Galaxidis v Regina

Crimes Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act Drug Misuse and Trafficking Act

Johnson v The Queen (2004) 78 ALJR 616 Lowe v The Queen (1984) 154 CLR 606 Mill v The Queen (1988) 166 CLR 59 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Hovan [2005] NSWCCA 179 R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Weldon: R v Carberry (2002) 136 A Crim R 55

COUNSEL: P Lowe - Applicant G Rowling - Respondent

SOLICITORS: D Leamey - Applicant S Kavanagh - Solicitor for Public Prosecutions

IN THE supreme COURT OF new south wales court of CRIMINAL APPEAL 2005/2152 CCAP

HODGSON JA JAMES J HOEBEN J

Tuesday 16 May 2006 John GALAXIDIS v REGINA Judgment

2 JAMES J: John Galaxidis applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Phelan on 17 March 2005. The applicant had pleaded guilty to all of the counts in three indictments. These indictments, in the order in which they were first referred to in his Honour's remarks on sentence, were:-

(1) An indictment containing eighteen counts, charging the applicant with having, at various dates between September 2002 and November 2002, dishonestly obtained by deception for himself or for another a valuable thing or money or a financial advantage. The victim of the offences charged in the first 2 counts of this indictment was an entity called Suncorp Metway. Counts 3 to 18 in this indictment were charges of credit card fraud, that is charges of paying a debt or paying for goods or services by giving particulars of a credit card, without the cardholder's permission.

(2) An indictment containing one count only, charging the applicant with having on 21 September 2002 supplied a prohibited drug, methylamphetamine (20.3 grams).

(3) An indictment containing one count only, charging the applicant with having in June 2002 dishonestly obtained by deception a financial advantage for a firm Nicks Cars, a business of which he was a proprietor. This charge was sometimes referred to in his Honour's remarks on sentence as "the Porsche charge".

3 The applicant had pleaded guilty to all of the counts in the first indictment and the only count in the second indictment on 10 June 2004. The applicant had pleaded guilty to the charge in the third indictment on 1 November 2004, which was the date fixed for the commencement of his trial on that charge.

4 The sentences imposed by Judge Phelan on the applicant were as follows:-

For the offence charged in the third indictment, a fixed term of imprisonment of two years commencing on 10 June 2004 and expiring on 9 June 2006.

For the offence charged in the second indictment, a fixed term of imprisonment of one year commencing on 10 June 2006 and expiring on 9 June 2007.

On each of counts 1 and 2, a non-parole period of eighteen months commencing on 10 June 2007 and expiring on 9 December 2008 and a balance of term of eighteen months commencing on 10 December 2008 and expiring on 9 June 2010.

On each of counts 3 to 18, a fixed term of imprisonment of six months commencing on 10 June 2007 and expiring on 9 December 2007.

5 The total effect of the sentences amounted to head sentences of six years and fixed terms or non-parole periods of four and a half years.

6 Dishonestly obtaining by any deception any money or any valuable thing or any financial advantage is an offence under s 178BA of the Crimes Act, for which the maximum penalty is imprisonment for five years. All of the counts in the first indictment and the only count in the third indictment were charges of offences under s 178BA.

7 Supplying a prohibited drug, the only offence charged in the second indictment, is an offence under s 25(1) of the Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for fifteen years.

8 In his remarks on sentence the sentencing judge stated the facts of some of the offences in considerable detail and the facts of others of the offences only very briefly. In many of the offences a man named Kilpatrick had been a co-offender. The facts of the offences can be briefly stated as follows.

9 In the case of each of the offences charged in counts 1 and 2 of the first indictment, a loan had been obtained from Suncorp Metway by a person named Alerton, who the sentencing judge described as a dupe and as a person being used by the applicant and others. In each case Alerton's loan application to Suncorp Metway was supported by false documents, in the preparation of which the applicant and Kilpatrick had participated, in which Alerton's income and assets were greatly overstated.

10 In the case of the offence charged in the first count, Suncorp Metway, having accepted Alterton's loan application, advanced a sum of approximately $1,150,000 to enable the purchase of a property at Ewingsdale. It was proposed by the applicant and the co-offenders that the property would be re-sold and the applicant would share in the profits from the acquisition and resale of the property.

