the offender's daughter, and Mr Doyle continued through to the completion of the trial.
I have referred to those matters simply because the history of the trial is relevant and the difficulties occasioned by the conduct of the offender during the course of the trial are also relevant.
As for the facts, I accept beyond reasonable doubt that at approximately 1.30pm on 20 June 2015, Mr Bablis returned to his home at 6 Watkin Avenue, Earlwood, but was unable to drive his car into the driveway because there was a branch across the driveway obstructing his passage. He stopped his car and got out to remove the branch.
He then noticed the offender and one of the offender's daughters, Cassandra Glynn, nearby. They were standing on the street proximal to the offender's address at 2 Watkin Avenue.
Having retrieved the branch, Mr Bablis approached the offender and told him that he was in effect of the opinion that the offender had left the particular branch in his driveway. There was no evidence in the trial as to how the driveway came to be obstructed by the branch and Mr Bablis' inference that it was the offender who had placed the branch across his driveway to obstruct him may have been correct, but there is no evidence that it was. It may have been an entirely unfounded assertion which in the circumstances would no doubt have offended Mr Glynn if that were the case.
On the evidence, I am unable to reach any conclusion as to how the branch came to be across Mr Bablis's driveway.
Having approached the offender and his daughter with the branch, and making an accusatory statement to Mr Glynn, Mr Bablis threw the branch to the ground and the offender then clenched his right fist and punched Mr Bablis to the face. As a result the victim, Mr Bablis, covered his face and hunched over.
There were no witnesses to the initial phase other than the offender and his daughter, Cassandra Glynn, and of course Mr Bablis, now deceased. I accept that their evidence in relation to what occurred must have been implicitly rejected by the jury as both claimed that the offender did not punch the victim at any time. The victim's evidence was given by way of the statements that he had made to police in the past pursuant to s 65 of the Evidence Act 1995.
As to evidence of injuries to him, the punch to the face was confirmed by observation of the left and right eyes of Mr Bablis, by Constable Feeney when she attended shortly after the altercation. There was further evidence from Constable Rutzou, making similar observations to Constable Feeney.
The witness Mr Giuseppe Colubriale was an eyewitness who had come to the aid of Mr Bablis and observed the later stages of the altercation, but also gave evidence that he saw swelling and the early stages of bruising in the victim's left eye immediately following the altercation.
The victim was examined by Dr Low approximately three hours after the assault, and he found bruising to the left eye, contusions to the nose, and later a nasal bone fracture. His opinion, which was unchallenged, was that the injuries observed were consistent with being punched in the left eye.
Dr Koumoulos also observed a fractured nose and a disrupted left intraocular lens when he examined Mr Bablis two days after the altercation.
An expert in ophthalmology, Professor Coroneo, examined the victim nine days after the altercation and he found that the victim was suffering from a dislocated left intraocular lens which was most likely a consequence of a blow to the left eye consistent with the history given to him by Mr Bablis.
I find on the basis of that material beyond reasonable doubt that the offender commenced the altercation as described by Mr Bablis by punching him to the face repeatedly. I also find that one of those punches to the left eye was the cause of the dislocated left intraocular lens which later required surgery, and was of course the subject of the injuries said to constitute the grievous bodily harm relied on by the Crown.
In addition of course, I find beyond reasonable doubt that the fracture of the victim's nose was also caused by an act of the offender in punching Mr Bablis in the face.
Following the initial phase of the assault Mr Bablis covered his face and hunched over forwards. Before the court was his evidence that he felt blows to the top of his head and to his body.
Mr Colubriale had been a passenger in a motor vehicle being driven by his daughter, who he was giving a driving lesson to. His evidence was that their vehicle came to a stop because of Mr Bablis's car protruding into the street from his driveway.
His attention was drawn by his daughter, Ms Romina Colubriale, to the altercation that had already commenced. His first observation was of the accused hitting the victim over the head with a branch at least twice. The victim was then crouched over with his hands covering his face as this was occurring. The accused was holding the branch with both hands. Mr Colubriale then observed the accused punch the victim to his body repeatedly with both fists clenched as the victim was retreating backwards.
Mr Colubriale then got out of the vehicle and stood between the two men. His evidence was that the offender again picked up the branch and attempted to advance on him and the victim, but the offender was restrained by the offender's wife and daughter who were both then present.
Mr Colubriale gave evidence that during the course of the assault he had heard the offender utter phrases directed at the victim such as, "fucking cunt", "fucking dago" and "fucking wog".
