Galvin v R

Ground 1 - Mr Galvin's objective criminality

1. Mr Galvin's case was that Colefax DCJ erred in concluding that he and his co-offender, Mr Huckstadt's, objective criminality was "approximately equivalent", when the combined quantum of drugs involved in their respective ongoing supply offences created a significant disparity between them.
2. The two offenders were sentenced together.
3. The first drug offence to which Mr Galvin entered a plea of guilty related to ongoing supply of amphetamine between 10 and 25 October 2012 at Lithgow, which attracted a maximum penalty of 20 years or 3500 penalty units or both. The second offence related to a further supply of amphetamine on 31 October at Lithgow and attracted a maximum penalty of 15 years or 2000 penalty units or both. The firearms offence related to his possession of a taser on 24 January 2013. It attracted a maximum penalty of 14 years and a standard non-parole period of 3 years
4. Mr Galvin also asked that four further offences be taken into account on sentencing on a Form 1: Knowingly taking part in the supply of methylamphetamine on 18 December 2012 at Hartley (s 25(1) of the Drug Misuse and Trafficking Act: maximum penalty 15 years or 2000 units or both) Knowingly taking part in the supply of methylamphetamine on 2 January 2013 at Lithgow (s 25(1) of the Drug Misuse and Trafficking Act maximum penalty 15 years or 2000 units or both) Possession of cannabis at Wallerawang on 24 January 2013 (s 10(1) of the Drug Misuse and Trafficking Act maximum penalty 2 years or 20 penalty units or both) Possession of an unauthorised firearm, an air pistol, on 24 January 2013 (s 7A(1) Firearms Act 1996 (NSW) maximum penalty 5 years)
5. Mr Huckstadt entered pleas to the same offences as Mr Galvin, although what they comprised, differed. He asked for eight further offences to be taken into account on sentencing under a Form 1, four of knowingly take part in the supply of a prohibited drug, one of possessing prohibited weapons, two of possessing prohibited drugs and one of possessing an unauthorised firearm.
6. Colefax DCJ imposed an aggregate sentence on Mr Galvin, which commenced at 7 years and 6 months, but after a 25% discount, was fixed at 5 years and 7 months with a non-parole period of 4 years and 2 months. His Honour also indicated the individual sentences he would have otherwise imposed. Before discount the sentence for the ongoing supply offence would have been 6 years and 6 months, for the supply offence 2 years and 6 months and for the weapons offence, 6 months.
7. Colefax DCJ also imposed an aggregate sentence on Mr Huckstadt, which commenced at 9 years, but after a 25% discount, was fixed at 6 years and 9 months with a non-parole period of 5 years. Before discount the sentence for the ongoing supply offence would have been 7 years, for the supply offence 3 years and for his weapons offence, 6 months.
8. The drugs involved in Mr Galvin's ongoing supply offence amounted to 163.1 grams and in the supply of 54.3 grams, a total of 217.4 grams. This still fell below the commercial quantity. By comparison, in Mr Huckstadt's case the ongoing supply offence involved 165.6 grams and the supply offence 141.8 grams, a total of 307.4 grams. In total, Mr Galvin submitted that amounted to a commercial quantity (250 grams), with the result that in Mr Huckstadt's case, the s 25A charge did not significantly capture the criminality of his offence.
9. Mr Galvin argued that his ongoing supply offence occurred on 10, 16 and 25 October and he committed the further supply offence on 31 October. The additional supply offence was thus capable of being charged as part of the one ongoing supply offence. While he had entered a plea to the second charge, the criminality involved in that offence, he argued, was largely captured by the first.
10. By comparison, Mr Huckstadt's ongoing supply offence occurred on 5 and 18 December 2012 and 2 January 2013. The additional supply occurred on 24 January. It thus fell outside the 30 day period required for inclusion in the first charge. Mr Galvin submitted that the result was that Mr Huckstadt's further supply, even if part of the one course of conduct, could not be viewed as having been largely encapsulated in Mr Huckstadt's first offence. It followed that his Honour had erred in the conclusions he had reached as to the seriousness of their respective offending.
11. In my view, this submission should not be accepted.
12. Mr Galvin and Mr Huckstadt both gave evidence on sentencing. That and other evidence revealed that the two offenders were, as the Crown then submitted, "largely in it together".
