R v Galgey - [2010] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GALGEY
[2010] SASC 134
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Kelly)
7 May 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence - appellant sentenced for possessing methylamphetamine for sale - offence was in breach of a suspended sentence bond and occurred during a period of parole - judge took into account several periods spent in custody for matters which would not otherwise have been reflected in a sentence and gave full credit for time spent on home detention bail - whether judge erred in failing to take into account two further periods in custody in relation to matters unrelated to the instant offence.
Held: judge arguably intended to give credit for the first period under consideration, though not the second. However, there is no right to have time on remand for separate offences credited against a sentence - the deduction for the earlier periods was greater than it should have been - sentence imposed was lenient in the circumstances - appeal dismissed.
Observations as to desirability of backdating a sentence rather than deducting from sentence time spent on remand.
Criminal Law (Sentencing) Act 1988 (SA), s 30, referred to.
R v Arts and Briggs [1998] 2 VR 261; R v Pahuja (No 2) (1989) 50 SASR 551; R v Wilson [2010] SASC 89; R v Malesevic (1999) 204 LSJS 32; R v Colson (1999) 73 SASR 407; R v P, NJ (No 4) (2008) 183 A Crim R 461; R v Al-Zuain (2009) 103 SASR 567; R v Hughey (2007) 252 LSJS 316; PNJ v The Queen (2009) 83 ALJR 384, considered.

R v GALGEY
[2010] SASC 134
Court of Criminal Appeal: Vanstone, White and Kelly JJ

VANSTONE J: The appellant was convicted in the District Court by verdict of a jury for possessing methylamphetamine for sale, the offence taking place on 4 January 2007. The offending was in breach of a bond associated with a six month suspended sentence, for offences committed in 2004. The offence was also committed during a period on parole, the unexpired balance of which was then four months and 13 days. The judge ordered that the suspended sentence be carried into effect and served cumulatively upon the unexpired balance of parole. He imposed a sentence of three years and eight months for the drug offence, to follow the other periods, resulting in a total head sentence of four and a half years and 13 days. The judge set a non-parole period of two years. The sentence was ordered to run from the date of its imposition, being 18 December 2009.
The sole ground of appeal, as amended on the day of the appeal hearing, is that the judge erred…

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 R v Galgey

Details

AGLC: R v Galgey [2010] SASC 134
Case: [2010] SASC 134
Decision Date: 7 May 2010

CaseChat Overview and Summary

The appellant in this case appealed against the sentence imposed by the trial judge for possessing methylamphetamine for the purpose of sale. The offence occurred while the appellant was on parole and in breach of a suspended sentence bond. The trial judge had taken into account several periods the appellant had spent in custody for unrelated matters, and had also given credit for time spent on home detention bail. The appellant's contention was that the judge had failed to take into account two further periods in custody in relation to matters unrelated to the current offence.

The court considered whether the judge had erred in failing to give credit for the two further periods in custody. It was noted that the judge arguably intended to give credit for the first period, but there is no obligation to credit time on remand for separate offences against a sentence. The court also considered that the deduction for the earlier periods was greater than it should have been. However, given that the sentence imposed was lenient in the circumstances, the appeal was dismissed.

The court found that the trial judge had considered the appellant's custodial history in arriving at the sentence. The judge had given credit for periods of custody and home detention bail which were relevant to the current offence. The court held that there was no obligation on the part of the judge to credit time on remand for separate offences against the sentence. The sentence imposed was considered lenient in the circumstances, and the appeal was dismissed.

The final orders of the court were that the appeal against sentence was dismissed. The original sentence imposed by the trial judge was upheld.

Orders