R v Gallacher - [2024] NSWDC 207

District Court

New South Wales

Medium Neutral Citation: R v Gallacher [2024] NSWDC 207
Hearing dates: 24 April 2024
Date of orders: 24 April 2024
Decision date: 24 April 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Imprisonment for 1 year 9 months to be served in the community subject to Intensive Correction Order

Catchwords:
CRIME — Violent offences — Robbery
SENTENCING — Aggravating factors — Conditional liberty — In company
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty — Surrender — Mercy
SENTENCING — Penalties — Intensive Correction Orders
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Form 1 offences — Moral culpability — Objective seriousness — Traumatic impact of domestic violence — Hardship to family — Imprisonment of mothers — Whether an ICO is appropriate
SENTENCING — Subjective considerations on sentence — Drug addictions — Mental health — Victim of domestic violence

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
CMB v The Attorney General for the State of NSW [2015] HCA 9; 256 CLR 346
Legge v Regina [2007] NSWCCA 244
Nasrallah v R [2021] NSWCCA 207
Panetta v R [2016] NSWCAA 85
R v Edwards (1996) 90 A Crim R 510
R v Ellis (1986) 6 NSWLR 603
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
R v Zerafa [2012] NSWSC 978
Ryan v The Queen (2001) 206 CLR 267
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Texts Cited:
Grace Crivellaro, “Woman feared she would be murdered”, Illawarra Mercury (Illawarra), 27 October 2023

Category: Sentence
Parties: Anne Marie Gallacher (the offender)
Public Prosecutions (NSW) (Crown)
Representation: Solicitors:
M Kwan solicitor for Legal Aid (NSW) (for the offender)
C Buckthought solicitor for Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2022/393251

JUDGMENT – EX tempore revised

Agreed Facts

In the early hours of 28 December 2022 there was an armed robbery of the BP Service Station in Warrawong. Two women entered the station. They were wearing black clothing. Their faces were covered, only their eyes were visible. One produced a boxcutter and put it on the counter.
She said to the attendant, “Give me all your money in the till yeah”. The attendant refused. She said, “Open the till. Give me the money … or my friend with the gun's going to come in.”
The attendant closed the till and walked to the office area. He and his colleague closed the office door and locked themselves in. The attendant later told police he “felt scared and worried and afraid”. His colleague was “really scared”.
The first woman instructed the other to go to the automatic door to prevent it shutting. She then gave the other woman her handbag and the boxcutter. Demands were made of staff to open the till, but they stayed in the…

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 Gallacher

Details

AGLC: R v Gallacher [2024] NSWDC 207
Case: [2024] NSWDC 207
Decision Date: 24 April 2024

CaseChat Overview and Summary

The appellant, Gallacher, was convicted of robbery and the matter was before the court for sentencing. Gallacher had pleaded guilty to the offence and was subject to an appeal against sentence. The court was required to decide the appropriate sentence for the offence, taking into account the relevant aggravating and mitigating factors.

The court noted that the offence was of an aggravating nature, committed in company and during a period of conditional liberty. However, the court also considered the mitigating factors, including Gallacher's plea of guilty, surrender to authorities, and mercy. The court further considered the guidelines for sentencing, including the role of the guidelines and the relevance of an intensive correction order. The court also considered the objective seriousness of the offence, the traumatic impact of domestic violence, the hardship to the family, and the imprisonment of mothers. The court further considered the subjective considerations, including Gallacher's drug addictions, mental health, and victimisation by domestic violence.

The court held that an intensive correction order was appropriate in the circumstances of the case. The court noted that the order would provide an opportunity for Gallacher to address his drug addictions and mental health issues, and would also provide an opportunity for general deterrence. The court further held that the order would provide an opportunity for Gallacher to make amends to the victim and to his family. The court sentenced Gallacher to imprisonment for 1 year 9 months to be served in the community subject to an Intensive Correction Order.

Orders

Orders of the court

Imprisonment for 1 year 9 months to be served in the community subject to Intensive Correction Order

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Gallacher [2024] NSWDC 207
Hearing dates:	24 April 2024
Date of orders:	24 April 2024
Decision date:	24 April 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Imprisonment for 1 year 9 months to be served in the community subject to Intensive Correction Order
Catchwords:	CRIME — Violent offences — Robbery SENTENCING — Aggravating factors — Conditional liberty — In company SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty — Surrender — Mercy SENTENCING — Penalties — Intensive Correction Orders SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Form 1 offences — Moral culpability — Objective seriousness — Traumatic impact of domestic violence — Hardship to family — Imprisonment of mothers — Whether an ICO is appropriate SENTENCING — Subjective considerations on sentence — Drug addictions — Mental health — Victim of domestic violence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Regulation 2014 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	CMB v The Attorney General for the State of NSW [2015] HCA 9; 256 CLR 346 Legge v Regina [2007] NSWCCA 244 Nasrallah v R [2021] NSWCCA 207 Panetta v R [2016] NSWCAA 85 R v Edwards (1996) 90 A Crim R 510 R v Ellis (1986) 6 NSWLR 603 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 R v Zerafa [2012] NSWSC 978 Ryan v The Queen (2001) 206 CLR 267 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
Texts Cited:	Grace Crivellaro, “Woman feared she would be murdered”, Illawarra Mercury (Illawarra), 27 October 2023
Category:	Sentence
Parties:	Anne Marie Gallacher (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Solicitors: M Kwan solicitor for Legal Aid (NSW) (for the offender) C Buckthought solicitor for Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2022/393251