San Gabriel v The Queen - [2002] FCAFC 169

FEDERAL COURT OF AUSTRALIA
San Gabriel v The Queen [2002] FCAFC 169
SENTENCING – disparity – whether sense of grievance on part of appellant objectively justifiable – co-offender with longer record committed offence and further offence whilst on parole - whether failure to allow for longer record, further offence and remaining portion of previous sentence when sentencing co-offender justified appellant’s sense of grievance.
Firearms Act 1996 (ACT), s 16(1)
Parole Act 1976 (ACT), s 22
Rehabilitation of Offenders (Interim) Act 2001 (ACT), s 31(2), s 32, s 61
Crimes Act 1900 (ACT), s 342
Postiglione v The Queen (1997) 189 CLR 295, referred
Steer v The Queen (2000) 171 ALR 463, cited
Omar v The Queen (1991) 55 A Crim R 373, cited
R v Tait (1979) 46 FLR 386, referred
Dinsdale v The Queen (2000) 202 CLR 321, referred
Lowe v The Queen (1984) 154 CLR 606, referred
CHRISTIAN SAN GABRIEL v THE QUEEN
A41 OF 2001
MILES, RYAN and HIGGINS JJ
CANBERRA
5 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
A41 OF 2001
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

CHRISTIAN SAN GABRIEL
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

MILES, RYAN and HIGGINS JJ

DATE OF ORDER:
DATE OF JUDGMENT:
22 FEBRUARY 2002
5 JUNE 2002

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.The appeal be dismissed.

2.The sentence and orders of the Supreme Court be confirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
A41 OF 2001

BETWEEN:

CHRISTIAN SAN GABRIEL
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

MILES, RYAN and HIGGINS JJ

DATE OF ORDER:
DATE OF JUDGMENT:

22 FEBRUARY 2002

5 JUNE 2002

PLACE:

CANBERRA

REASONS FOR JUDGMENT
MILES J:

This appeal was dismissed on 22 February 2002 with reasons to be given later. I am not of the view that it should have been dismissed. These are my reasons.
On 27 February 2001 Christian San Gabriel pleaded guilty in the ACT Magistrates Court to a charge of aggravated burglary. He was committed to the Supreme Court of the Australian Capital Territory for sentence and continued his plea of guilty in that Court. On 8 June 2001 he was sentenced to eight years imprisonment, with a non-parole period of four and a half years, to date from 18 January 2001. He appealed against the severity of the sentence on the single ground of disparity with the sentence imposed on a co-offender.
The offence took place on 16 January 2001 at a house at Palmerston. The appellant and the co-offender, Van Long Pham, had previously been to Sydney where a gun had been obtained. On the day of the offence they purchased novelty masks, a knife and some rope from a store at Belconnen. They caught a taxi to the house and gained entry by slashing a fly…

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 San Gabriel v The Queen

Details

AGLC: San Gabriel v The Queen [2002] FCAFC 169
Case: [2002] FCAFC 169
Decision Date: 22 FEBRUARY 2002 5 JUNE 2002

CaseChat Overview and Summary

The decision in San Gabriel v The Queen involved the appellant, Pham, appealing against the sentence imposed by the sentencing judge. Pham was convicted of aggravated burglary and an unlicensed pistol charge, and his parole was revoked upon conviction. The appeal focused on whether the sentence imposed was appropriate, particularly in light of the Parole Act, which required the non-parole period to be set in a way that Pham would not be released on parole earlier than if the new sentence had not been imposed. The court found that Pham's non-parole period was set correctly, and that there was no error in the overall sentence imposed.

The key legal issues were whether the sentencing judge had erred in fixing Pham's sentence, particularly in light of the need to avoid a “crushing” sentence on a young offender and the need to maintain parity with co-offenders. The court found that the sentencing judge had not erred in imposing the sentence, as Pham's parole was revoked upon conviction, and the non-parole period was set correctly. The court also found that the need to avoid a “crushing” sentence on Pham supported the level of punishment imposed upon him, and that Pham's culpability was not significantly increased by the unlicensed pistol charge.

The court concluded that the appeal should be dismissed and that the sentence and orders of the Supreme Court should be confirmed. The court found that the sentencing judge had not erred in imposing the sentence, and that the need to avoid a “crushing” sentence on Pham supported the level of punishment imposed upon him. The court also found that Pham's culpability was not significantly increased by the unlicensed pistol charge, and that the non-parole period was set correctly. Therefore, the appeal was dismissed, and the sentence and orders of the Supreme Court were confirmed.

Orders

Orders of the court

1. The appeal be dismissed.

2. The sentence and orders of the Supreme Court be confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

These considerations revealed an error and warranted, in his Honour’s view, a reduction of the total head sentence imposed on the appellant of one year and of the non-parole period of six months.Conclusions Regrettably, we do not agree that the sentence imposed by the learned sentencing judge should be interfered with even if, as Miles J concludes, Pham had been treated relatively more leniently than might have been justified. In our view, the need to avoid a “crushing” sentence on Pham can be seen as supporting the level of punishment imposed upon him. Thus we do not consider that Crispin J erred in not imposing a cumulative sentence in respect of the unlicensed pistol charge. It was a relatively peripheral matter indicating general criminality but not really adding to Pham’s overall culpability. Of more significance is that Pham was on parole when convicted. On conviction, Pham’s parole was revoked – see s 61 of the Rehabilitation of Offenders (Interim) Act 2001 (ACT) (Rehabilitation of Offenders Act). Thus Pham commenced serving, when sentenced for the aggravated burglary, a term of imprisonment expiring (it is assumed) on 8 June 2004 (see s 32(2) Rehabilitation of Offenders Act)). Crispin J was obliged to assume that the offender was being sentenced to a total of 16 years imprisonment. Section 31 (ibid) required that “a non-parole period” be set. The only restriction on the length of that non-parole period is imposed by s 32(3) (ibid):“The nonparole period set when the new sentence is imposed must not make the person eligible to be released on parole earlier than if the new sentence had not been imposed.” The new sentence imposed a non-parole period expiring on 18 January 2007. By contrast, the appellant’s non-parole period set by Crispin J will expire on 18 July 2005. It is not apparent to us that Crispin J failed to note and take account of the need to re-set the non-parole period fixed for Pham so that he gained a windfall benefit. Indeed his Honour said, in fixing Pham’s sentence (AB 156):“… having regard to the terms of the Parole Act [now Rehabilitation of Offenders Act], I am required to fix that [ie “a non-parole period”] … Accordingly, I determine that your non-parole period in relation to all sentences will expire on 18 January 2007.” However, the true issue on this appeal is whether there was error in the fixing the appellant’s sentence. There may be, for example, an error fixing a co-offender’s sentence at too high a level so that parity principles identify a correlative error in another co-offender’s sentence. It is more difficult, in our view, to justify interference where parity has been afforded but, despite the fact that the sentence of one co-offender is not apparently too great, it is asserted that the sentence of the more culpable or “less-excusable” offender is set too low. Particularly, when the failure to increase the more culpable offender’s sentence can be seen to be based on a desire to avoid a “crushing” sentence on a young offender.

Ratio Decidendi

Legal Principle Established

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BETWEEN:	CHRISTIAN SAN GABRIEL APPELLANT
AND:	THE QUEEN RESPONDENT
JUDGES:	MILES, RYAN and HIGGINS JJ
DATE OF ORDER: DATE OF JUDGMENT:	22 FEBRUARY 2002 5 JUNE 2002
WHERE MADE:	CANBERRA