13. Colefax DCJ found that while the facts had been agreed, during his oral evidence Mr Huckstadt had attempted to put a gloss on those facts, which he did not accept.
14. His Honour noted that what was agreed was that the two offenders were cousins, Mr Huckstadt, the elder, aged 39 and Mr Galvin 28. They came to be identified as involved in drug supply during a NSW police strike force investigation into drugs in the Bathurst and Lithgow areas, during which phone calls were legally intercepted and an arrangement made to purchase amphetamine from Mr Galvin.
15. On 10 October 2012, Mr Galvin and Mr Huckstadt went to the arranged meeting place, Mr Huckstadt driving. Mr Galvin supplied 53.6 grams of amphetamine for $5,600, found to have a purity of 15%. This was the first of the transactions in Mr Galvin's supply offence and the subject of one of Mr Huckstadt's Form 1 offences.
16. On 16 October 2012, there was another supply, the second of the transactions in Mr Galvin's supply offence and the subject of another of Mr Huckstadt's Form 1 offences. Mr Huckstadt was, again, the driver. Mr Galvin supplied 53.7 grams of amphetamine for $4,700, found to have a purity of 13%.
17. On 25 October 2012 the third of the transactions in Mr Galvin's supply offence and the subject of another of Mr Huckstadt's Form 1 offences occurred. Mr Huckstadt was, again, the driver. Mr Galvin supplied 55.8 grams of amphetamine for $5,000, found to have a purity of 16%.
18. On 31 October 2012, Mr Galvin committed his second offence when he supplied 54.3 grams of amphetamine for $5,000, found to have a purity of 14.5%. This was also the subject of another of Mr Huckstadt's Form 1 offences, he again being the driver.
19. When contacted by the operative in November, Mr Galvin said he was concerned about four police raids in the area and that his cousin was taking over his business. Mr Huckstadt made contact later that day and told the operator "I am looking after things now". On 5 December he supplied 55 grams of amphetamine for $5,000, found to have a purity of 12%. Mr Galvin was not present. This was the first transaction in Mr Huckstadt's ongoing supply offence.
20. On 18 December 2012, Mr Galvin drove Mr Huckstadt when he supplied 54.9 grams of amphetamine for $5,000, found to have a purity of 12.5%, the second transaction in Mr Huckstadt's ongoing supply offence. This was one of Mr Galvin's Form 1 offences.
21. On 2 January 2013, Mr Galvin drove Mr Huckstadt when he supplied 55.7 grams of amphetamine (in fact, the drug known as MDDM) for $5,000, found to have a purity of 11.5%, the third transaction in Mr Huckstadt's ongoing supply offence. This was also one of Mr Galvin's Form 1 offences.
22. On 24 January 2013, Mr Galvin was not present when Mr Huckstadt supplied 141.8 grams of amphetamine, found to have a purity of 14.5%. He was not paid, because he and the operative were arrested. This was his supply offence.
23. On execution of search warrants, a taser was found at Mr Galvin's home, the subject of his weapons offence. An air pistol and 7 grams of cannabis were the subject of his two other Form 1 offences. At Mr Huckstadt's home another taser was found, as well as a body armour vest, a pellet gun, cannabis leaf and seeds, the subject of his three Form 1 offences.
24. A factual dispute emerged on sentencing between the two offenders as to whether or not there had been a real change in who was running their drug operation. There was limited cross-examination of the two offenders as to certain relevant matters identified by Colefax DCJ.
25. Colefax DCJ noted that Mr Galvin's evidence was substantially consistent with the agreed facts, but that Mr Huckstadt denied that he had taken over the business. Mr Galvin's explanation of his ongoing involvement at that point, was in order to ease the transfer of the business to Mr Huckstadt. His Honour did not accept either of that evidence.
26. Mr Huckstadt's evidence was that he did not keep the proceeds of the transactions. Even after he took on a more obvious role, he gave the money to Mr Galvin, he did not know Mr Galvin's supplier in Sydney and had not obtained any of the drugs, he had himself supplied. The only payment he had received for all of his involvement was petrol money and a small amount of drugs to meet his own habit.