11 In the case of the offence charged in the second count, Suncorp Metway, having accepted Alterton's loan application, advanced a sum of about $190,000, ostensibly to enable the purchase of items of office equipment. However, the money advanced was otherwise disbursed, the applicant receiving some of it.

12 The applicant and Kilpatrick obtained from a corrupt bank officer details of credit cards with high credit limits, which had been issued by that bank. In each of the offences charged in counts 3 to 18, the applicant or someone on his behalf ordered goods or services over the telephone, paying for the goods or services by giving details of one of the credit cards. The cardholders had, of course, not given any permission for their cards to be used in this way.

13 The applicant, having been introduced to an undercover police operative, supplied to the undercover police operative 20.3 grams of methylamphetamine for a price of $1200. It was apparent from intercepted telephone calls that this drug transaction by the applicant was not an isolated transaction.

14 The applicant and Kilpatrick purchased a second-hand Porsche motor vehicle at an auction for a price of $130,410. The applicant fabricated documents purporting to show a sale of the Porsche motor vehicle by his firm Nicks Motors to a company associated with Kilpatrick for a price of $210,000, of which $15,000 had been paid as a deposit. Kilpatrick used the fabricated documents to obtain a payment of $195,000 from CBFC Limited, which was paid to Nicks Motors and then disbursed, mainly to Kilpatrick.

15 On 11 March 2005, that is shortly before he was sentenced, the applicant signed a list of additional charges pursuant to Div 3 of Pt 3 of the Crimes (Sentencing Procedure) Act ("the form 1"). The form 1 was also signed by someone authorised to do so on behalf of the Director of Public Prosecutions.

16 The additional charges were thirty-one charges of dishonestly obtaining money by deception and one charge of receiving stolen property.

17 In a part of the proceedings on sentence conducted on 11 March 2005 the form 1 was tendered and marked as an exhibit. Judge Phelan asked the applicant whether he admitted his guilt to the additional offences and whether he wanted the court to take the additional offences into account (s 33(2) of the Crimes (Sentencing Procedure) Act) and the applicant replied in the affirmative to both questions. However, in this exchange in court between the sentencing judge and the applicant, none of the offences for which the applicant was to be sentenced was identified as being the principal offence, in dealing with which the additional offences were to be taken into account.

18 On 11 March 2005, that is before he had actually sentenced the applicant, Judge Phelan signed a certificate on the form 1, certifying that he had taken into account the additional offences in dealing with the applicant for the offence of supplying a prohibited drug (that is, the offence charged in the second indictment).

19 However, the only reference to the form 1 in his Honour's remarks on sentence is in a passage in which his Honour was dealing with the credit card offences charged in counts 3 to 18 in the first indictment, which were offences of the same type as almost all of the additional offences in the form 1. In this passage in his remarks on sentence his Honour said:- "I do not propose to recite on to the record the details of the remaining counts involving the credit card fraud. I do note that the offender has asked me to take into account no less than thirty-two similar offences on a form 1 document, all of which relate to obtaining money by deception through that credit fraud and one of receiving stolen property. I propose to accede to that request".

20 In the next paragraph of his remarks on sentence his Honour went on to observe that the credit card fraud would sooner or later have been detected.

21 It seems to me quite likely that, notwithstanding the certificate signed by his Honour in which his Honour certified that he had taken the additional offences into account in dealing with the applicant for the offence of supplying a prohibited drug, his Honour in fact took the additional offences into account in dealing with the applicant for the credit card offences.

22 In his remarks on sentence Judge Phelan, after dealing with the objective facts of the offences, noted some of the subjective features of the applicant. The applicant had had an overbearing father and had suffered emotional and physical violence from his father. The applicant had worked in the family's motor vehicle sales and repairs and panel beating business and had then become a successful businessman in his own right in similar businesses. The applicant had been a party to protracted civil litigation in the Supreme Court against his parents, which had strained his emotional and financial resources. The applicant consumed alcohol excessively. The applicant had no previous criminal history.

23 In his remarks on sentence his Honour said that the applicant had entered into an arrangement with the bank which had been the victim of the credit card fraud to pay $15,000 as compensation for the credit card fraud. At the time of sentencing no payments under the arrangement had yet been made.

24 In his remarks on sentence Judge Phelan said that aggravating factors of the offences were that they were committed in company, that they were part of organised criminal activity, that they had caused substantial loss and that there were multiple victims and a series of criminal acts.