Following the altercation, Mr Colubriale assisted the victim to return to the victim's address and the police were notified.
The evidence of Ms Romina Colubriale substantially replicated that of her father. She had also observed the offender using the branch to hit the victim over his head and then proceeding to punch the victim several times to his body.
That Mr Bablis was struck over the head is in my view corroborated by the photos of him taken at the scene shortly after the altercation. They show a significant gash to the top of his head and another to the left side of his nose and blood.
I find beyond reasonable doubt that following the offender having punched Mr Bablis to the face, the victim covered his face and crouched forward. The offender then utilised the branch to hit the victim to his head at least twice while holding the branch with both hands, and then proceeded to punch the victim to the body several times as the victim attempted to retreat.
The violence was only stopped by the intervention of Mr Colubriale standing between them, although the offender then endeavoured to resume the violence by picking up the branch and advancing on both Mr Colubriale and the victim, Mr Bablis.
As to the injury suffered to the left intraocular lens, Professor Coroneo's evidence was that prior to the assault, the functioning of the victim's left eye had been the same as his right eye, but as a result of the assault the sight in the left eye was 6/24 compared to 6/6 in the right eye.
Although not explicitly stated in his report which was before the Court as Exhibit 9, it appears that the left eye had approximately 25% of the visual capacity of the right eye post-assault.
It was determined that surgical intervention was required and that was supplied by Professor Coroneo. In his report dated four months after the event he opined that recovery would take some months and that it would require long term treatment post-surgery.
I accept that the location of the injury the subject of the charge of grievous bodily harm which required surgery and a protracted period of recovery allows the injury to be regarded as being below the putative midrange of such injuries but not at the bottom of the range of injuries comprising grievous bodily harm.
Whatever caused the offender to assault Mr Bablis, it was an unjustified assault which resulted in a significant injury to the victim by way of the dislocated left intraocular lens as well as of course the other injuries that are referred to, that is the fractured nasal bone and the lacerations to the side of his nose and the top of his head.
There was during the course of the assault the use of a weapon, being a branch, or at least part of a branch. In terms of provocation, the only possible provocation that I can find from the evidence is the offender's reaction to what may have been an unjustified assumption by Mr Bablis as to the offender deliberately blocking his driveway with the branch.
The attack itself had a degree of ferocity to it and it was sustained and only ceased because of the intervention of a third party. In those circumstances, I regard the offence as being of a serious nature, at least approaching the midrange of objective seriousness relating to such offences.
An additional aggravating circumstance is that the victim at the time was some 81 years of age. The offender was 53 years of age at the time.
As to subjective matters before the Court, there is the offender's criminal history. I note that it includes one offence of malicious injury for which he received a $200 fine and $279.32 compensation order at the Waverly Local Court in November 1985.
The only other matter is an offence of use carriage service to threaten serious harm occurring on 28 July 2007, in respect of which he was sentenced at the Burwood Local Court on 4 April 2008 to a fine of $1,000 and a recognisance in the sum of $2,000 pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) of two years.
He appealed from that conviction and the sentence and at the Parramatta District Court in March 2009 the conviction was confirmed, as was the s 20(1)(a) recognisance. The $1000 fine was quashed.
Those matters are relevant simply to indicate that the offender does not have a blemish-free record, however the malicious injury could be reasonably referred to as stale, having occurred some 30 years prior to this offending, and now some 40 years in the past.
The use carriage service is substantially more recent, having occurred in 2007, but in my view neither of the offences has any particular relevance to sentence except that they indicate that he did not have a blemish-free record.
With the exception of those matters he can be reasonably referred to as a person of past good character.
In addition to that, there is a New South Wales Department of Corrective Service Convictions, Sentence and Appeals Report which is of no real utility in relation to this matter as the only period in custody relevant to this matter was when he was bail refused during the course of the trial for a period from 6 to 8 November 2019.
There is also a Sentence Assessment Report under the hand of Sule Caylioglu, Community Corrections officer, dated 19 February 2020, and a number of items tendered on the offender's behalf, being Exhibit G1. A report from I-Med Radiology Network, dated 31 January 2020, which refers to a scan indicating the offender has mild colpocephaly with prominence of the occipital horns. The conclusion reached by David Rallen, the writer of the report, is as follows:
"White matter findings typical for chronic microvascular ischemic change and more than would be expected for age. Supratentorial hemispheric volume loss with temporal and frontal lobes appearing slightly more involved. Neurologist review would be advised".
