Daniel Galea v The Queen
[2016] VSCA 40
•10 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0197
| DANIEL GALEA | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGE: | REDLICH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 10 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 40 |
| JUDGMENT APPEALED FROM: | DPP v Galea (Unreported, County Court of Victoria, Judge Mullaly, 18 September 2015) |
---
CRIMINAL LAW – Application for leave to appeal against sentence – Parity – No arguable basis that principle infringed – Obvious significant material differences between the co-offenders which required pronounced disparate treatment – Relativity between sentences properly reflects the extent of the inequality between co-offenders – No justifiable objective sense of grievance – Manifest excess – Application of Verdins principles – Armed robbery, Recklessly causing serious injury – Total effective sentence 4 years 9 months – Non-parole period 3 years – Leave refused.
---
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
(DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE
CRIMINAL PROCEDURE ACT 2009)
---
ON THE PAPERS
REDLICH JA:
The applicant was sentenced to four years and six months’ imprisonment on one charge of armed robbery and eight months’ imprisonment on one charge of recklessly causing injury following a plea of guilty to those charges. He received a total effective sentence of four years and nine months’ imprisonment, with a non-parole period of three years. He seeks leave to appeal against the sentence (which appears from the submission to be a reference to both sentences) on two grounds. Under ground 1, he complains that the sentence imposed on him offends the principle of parity when compared to the sentence imposed on his co-offender, Victor Farrugia (‘Farrugia’). Under ground 2, he submits that his sentence was manifestly excessive because it did not give adequate effect to the principles in R v Verdins.[1]
[1](2007) 16 VR 269 (‘Verdins’).
Subject to one error in the sentencing remarks that was unduly favourable to the applicant and to which I shall refer, the facts are set out in the sentencing remarks and need not be repeated.[2]
[2]DPP v Galea (Unreported, County Court of Victoria, Judge Mullaly, 18 September 2015) (‘Reasons’).
Ground 1: Infringement of the principle of parity
The applicant’s co-offender was sentenced on five charges, three of which arose from the offending the subject of the present application. With respect to those charges, he was charged with armed robbery, attempted armed robbery and common assault, varying in nature to the offences with which the applicant was charged to some extent. On the charge of armed robbery, the co-offender received a sentence of three years and three months’ imprisonment, which constituted the base sentence. The charge of attempted armed robbery relates to the same incident and two of the victims. Twelve months of imprisonment were ordered to be served concurrently with the base sentence. On the charge of assault, in which he punched one of the victims — a different assault to the assault (recklessly causing serious injury) to which the applicant pleaded guilty — the co-offender was sentenced to six months’ imprisonment, two months of which were ordered to be served cumulatively with the base sentence. The total effective sentence imposed on the co-offender was three years and six months’ imprisonment, with a non-parole period of two years.
The applicant submits that the sentence imposed on him infringes the principle of parity when regard is had to the sentence imposed upon the co-offender. He argues that the conduct the subject of the offending on which the co-offender received the total effective sentence of three years and six months’ imprisonment was the same in substance as the applicant. As I have said, that is not correct as the applicant was convicted of a different and more serious assault of recklessly causing serious injury by throwing a dumbbell at the victim.
With respect to the differences the judge found between the co-offender and the applicant, the applicant acknowledges that the co-offender was entitled to a discount for undertaking to give evidence against the applicant. He argues, however, that the judge did not give adequate weight to the impaired mental functioning of the applicant despite the judge’s acceptance that Verdins principles applied. It is submitted that, consequently, the disparity in sentence occasioned by the differences between the applicant and the co-offender was significant enough to give rise to a justifiable grievance.
I note that the applicant’s counsel was not consistent in his submission as to how the sentence of the co-offender should be viewed. On the first day of the plea, he submitted that the applicant should get a sentence in the range of the co-offender’s sentence, ‘perhaps even a bit more’, while on the second day he concluded his submissions by urging a sentence of imprisonment less than that of the co-offender and invited the imposition of a CCO in conjunction with a term of imprisonment.
This is yet another instance of this Court having to address a submission raising an alleged breach of the parity principle when, viewed objectively, there were material and significant differences between the co-offenders which justified their disparate treatment. It is to be remembered that the principle will only be infringed where, all other things being equal, there is disparate treatment or where other things are not equal but the relativity between sentences does not properly reflect the extent of the inequality. Thus, the applicant is obliged to demonstrate that, when all of the obvious differences between the co-offenders are taken into account, the sentences do not reflect the relative inequality between them. Moreover, the applicant must show that the disparity is so manifest that it not only engenders a justifiable sense of grievance in the offender but would give the appearance to an objective observer that justice has not been done. The applicant had no realistic prospect of satisfying these requirements.