25 His Honour found that mitigating factors were that the applicant had no previous criminal convictions, that he had been hardworking, that he was unlikely to re-offend, that he had shown remorse and that "he had been oppressed by the over-governing paternal attitudes of his father".

26 His Honour said that the applicant was entitled to a significant discount for his pleas of guilty but his Honour did not quantify the amount of the discount he was allowing.

27 His Honour found that there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act in that the applicant's imprisonment for the present offences was his first time in prison and in the applicant's need for rehabilitation and supervision.

28 When actually announcing the sentences he was imposing, his Honour said, with respect to counts 3 to 18 in the first indictment:- "In relation to the balance of the matters on that indictment, having regard to the fact of his pleas of guilty, to his indication of preparedness to assist the authorities to give evidence and his agreement with the bank to repay the money referred to, I propose to make them concurrent with the first offence and impose in each case a sentence of six months imprisonment".

29 Although these remarks were expressed as applying only to the sentencing of the applicant for the offences charged in counts 3 to 18 of the first indictment, I infer that his Honour took into account the pleas of guilty, the assistance and the agreement for compensation in the sentencing of the applicant for all the offences.

30 The assistance provided and to be provided by the applicant consisted in the applicant having made a statement incriminating the bank officer who had supplied details of the credit cards and his undertaking to give evidence in accordance with the statement at the bank officer's trial.

31 The only ground of appeal against sentence as lodged with the Court was:- "The sentence imposed on the applicant was excessive in that his Honour: (a) Failed to give any and/or due consideration to the totality and parity principles in imposing sentence. (b) In failing to specify the discount for the applicant's plea of guilty and preparedness to give evidence against another offender, the sentence imposed on the applicant did not sufficiently indicate that credit had been given for such discount".

32 It was submitted by counsel for the applicant that the sentencing judge in sentencing the applicant for multiple offences had failed to apply the principles of sentencing stated by the High Court in Pearce v The Queen (1998) 194 CLR 610 at 623-624 (45) or the principles of sentencing stated by the High Court in Mill v The Queen (1988) 166 CLR 59; that the sentencing judge had not had proper regard to the sentencing principle of totality; that the sentencing judge had not quantified any discounts he had allowed for the applicant's pleas of guilty and the assistance provided by him and the length of the sentences indicated that his Honour had not really taken into account the applicant's pleas of guilty or the applicant's assistance; and that there was a lack of parity or proportionality between the sentences imposed on the applicant and the sentences imposed on the co-offender Kilpatrick.

33 A submission, which had been made in counsel for the applicant's written submissions, that the individual sentences were manifestly excessive, was expressly abandoned in counsel's oral submissions. Such a submission could not have succeeded in relation to any of the sentences. In my opinion, all of the sentences, so far from being manifestly excessive, were very lenient. Indeed, if his Honour did, in accordance with his certificate, take into account the thirty-two additional offences in the form 1 in sentencing the applicant for the offence of supplying a prohibited drug, the sentence imposed by his Honour for that offence was, in my opinion, manifestly inadequate.

34 In Johnson v The Queen (2004) 78 ALJR 616 the High Court held that, where a judge is sentencing an offender for multiple offences, the preferable course for the judge to adopt is that stated in Pearce of fixing an appropriate sentence for each offence and then considering questions of cumulation or concurrence and totality but that a judge is not necessarily prohibited from adopting an alternative course, in order to satisfy the sentencing principle of totality, of lowering the individual sentences below what would be otherwise appropriate and aggregating the individual sentences. See Johnson especially at pars 2 and 26.

35 In the present case the sentencing judge had a difficult task in sentencing the applicant for so many offences. Some grouping of offences and some making of sentences for different offences completely concurrent with each other was unavoidable.

36 However, features of the sentences set by his Honour, including the length of the sentences, the making of the sentence for the offence charged in the second indictment fully cumulative on the sentence for the offence charged in the third indictment and the making of the sentences for the offences charged in the first indictment fully cumulative on the sentence for the offence charged in the second indictment and the making of the sentences for the offences charged in counts 3 to 18 of the first indictment completely concurrent with parts of the sentences for the offences charged in the first two counts in that indictment, suggest to me that his Honour did not consistently adopt, either the course stated in Pearce, or the alternative course permitted by Mill and Johnson.