27. Mr Huckstadt was recalled after an adjournment and then gave evidence of having received death threats in custody, initiated by Mr Galvin, with the result that he was in protective custody. They concerned the evidence he had earlier given in relation to the control of the business and its operation. Mr Galvin was then recalled and denied having directly, or indirectly, caused these threats to be made.
28. His Honour concluded that Mr Huckstadt's evidence was not only inconsistent with the agreed facts, but with what the operative had been told by both he and Mr Galvin. His Honour noted that Mr Huckstadt's lengthy criminal record included threatening to cause injury to a potential juror or witness. He concluded that this was indicative of a disregard for the legal trial process on Mr Huckstadt's part. In the result, he concluded that Mr Huckstadt had not met the onus of establishing matters he had raised in mitigation of his offending.
29. His Honour thus concluded that, from 28 November, Mr Huckstadt's role changed from a driver for insignificant reward, to being the primary supplier. His Honour concluded as to the drugs offences: "From the foregoing facts it can be seen that in relation to Mr Galvin's offence of ongoing supply, there were three transactions in which a total of $15,300 was involved, and 163.1 grams of amphetamines. In relation to Mr Huckstadt, there were also three transactions, in which $15,000 was involved and 165.6 grams of methylamphetamine. Furthermore, in relation to the supply prohibited drug offences, Mr Galvin was concerned with 54.3 grams of methylamphetamine and Mr Huckstadt 141.8 grams of MDDM. For parity considerations I am of the view that in terms of objective criminality, the conduct of each offender was approximately equivalent. In terms of objective seriousness, the ongoing supply offences are a little below the mid range of objective seriousness for offences of that kind; and the supply offences are below that mid range, but not at the bottom of the range." (T10)
30. His Honour's conclusion that the two offender's objective criminality was "approximately equivalent" was open on the evidence, notwithstanding that Mr Galvin was not present at the supply when Mr Huckstadt was arrested. The total weight of the drugs involved in the co-offenders' respective offending was different. While that was an important factor to be considered in the sentencing exercise, it was not determinative.
31. What had to be taken into account in assessing the objective seriousness of the offenders' respective offending included the evidence as to the business operation, as well as the number of instances of supply and the individual quantities supplied (see R v Giang [2005] NSWCCA 387 at [1 8] - [1 9]; R v Hoon; R v Pouoa [2000] NSWCCA 137 at [1 6]). As discussed in R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at [3 3] the quantity of drugs was not the sole or principal determinant in this sentencing exercise. More important was Mr Galvin's role and the level of his participation in the business.
32. Further, it was also relevant for his Honour to have regard to the gradation of seriousness reflected by the statutory increases in penalty, as the quantity of the drug supplied becomes commercial or large commercial quantities. In Mr Galvin's case the total amount in which he was involved was some 328 grams, for which the operative paid over $30,000 in total of $30,300. That also amounted to a commercial quantity. That evidence also shed considerable light on the nature and size of this drug operation.
33. Plainly, Colefax DCJ did not accept Mr Galvin's evidence that his involvement on the two occasions in January, when he drove Mr Huckstadt to meet the operative, had only been in order to ease the transfer of the business. That evidence had to be considered in light of the fact that Mr Galvin had not been present when Mr Huckstadt had first met the operative alone, in order to supply in November. On all of the evidence it was open to his Honour to reject Mr Galvin's evidence that his continuing involvement in the operation was less than before and was not ongoing. That conclusion was supported by the evidence that it was Mr Galvin who had obtained drugs on credit from his supplier, which pointed to his operation of a substantial drug business, given the large quantities of drugs and money involved in his offending.
34. In the result, I cannot conclude that a different sentence was warranted in law, as was submitted for Mr Galvin, given the objective criminality involved in his offending. The conclusions which Colefax DCJ reached in that regard were open on the evidence.
35. This ground of appeal must, accordingly be dismissed.

Ground 2 - the sentence was manifestly excessive

1. This ground was also not made out.
2. In order for manifest excess to be established, an appellant must establish that the sentence was unreasonable, or plainly unjust (see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]). Some misapplication of principle, even if where and how cannot be discerned from the reasons, must be shown (see Hili v The Queen [2010] HCA 45, (2010) 242 CLR 520 at [5 9]). As discussed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [ 25 ], Gleeson CJ, Gummow and Callinan JJ said: "As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentence allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentence not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy'. [footnotes omitted]"
3. Here no error of fact has been established. Nor were irrelevant matters taken into account, or relevant matters overlooked. His Honour concluded that Mr Galvin's ongoing supply offence fell a little below the middle of the range for such offences and that the supply offence was below the mid-range, but not at the bottom of the range. These conclusions were not challenged on appeal.