In addition there is a report from Dr John Roberts, psychiatrist, dated 12 February 2020, two letters addressed "To Whom It May Concern" from Ms Sue Boursiani, psychologist, undated; a number of references from Captain Lester Peterson, undated but clearly prepared for the purpose of this matter; Mr Jim Rammos, undated but again clearly aware of this matter, Mr Eric Patatoukos, dated 20 December 2019, Mr Isidoro Pennisi, dated January 2020, and a further copy of the same reference in slightly different format from Mr Pennisi, dated 8 March 2020. There are some differences between the two references from Mr Pennisi, but they are not of any real significance.
There is a further reference from a Mr Johnny Sainsbury dated 6 April 2020 and a Mr Joseph Rami, again dated 6 April 2020. The date provided on each of those references is in the same handwriting; however it is obvious that each of them was aware of the purpose of the reference being written.
The only further material provided to the Court on behalf of the offender were the written submissions of Mr Doyle, barrister, who appeared as indicated shortly before the conclusion of the defence case and up until the conclusion of the sentence proceedings.
His non-presence here today has been referred to by Mr Glynn prior to my delivering these reasons. I note that we received yesterday an email indicating from Mr Doyle that his instructions had in fact been withdrawn. The reason why Mr Doyle is not here is irrelevant to these proceedings, but I note in respect of the trial that the Court was grateful for the fact that Mr Doyle was able to come into the matter towards the conclusion, particularly in the circumstances where he was able to apply himself professionally and deal with all of the relevant issues, and appropriately address the jury in relation to the material before the court without any significant delay in getting on top of the matter. I have no doubt that Mr Glynn was significantly assisted in relation to the matter by the then presence of Mr Doyle.
It is of regret that he elected to withdraw the instructions from his original counsel and subsequently withdraw instructions from his solicitor, although I note that there was some evidence during the course of the trial that he had in fact, at least over the weekend, had ongoing assistance from Mr Livers who apparently attended at his home to give him some advice in relation to the matter.
In relation to the references that have been provided in respect of the offender I accept that each of the referees has given a genuine opinion in relation to their opinion of the offender and each continues to indicate their support for him and surprise at the nature of the offending.
Some of the referees have known him for a considerable period of time; 45 years, 50 years, but like most referees they do not live in his pocket and they no doubt have contact with him on an ongoing basis at various social events, at his or their homes, or the homes of others.
The Court has had the opportunity to observe the offender during the course of the trial and form its own view as to his character. I will return to that later but I simply note at least in respect of the reference of Captain Lester Peterson, associated with Qantas, who has known the offender for 50 years and regards him highly that he states, "in all this time I have seen Robert give people the odd verbal spray, push people away to protect his personal space, but I have never seen him strike out at anyone".
In a subsequently provided reference he indicated that in using the expression "push people away to protect his personal space" he did not mean it to be taken literally, that is, as some physical action. I have significant difficulty with how it can be interpreted in any other way, but it is in any event not a significant matter in relation to sentencing Mr Glynn.
The two reports, or letters, from Ms Boursiani indicate that the offender has sought psychological assistance at least initially in November 2017 and subsequently on 9 November 2019, which was of course during the course of the trial. He is said at that time to have been found to have a worsening mood with depression, anxiety and stress, all in the extremely severe range and presenting with post-traumatic stress symptomology in the severe clinical range. He is said to have then commenced treatment, attending regularly from that date. She states that:
"Mr Glynn presents as an earnest man who has reflected considerably on his actions that contributed to the incident. The incident and subsequent emotional distress relating to the case over the last few years has had a detrimental effect on his wellbeing".
She notes that he requires collaborative psychological and psychiatric treatment on an ongoing basis.
In her subsequent letter which was provided for the benefit of the Court on 14 April when the sentence was listed, she opines:
"The longstanding nature of the matter before the Court has attributed (sic) Mr Glynn's worsening of mood and wellbeing. The process has had a notable detrimental effect on his physical and mental health. Over the last five years Mr Glynn has appeared in Court 35 times and the matter was vacated on three occasions. His lack of adequate legal representation and uncertainty surrounding his future has contributed to a persistent state of heightened arousal, distress and suicidality which has necessitated safety planning. Further, his poor experience during incarceration on two occasions and the outcome of the trial have accumulatively resulted in Mr Glynn's physical degradation"
I note the only periods of incarceration appear to be the three days when he was refused bail because of his conduct during the course of the trial, and according to the Corrective Services report, a single day in 2016, being 27 February 2016.
