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[2020] VSCA 69
General information, not legal advice.
Court of Appeal (Vic)
2020-03-25
Mr J, Forrest JA, Osborn JA
Original judgment source is linked above.
DPP v Galea (Unreported, County Court of Victoria, Judge Meredith, 9 May 2018)
CRIMINAL LAW - Appeal - Sentence - Armed robbery - Total effective sentence of 3 years and 3 months' imprisonment with non-parole period of 1 year and 8 months - Co-offender sentenced in Koori Court - Co-offender sentenced to 2 year Community Correction Order with 250 hours of community work - Whether principle of parity infringed - Whether sentence manifestly excessive - No unjustifiable disparity between sentences - Leave to appeal refused.
1 On 9 May 2018 in the County Court at Melbourne, the applicant pleaded guilty to armed robbery. On that day, he was sentenced to three years and three months' imprisonment with a minimum term before parole eligibility of one year and eight months.
2 His co-accused in the armed robbery offence was Jack Ryan. He was not sentenced until 22 October 2019. He was placed on a two-year Community Correction Order ('CCO') with various core conditions, one of which being that he perform 250 hours of community work.
3 The table below sets out these sentences in more detail.
4 years and 3 months' imprisonment with a non-parole period of 2 years and 6 months
Other relevant orders: Forfeiture order, forensic sample order
2 years and 6 months' imprisonment with a non-parole period of 12 months
Other relevant orders: Forfeiture order, forensic sample order
4 On 4 March 2020 - that is, nearly 22 months after the applicant was sentenced - he filed an application for an extension of time to lodge a notice for leave to appeal. This was granted by the Deputy Registrar of this Court.
5 Given that the applicant has been eligible for parole for about two months, this application has been listed with expedition.
6 The sole ground of appeal is expressed as follows:
The sentence imposed on the applicant is too disparate when compared to the sentence of the co-accused and breaches the principle of parity.
7 It is immediately apparent that while the applicant accepts that some disparity was justified between the two offenders, the extent of that disparity is impugned.
8 We shall set out a brief background to the offending.
9 On Friday 3 November 2017 at approximately 1.00 am, the then 24 year old applicant and 20 year old Jack Ryan approached a 7-Eleven convenience store in Dromana. Both were present in a green Ford sedan. It is unclear who was driving. The door to the store was locked and the store attendant was working at the back of the store. The vehicle was reversed into the front doors, causing extensive damage. Both offenders entered the store on foot. The applicant wore a mask, a cap, a hood and gloves. He carried a jemmy bar. Ryan was similarly attired.
10 The applicant approached the store attendant, brandishing the jemmy bar; he came close to the attendant and yelled at him to open the counter door. Ryan remained present but not active. He said nothing. Both offenders were granted access to behind the counter. The applicant yelled at the store attendant again, demanding access to cigarettes. He held the jemmy bar aloft. He demanded to know where the security cameras were. He smashed the CCTV monitor with the jemmy bar. Both the applicant and Ryan then commenced taking packets of cigarettes, the applicant from a cabinet in the office; Ryan from the counter area.
11 Police, patrolling Point Nepean Road, saw the green Ford in position at the damaged front doors to the store. They confronted the offenders with firearms drawn. Both offenders were arrested without incident. Ryan was unarmed. The store attendant was understandably terrified. The applicant and Ryan made 'no comment' records of interview.
Comparative subjective circumstances
Age
12 The applicant was 24 years old at the time of offending; Ryan was 20 years old.
13 The applicant had four prior appearances in the Magistrates' Court between February 2012 and May 2014. He was found guilty in 2012 of unlawful assault and placed on a 12-month good behaviour bond which he breached. He was subsequently convicted and fined $400. In December 2013, he was convicted of robbery, unlicensed driving, resisting police and using an unregistered vehicle. He was convicted and placed on a CCO for 15 months with conditions, including that he perform 50 hours of community work, receive treatment for drug abuse and undergo a mental health assessment. In May 2014, he was convicted and fined $400 for possessing a prohibited weapon and possessing a dangerous article in a public place.