4. The ongoing supply offence attracted a maximum penalty of 20 years and the supply offence 15 years. The weapons offence attracted a maximum penalty of 14 years and a standard non-parole period of 3 years. They were all statutory guideposts which had to be taken into account in this sentencing exercise (see s 54B(2) of the Crimes (Sentencing Procedure) Act and Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120).
5. Before discount, Mr Galvin's aggregate sentence was 7 years and 6 months, but after a 25% discount, was fixed at 5 years and 7 months with a non-parole period of 4 years and 2 months. That was a relatively favourable outcome for Mr Galvin, in all of the circumstances which his Honour had to consider in this sentencing exercise, given the nature and seriousness of Mr Galvin's offending and his moral culpability for that offending.
6. In application of the principle of totality, his Honour had to consider the question of concurrency and accumulation, even though an aggregate sentence was imposed (see R v Rae [2013] NSWCCA 9 at [45]).
7. It is settled that where the criminality of one offence significantly overlaps with another offence, an aggregate sentence should only be increased marginally (see Delaney v R; R v Delaney [2013] NSWCCA 150; (2013) 230 A Crim R 581 at [ 66 ]). Here, however, Mr Galvin was charged and entered a plea to an entirely separate offence, involving supply of a different amount of drugs, on another day, for another payment. His Honour was entitled to conclude that the sentences imposed should not be totally concurrent and indeed, had he imposed totally concurrent sentences, may have fallen into error.
8. As discussed in Subramaniam v R [2013] NSWCCA 159 at [ 27 ], imposing the same sentence for a number of offences that differ in criminality, may demonstrate a failure to comply with the fundamental principles of sentencing preserved by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which permits the imposition of aggregate sentences. Such questions must be determined in the way discussed in Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]. "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
9. In reaching his conclusions and undertaking the instinctive synthesis discussed in Markarian at [37] - [39], Colefax DCJ also had to consider the concessions made for Mr Galvin on sentencing. They included that his offending was serious; the ongoing supply charge was the most serious of his offences; that his offences had involved significant quantities of drugs; and that he was at the level of wholesalers, much higher than street dealers. He also had to consider the four Form 1 offences, which each had to result in a higher sentence being imposed on Mr Galvin (see Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [23] (Bathurst CJ); R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185 at [62]).
10. Ultimately, his Honour was required to impose an aggregate sentence, which included a non-parole period which reflected the minimum period of actual incarceration that Mr Galvin had to spend in full-time custody, having regard to all the elements of punishment including rehabilitation, the objective seriousness of his crimes and his subjective circumstances (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628 - 629).
11. For Mr Galvin it was argued that his Honour erred because an aggregate sentence of 5 years, 7 months with a non-parole period of 4 years, 2 months was excessive, given his Honour's findings as to the objective seriousness of his offending.
12. On sentencing it had been submitted that it was open to his Honour to make the sentences for the two drug offences wholly concurrent, in the circumstances, which included that the final transaction the subject of the separate supply charge had occurred within the 30 day period provided for ongoing supply offences. Mr Galvin's subjective circumstances supported that approach. He had a limited criminal record, his prospects of rehabilitation were found to be reasonable, he had long term drug and gambling addictions, but was in a long term relationship and had the support of his partner and was generally in employment.
13. His Honour did not accept Mr Galvin's submissions. The result of his Honour's approach, it was argued, in partially aggregating those sentences, was a manifestly excessive sentence. That, it was submitted, was not significantly mitigated by the fact that there was effectively no additional time imposed upon Mr Galvin for the weapons offence, which would not have attracted a custodial sentence, if considered on its own.
14. Reliance was also placed on sentencing statistics, which showed that the indicative total term for the ongoing supply offence, after discount, fell in to the top 5 or 6% of sentences for similar offences involving amphetamines. The indicative non-parole period for offenders with Form 1 offences taken into account placed the sentence within the top 2%. Further, only about half of offenders charged with a single supply offence with drugs amounting to less than the commercial quantity, received a prison term. At least 51% of those sentenced to a term of imprisonment, after a plea, had sentences less than the indicative sentence indicated for Mr Galvin imposed upon them.