I note that as to the three days during the course of the trial, when he was in custody he was detained at the Surry Hills Police Station or alternatively at court while attending court. That was of course entirely as a result of his own conduct which caused his bail to be revoked.
As to the delay of five years, a substantial portion of the delay was caused entirely by Mr Glynn's difficulties in relation to being represented and obtaining appropriate legal representation. I have already referred to the basis on which the trials were vacated on three past occasions.
The report of the psychiatrist, Dr Roberts indicates that as a child the offender denied any serious psychological illnesses. He denied any childhood nervousness, tension or anxiety, and he described his family in highly positive terms describing his upbringing as "beautiful".
He left school after obtaining the Higher School Certificate and indicated to the psychiatrist that he had loved school and having engaged in cricket, football and swimming. He apparently worked a milk run for a period of 35 years before commencing a business selling books to schools for a further 20 years.
There must be some error in relation to the years, because other information before the Court indicates that since committing this offence he has not really been working in the field of selling books to schools. But the combination of the milk run and 20 years would be 55 years, and he is now only 58 years of age. Perhaps there was overlapping between the milk run and the commencement of the book business. That is not a particularly important point.
He is married and he has two daughters. One of his daughters, as I understand it from material before the Court during the course of the trial, is a solicitor.
He informed Dr Roberts, psychiatrist, that he was "shitty with the world" and asserted that he had never done anything wrong. He inconsistently asserted that his eyes were normal and that eye pathology associated with diabetes had not been detected. The psychiatrist noted that appeared to be contradictory to previous statements he made to the same person which is otherwise referred to in the report, that he undergoes routine eye examinations and that he was suffering from renal disease with one kidney not working well and suffering from eye damage from secondary diabetes, having been diagnosed with Type 2 diabetes approximately three years ago. Also during the course of the interview he made reference to "lies, of people being evil and of wanting to put him in gaol" and accepted that he "had a tendency to be snappy, swear, of him disliking people; that he only had a small circle of people whom he liked.".
The psychiatrist opined:
"The possibility of this being paranoid misinterpretation of events arising in the context of organic brain damage i.e. physical damage to the brain, arising as a consequence of his poorly controlled diabetes and smoking, would be a matter for consideration".
He otherwise opines that the offender has extremely poorly exercised control of his diabetes. He provides information in respect of colpocephaly to a mild degree, being a congenital abnormality of the brain and says that it is consistent with the presence of diabetes-induced vascular disease resulting in loss of brain substance.
He further opined that the MRI findings that I have previously referred to were consistent with the presence of what used to be called an organic brain syndrome, namely a physical condition arising on reasonable medical psychiatric grounds from his neglect and diabetes and further compromised by his heavy smoking.
"On reasonable psychiatric grounds it would be the case that his demonstrable organic brain syndrome, aka neurocognitive disorder, is the substantial reason for his inappropriate behaviour".
He also finds that the behaviour, on the basis of the references which were provided to him, indicates that his conduct in relation to committing the offence is, on the assumption of inconsistency with his past behaviour - that the offending conduct was abhorrent, and would be consistent with the development of an organic cerebral condition leading to inappropriate behaviour characterised by poor impulse control and poor judgment.
Although he was being asked to in fact provide a report for the purpose of s 32 of the Mental Health (Forensic Provisions) Act 1990, he stated:
"In my opinion, Mr Robert Glynn, for an indeterminate period prior to his attendance upon my surgery, and on reasonable medical psychiatric grounds for a number of years, is suffering from a mental condition for which treatment is available in the mental health facility. The conditions under consideration comprise:
1. A neurocognitive disorder not otherwise specified;
2. Major depression;
3. Poor impulse control associated with an organic brain syndrome/neurocognitive disorder resulting in inappropriate behaviour characterised by poor impulse control and defective judgment.
In the context of Mr Glynn suffering from a mental illness I note that he suffers from a serious disorder of thought form and a severe disturbance of mood resulting in repeated irrational behaviour not only in relation in the matter for which he is appearing before the Court but also in relation to the account given in paragraph 15 of the statement of facts in which reference is made to the accused being entered into custody at the Campsie Police Station, of police describing his demeanour as aggressive, of him suggesting that he and the custody manager have a fight, and that he - namely Mr Glynn - would get satisfaction out of hitting the custody manager a couple of times".