37 Be that as it may, the ultimate question is whether the totality of the sentences imposed on the applicant fairly and justly reflected his total criminality See R v Weldon: R v Carberry (2002) 136 A Crim R 55. In my opinion, it could not be said, even after allowing for some favourable subjective features of the applicant, that the totality of the sentences passed on the applicant was manifestly excessive or even severe. On the contrary, I consider that it was lenient.

38 Although sentencing judges are encouraged to quantify discounts for pleas of guilty and assistance, they are not obliged to do so R v Thomson, R v Houlton (2000) 49 NSWLR 383 at 419 (160); R v Hovan [2005] NSWCCA 179. I would not infer from the short lengths of the sentences set by his Honour that his Honour failed to allow any discount for these matters.

39 Kilpatrick, a co-offender in a number of the offences for which the applicant was sentenced, had himself been sentenced by Judge Phelan on 14 September 2004. All of the offences for which Kilpatrick was sentenced were offences under s 178BA of the Crimes Act. The sentences of imprisonment imposed by Judge Phelan on Kilpatrick were as follows:-

40 For each of twelve offences, one of which corresponded to the offence charged in the third indictment against the applicant, a fixed term of two years.

41 For each of forty-nine offences of credit card fraud, which would appear to correspond, almost entirely, with the sixteen credit card offences charged in counts 3 to 18 of the first indictment against the applicant and thirty-one of the additional charges against the applicant in the form 1, a fixed term of one year, wholly cumulative on the fixed term of two years but completely concurrent with each other.

42 For each of four offences, two of which corresponded with the offences charged in the first two counts of the first indictment against the applicant, a head sentence of four years with a non-parole period of eighteen months, these sentences being wholly cumulative on the fixed terms of one year but completely concurrent with each other.

43 The principles of parity and proportionality in sentencing co-offenders are well known and need not be repeated here. Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295.

44 In sentencing the applicant Judge Phelan was mindful of the sentences he had earlier imposed on Kilpatrick. In his remarks on sentence in sentencing the applicant his Honour set out the sentences he had imposed on Kilpatrick and then commented that it was difficult to compare the two offenders, because their offences did not fully overlap.

45 On this application it was submitted by counsel for the applicant that because Kilpatrick's offences were more numerous, had been committed over a longer period and had caused greater financial loss, the applicant would have a justifiable sense of grievance because of the lack of a proper disparity between the sentences passed on Kilpatrick and the sentences passed on him.

46 I do not consider that this submission should be upheld.

47 Kilpatrick was not sentenced for any drug offence corresponding to the offence charged in the second indictment for which the applicant was sentenced. This offence under s 25(1) of the Drug Misuse & Trafficking Act carried a maximum penalty of imprisonment for fifteen years.

48 The sentence imposed on the applicant for the offence charged in the third indictment was the same as each of the sentences imposed on Kilpatrick for similar offences. Kilpatrick had pleaded guilty to all charges at an early stage in the Local Court. The applicant did not plead guilty to the charge in the third indictment until the day fixed for his trial in the District Court. I accept that Judge Phelan, very leniently, made all of the sentences imposed on Kilpatrick fully concurrent with each other.

49 The head sentence imposed on the applicant for each of the offences charged in the first and second counts of the first indictment was three years. The head sentence imposed on Kilpatrick for each of the four offences he had committed was four years. I accept that Judge Phelan set the same non-parole period of one and a half years for both offenders.

50 Kilpatrick was sentenced for each of forty-nine credit card offences to a fixed term of imprisonment of one year. The applicant was sentenced for each of sixteen credit card offences to a fixed term of imprisonment for six months.

51 In the sentencing of the applicant for one or other of the offences for which he was being sentenced the thirty-two additional offences had to be taken into account.

52 My examination of the sentences passed on the applicant and on Kilpatrick has not led me to conclude that applicant would have a justifiable sense of grievance or that there is a lack of proper proportionality between the sentences passed on the applicant and the sentences passed on Kilpatrick. In any event, the jurisdiction of this Court to intervene on grounds of lack of parity or proportionality is discretionary and, even if I considered that there was some lack of parity or proportionality, I would not consider, having regard to the leniency of the sentences passed on the applicant, that this Court should intervene.

53 I would propose that leave to appeal be granted but that the appeal against sentence be dismissed.

54 HOEBEN J: I agree with James J and the orders he proposes.

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