14 By contrast, Ryan had one unrelated prior criminal matter for possession of cannabis.
15 The applicant, at the time of sentencing, was a married man with an infant child. His parents separated when he was four years old and he moved between parents as a child. By the age of 16, he had been expelled from at least four schools and his education had concluded. He had been homeless at times and had worked intermittently in labouring type jobs. He consumed cannabis daily and, at the time of offending, was being treated for attention deficit hyperactivity disorder.
16 Ryan, at the time of sentencing, was from a close and supportive family. He is a young Aboriginal man with traditional connections to the Palawa people of Flinders Island and Tasmania. He was sentenced in Koori Court. We shall return to this aspect later in these reasons. A neuropsychologist assessed Ryan's IQ as borderline with a score of 71. He is deaf in one ear as a result of childhood infections. He had significant difficulties at school, including being bullied. He left high school at the age of 15, and TAFE at 17. He has held casual jobs in hospitality. He had a long-term history of illicit drug use.
17 The applicant was released on bail after 13 days in custody. He remained on bail until his plea hearing. He pleaded guilty at an early stage, facilitated the course of justice and was considered by the sentencing judge as 'appropriately remorseful'.[1]
18 Ryan was also released on bail shortly after his offending; strict conditions were imposed. He pleaded guilty at an early stage and, in significant contrast to the applicant, was dealt with in the County Court sitting as a Koori Court. His plea took place on 5 November 2018. Before sentence, he participated in the Bunjilwarra residential drug treatment program. The month he spent there was treated as quasi custody.
19 The principle of parity is derived from the notion of equal justice. There must not be an unjustifiable disparity in sentence between similar offences and similar offenders. Like cases should be treated alike.[2] Where the disparity between co-offenders is 'marked' or 'manifestly excessive', the Court will intervene.[3]
20 Maxwell ACJ, in Hilder v The Queen,[4] identified the question to be addressed as
whether it was reasonably open to the judge in the circumstances of the case to differentiate - or fail to differentiate - between the offenders in the way he or she did.[5]
21 In the case before this Court, it cannot be sensibly argued that the applicant's sentence is, considered alone, manifestly excessive. By any measure, this was serious offending. The applicant deliberately chose a 'soft target' for a terrifying late night ram raid. In our view, the head sentence of three years and three months' imprisonment is, viewed in isolation, unimpeachable. We are fortified in this conclusion by the fact that the applicant argues only a parity ground and, in fact, did not seek leave to appeal until after the co-accused had been sentenced a full 17 months later.
22 We have set out the general circumstances that attended the sentencing exercises of both the applicant and his co-offender. In our view, the applicant has failed to make out any unjustifiable disparity. Put another way, the applicant has failed to demonstrate that the disparity between the two sentences is manifestly excessive. In particular, we consider the following differential factors well justify the substantial disparity between the two sentences:
23 When the totality of the relevant circumstances is considered, the applicant can have no justifiable grievance with respect to the disparity between his own sentence and that imposed on Ryan.
24 For these reasons, we will refuse leave to appeal against sentence.
25 In an affidavit received yesterday, the applicant's solicitor advised this Court that he is currently eligible for parole, but that the Adult Parole Board has not met yet to consider this application.
26 We have no capacity to direct the Adult Parole Board to meet in respect of the applicant and we understand that the present circumstances are trying indeed. Notwithstanding this, the applicant has been eligible for parole for about two months and we are told he has completed the courses as required to be considered for parole. We would encourage the Adult Parole Board to consider this application as soon as reasonably possible.
[1] DPP v Galea (Unreported, County Court of Victoria, Judge Meredith, 9 May 2018), [14].
[2] Kelly v The Queen [2011] VSCA 10, [5].
[6] See, eg, Honeysett v The Queen (2018) 56 VR 375.
Galea
The Queen [2020] VSCA 69
(2018) 56 VR 375