His comment in respect of that behaviour was that it was hardly an example of logical and appropriate behaviour under the circumstances under consideration.
It is of course not an issue before me in relation to the trial, but I note that that behaviour is entirely consistent with the offender's behaviour during the course of the trial, and indeed on the voir dire. One of the matters that he wished to show the court was a video of the arrest process. He eventually accepted that the recording made by his wife when the police endeavoured to get him to go to the police station was not a recording that showed him in a good light. That was of course shortly prior to what is referred to in the psychiatric report regarding his attendance at the police station.
There is nothing in the report which indicates that at the time of the offending the offender was suffering in the manner suggested by the psychiatrist to be found in 2020.
Although he states:
"Having regard to the fact that Mr Robert Glynn has throughout his life showed a capacity to perform normally, I would consider the substantial cause of the inappropriate behaviour as relating to the poorly controlled diabetes and the result of vascular disease previously described".
He provided a subsequent report of 13 February 2020, clarifying exactly what it was that he was suggesting in the first report and he stated:
"In my opinion the above suffers from brain damage due to physical ill health, namely severe uncontrolled diabetes, the brain damage having been demonstrated on the MRI. I consider that his inappropriate behaviour is the substantial result of that brain damage".
It is relevant to refer to the offender's conduct during the course of the trial both while represented and while representing himself. Before the jury was empanelled he aggressively declined to sit in the dock when requested to do so. From his statements to the Court at the time of his resistance to the direction, it appeared that he thought himself too important to sit in the dock, being the place where accused persons in the ordinary event always sit.
His conduct during the course of the trial can be described on various occasions as having been belligerent, aggressive, obstructive, offensive and highly manipulative. There were a number of outbursts during the course of the trial which in my view in general were designed by him to invoke the jury's sympathy for his plight as an unrepresented accused.
One instance of his outburst was on a number of occasions to loudly proclaim when irrelevant to what was happening that this was his fourth trial, a complete misstatement of fact when it was in fact his first trial, none of the first three having actually commenced. Even when corrected, he continued to make irrelevant references to his "fourth trial".
In giving evidence when referring to what he said was said to him by Mr Bablis, he adopted an entirely artificial fake accent, which in my view was an attempt to demean the victim, and only desisted when directed to do so, and which in my view was another example of an innate streak of racism which was also evident from the statements he made to Mr Bablis on the day of the incident.
While in custody during the course of the trial, he appeared one day, as he had in the past, wearing a suit coat or jacket, but underneath which he had a prison green garment. He had placed his paperwork not on the bar table but on the ledge of the dock and during the course of the trial he rose from his seat at the bar table, where he had been permitted to sit because he was unrepresented, walked to do the dock, and with his back to the jury, who were then present, removed his coat in order to more fully display the green prison‑type garment he was wearing under it with a white logo on it the back, again in my view a deliberate attempt to gain sympathy from the jury. He also on occasion referred to such things as "not having eaten for a week".
My copy of the transcript is littered with tabs where I had indicated for the purposes of removing material from the transcript if it was asked for by the jury - statements made by him which were irrelevant, designed to demean the victim or attempt to invoke sympathy from the jury. I doubt whether any of his referees, if they had been present during the course of the trial, would have found it possible to provide the references of the glowing nature that they have provided.
Whatever the offender's past conduct, I note the offence occurred when he was 53 years of age, and he had only the two minor matters which I have referred to which are not of significant consequence, in his history. He is, as I have said, otherwise a person of longstanding good character, well-regarded by others. It is difficult to understand his conduct during the course of the trial unless there is perhaps some validity in the psychiatrist's opinion.
The Sentence Assessment Report indicates under "Attitudes" that:
"Although Mr Glynn expressed regret for his actions, he minimised his behaviour stating he endured suffering over a long period of time prior to the event due to the victim's behaviour...Mr Glynn justified his actions claiming he was protecting his daughter...Mr Glynn reported an ongoing feud between him and the victim resulting in a tumultuous environment to reside in...Mr Glynn reported guilt and remorse towards the victim, although was not convinced his injuries were in direct consequence of the accused's actions".
I note that his defence during the course of the trial was that he could not have inflicted the injuries because he did not assault the victim in the way alleged in the evidence.
This was a defended trial. There is, in the circumstances of it being a defended trial, and the statements as referred to in Sentencing Assessment Report, no evidence of remorse or contrition. The offender continues to claim in effect that he did not commit the offence.