The cases of the applicant and his co-offender were very unlike and called for appropriate differentiation between them. The sentencing judge was obliged to distinguish between them for the following accumulation of compelling reasons. The plan to commit an armed robbery on a drug dealer had been concocted by the applicant and another person, who had not been charged. Accordingly, the applicant was to be viewed as the instigator of these offences. When regard is had to his conduct during the robbery, he was properly to be regarded as playing the leading role. He played a more serious role during the armed robbery by throwing the dumbbell and by using an imitation pistol to threaten the victims. The co-offender made full admission to the offending in his record of interview while the applicant made no comment. The applicant, unlike his co-offender, did not plead guilty at the earliest opportunity. He contested the committal and cross examined witnesses. The co-offender undertook to, and did give evidence against, his co-offender. Not only was a substantial discount on the co-offender’s sentence required but it was also to be taken into account that the imprisonment would be more onerous for the co-offender as a police informer.
Further, the applicant, unlike his co-offender had a number of significant prior convictions for violent offences. He had previously been convicted of other offences such as unlawful assault, making threats to kill a person, intentionally causing injury, damaging property, and assault with a weapon. The co-offender, by contrast, had no prior convictions for similar violent offences. The applicant committed the present offences whilst subject to a community corrections order, which order he had received for committing a number of offences including reckless conduct causing serious injury, recklessly causing injury, unlawful assault, criminal damage and contravening a family violence final intervention order. Not surprisingly, the co-offender was found to have better prospects of rehabilitation.
His Honour, in his full and careful reasons, discussed most of these points of differentiation between the co-offenders. It was very obviously within a sound exercise of his discretion to find that, while the applicant was entitled to a discount in his sentence by virtue of the principles in Verdins given his intellectual disability, the distinguishing features which had favoured mitigation of the co-offender’s sentence significantly outweighed the mitigating factor of the applicant’s impaired mental functioning. I shall return to the applicant’s intellectual disability in discussing ground 2.
It cannot reasonably be said that the disparity between the sentences imposed on the applicant and his co-offender was such as to give rise to a justifiable grievance on the part of the applicant. These facts could never sustain an argument that an objective observer would consider that justice has not been done or that the applicant could have a justifiable grievance arising from the disparity in the sentences.
Ground 1 lacks any substance.
Ground 2: Manifest excess
The applicant submits that, by not giving adequate effect to the principles in Verdins, the sentencing judge imposed a manifestly excessive sentence on him. It is argued that the judge’s application of Verdins principles insufficiently moderated the influence of specific and general deterrence as sentencing considerations and inadequately reduced the applicant’s moral culpability.
The applicant’s submissions are marked by a lack of particularity as to the basis upon Verdins principles ought to have been enlivened. On the plea and on appeal, defence counsel sought to rely solely on the applicant’s intellectual impairment to argue that the principles in Verdins ought to be given effect. The applicant does not argue that the judge should have applied the principles in Verdins on the basis of a relevant personality, anxiety or mood disorder.
I can discern no merit in the submission that the judge gave insufficient weight to the applicant’s intellectual functioning. Referring to Muldrock v The Queen[3] and Gerbing v The Queen,[4] the judge found that the applicant’s intellectual disability was a relevant mitigating circumstance. The judge rightly concluded that the applicant’s moral culpability was thereby reduced ‘to a degree’ and that the sentencing considerations of general and specific deterrence were to be suitably moderated whilst remaining significant aspects of the sentencing calculus.[5] The judge also took into account that the applicant’s impairment would make his time in custody more onerous.[6]
[3](2011) 244 CLR 120.
[4][2015] VSCA 209.
[5]Reasons [51]–[53].
[6]Ibid [65].
No complaint is made in the written case that there was any impropriety in the judge finding that the applicant’s propensity to act impulsively gave ‘rise to concerns about protections of the community.’[7] It was also open to the judge to regard denunciation as a significant consideration in the sentencing exercise.
[7]Ibid [28].
The applicant advanced no other particular of manifest excess in the sentence imposed. In my view it is not reasonably arguable that the sentence is manifestly excessive. On the contrary, the sentence is reflective of the moderation required by virtue of his intellectual disability.
I would also refuse leave on this ground.
- - -
0
2
0