Daniel Galea v The Queen - [2016] VSCA 40

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0197

DANIEL GALEA	Applicant
v
THE QUEEN	Respondent

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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)

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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.

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

(DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE
CRIMINAL PROCEDURE ACT 2009)

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniel Galea v The Queen

Details

AGLC: Daniel Galea v The Queen [2016] VSCA 40
Case: [2016] VSCA 40
Decision Date: 10 March 2016

CaseChat Overview and Summary

Daniel Galea sought leave to appeal against his sentence imposed by the County Court of Victoria. He had pleaded guilty to charges of armed robbery and recklessly causing serious injury. The County Court sentenced Galea to four years and six months' imprisonment for the armed robbery and eight months' imprisonment for the recklessly causing serious injury, to run concurrently. The total effective sentence was four years and nine months' imprisonment, with a non-parole period of three years. Galea sought leave to appeal against the sentence on the grounds that it infringed the principle of parity when compared to the sentence imposed on his co-offender, Victor Farrugia, and that his sentence was manifestly excessive because it did not give adequate effect to the principles in R v Verdins.

The Court found that there was no arguable basis that the principle of parity was infringed. The Court noted that there were significant material differences between Galea and Farrugia which required pronounced disparate treatment. The relativity between the sentences properly reflected the extent of the inequality between the co-offenders, and there was no justifiable objective sense of grievance. The Court also found that there was no justifiable argument that the sentence was manifestly excessive. The sentencing judge had taken into account Galea's intellectual disability and reduced his moral culpability to a degree, while still considering specific and general deterrence as significant aspects of the sentencing calculus. The Court refused Galea's application for leave to appeal against his sentence.

Orders