He is however assessed by the Community Corrections officer as being a medium to low risk of reoffending, an assessment that I accept particularly in the view of his past lack of any particularly relevant convictions and his age. I take into account of course the passage of five years since committing this offence without any further evidence of misconduct.
In determining sentence, the Court must take into account the purposes of sentencing as provided in s 3A of the Crimes (Sentencing Procedure) Act. It must take into account where appropriate the need for specific deterrence and general deterrence.
In my view, given the offender's complete lack of remorse or contrition, specific deterrence remains an important factor to take into account even in the circumstances where I accept that there is a low to medium risk of reoffending.
General deterrence is also an important factor to take into account. This was an unprovoked assault on an individual who was over 80 years of age. Although the evidence before the Court in relation to Mr Bablis was only by way of photographs relevant to proving the resultant injuries, video footage of him shown during the course of the voir dire, being apparently video footage of Mr Bablis walking or drinking coffee in the local area, presumably taken by someone associated with the offender, subsequent to the incident, demonstrated that Mr Bablis appeared to be - although it is difficult to judge - someone who would be shorter than the offender with the resultant body shape of a not particularly fit 80 year old, who when moving, that is walking, could be more described as shuffling rather than vigorously walking. He was in the later years of his life expectancy, and indeed died prior to the eventual commencement of the trial.
There is no evidence before the Court in effect of any significant sequelae other than the need for ophthalmic surgery, or of any particular pain or suffering, and I take that into account.
While I have referred to the difficulties experienced by the Court occasioned by the offender's conduct in court, and indeed at one stage outside the court after the day's hearing, I am sentencing him only in respect of the offence that is before me, which is recklessly causing grievous bodily harm. I am not sentencing him in any way in respect of the matters that I have referred to in terms of his conduct in court, and I have in determining sentence put those matters out of my mind.
Of course always relevant is the fact of the maximum penalty that is provided for such an offence, which in this case is 10 years, and that a standard non-parole period of four years is also provided, which is more relevant where a matter has been defended rather than dealt with by way of a plea of guilty. Of course as has been noted on many occasions a standard non-parole period is a guideline, not a tramline, and I take it into account only as a guideline.
Despite the fact that this was a defended matter I will provide a sentence where the head sentence is significantly less than the standard non-parole period. Because of the lack of any particularly relevant past criminal history to date, and because of my feeling based on his conduct in the trial that there may well be something of merit in the uncontested findings of Dr John Roberts, I will also take into account the material contained in the report of Ms Boursiani.
Having given careful consideration to all of those matters I have determined what I regard as an appropriate sentence and, considering the length of sentence I intend to impose, I have considered whether the sentence can be served other than by a period of actual imprisonment. I have concluded that only a period of actual imprisonment is appropriate in the circumstances.
Mr Glynn, would you please stand.
You are convicted in relation to the offence of reckless wounding of Mr Bablis. You are sentenced to a term of imprisonment of two years and six months.
I will find special circumstances in relation to this being your first time in custody, and significantly reduce the statutory relationship of the non‑parole relation to the balance of term. The non-parole period will be one year and three months.
I have backdated the sentence to take account of the four days you have previously spent in custody, being the day of your arrest and three days during the course of the trial.
Accordingly, the sentence will commence on 12 April 2020 and you will be first eligible for parole on 11 July 2021. The balance of term is one year, three months. The total term of two years, six months will expire on 11 October 2022.
Mr Crown, is there anything of significance?
STEWARD: No, your Honour.
OFFENDER: Your Honour, might I just make a submission now.
HIS HONOUR: No, your submissions are finished, I've just delivered sentence, I'm about to adjourn--
OFFENDER: It's just a notice of intention to apply for leave to appeal and if we can put that beforehand and come back--
HIS HONOUR: You can get legal advice about that. I don't grant leave to appeal, that's a matter for the Court of Criminal Appeal.
OFFENDER: If we make a submission in an hour for leave to appeal.
HIS HONOUR: No, Mr Glynn, I don't propose to hear anything further in relation to this matter. You elected to be here unrepresented today and you can obtain advice in due course.
OFFENDER: Thank you, your Honour.
HIS HONOUR: Mr Crown, there is a matter on s 166 certificate which was a back-up offence.
CROWN PROSECUTOR: It's actually been withdrawn, your Honour.
HIS HONOUR: Yes, I note that that matter has been withdrawn and dismissed.
CROWN PROSECUTOR: Thank you, your Honour. Apologise for the oversight.
[2]
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.
Decision last updated: 15 March 2022