15. These submissions were of no assistance to the case pressed for Mr Galvin. This Court has repeatedly discussed the problems with undue reliance on statistics (see for example Sinkovich v The Queen [2011] NSWCCA 90 at [40]; Furia v R [2010] NSWCCA 326 at [74]). In this case, given the nature and seriousness of the offending for which Mr Galvin was being sentenced, the statistics relied on simply showed no error in the aggregate sentence which his Honour imposed.
16. There was no error in his Honour's approach, either in principle or in result. That his Honour did not make the drug offence entirely concurrent with the drug supply offence, as he did with the weapons offence, does not establish the necessary error or that the sentence imposed upon him was unreasonable or plainly unjust.

Ground 3 - remorse

1. In Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297 at [ 44 ], Buddin J explained: "Remorse in [a sentencing] context means regret for the wrongdoing which the offender's actions have caused because it can be safely assumed that an offender will always regret the fact that he or she has been apprehended. Remorse is but one feature of post-offence conduct upon which an offender may seek to rely as a matter which has the potential to mitigate penalty. The manner in which the issue of remorse is approached is not unique to either the sentencing process or to the courtroom. Indeed, it is a common feature of everyday existence. Ordinary human experience would suggest that it is only natural that a person who has committed some misdeed would wish to make the most favourable impression possible in seeking to make amends for it."
2. In this case Colefax DCJ did not accept Mr Galvin's evidence as to his remorse, observing: "Mr Galvin entered his pleas of guilty at the first available opportunity and it is appropriate that he receives a discount of twenty-five percent. Although Mr Galvin has expressed remorse in the witness box, and also to the author of the pre-sentence report, I was left with some sense of unease about the genuineness of those expressions of remorse - as opposed to regret at having been caught. Mr Galvin had taken no steps to address his cannabis or gambling problems before his arrest. His decision to discontinue his involvement in supplying drugs to the old high school friend of Mr Muldoon was not occasioned by any insight into his criminality, but rather because he heard of raids being conducted by the police. And, somewhat surprisingly, there is no reference to or disclosure of his long term cannabis addiction in the pre-sentence report. Nevertheless, and not withstanding that I am unable to be comfortably satisfied that there is genuine remorse, by having regard to this offender's minimal past criminal history, his age and the support of his family, I think his prospects for rehabilitation might be reasonable." (T12-13)
3. He later said in relation to Mr Huckstadt that: "I have also had difficulty in assessing whether Mr Huckstadt is remorseful for his offences. Remorse is significant in a number of respects, not least because it impacts upon an assessment as to his prospects of rehabilitation. The difficulty I have had in assessing Mr Huckstadt's remorse is connected with the evidence he gave concerning whether in fact he took over the business from his cousin after late November 2012. And as I have already said I was not satisfied on the balance of probabilities that his assertions in that regard were true. I have therefore reservations about his expressions of remorse." (T15)
4. His Honour had earlier observed: "Mr Huckstadt has the onus of proving his assertions in this regard as they clearly matters in mitigation. I am not satisfied on the balance of probabilities that he has discharged that onus." (T9)
5. On the following page when assessing Mr Galvin's evidence as to his explanation for the taser found in his possession, his Honour also referred to the "balance of probabilities".
6. These sentencing remarks must be read as a whole. A fair reading of them does not reveal any error as to the standard of proof applied to Mr Galvin in relation to the mitigating matters which he set out to prove. Indeed, in oral submissions on appeal it was accepted for Mr Galvin that what his Honour said in relation to remorse, did not change the relevant standard per se.
7. What was pressed was that what his Honour did was to impose the standard referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 on Mr Galvin, usually reserved for grave and adverse findings, contrary to the interest of the person against whom they are being found. If that standard had not been applied, it was argued there was material on which a finding of remorse could have rested.
8. That submission must be rejected. It does not accord either with the particular words his Honour used, or the sentencing remarks as a whole. A finding of remorse is a conclusion on evidence which it fell to his Honour to assess. No error has been shown in that regard, either in principle or result.
9. This ground must also be dismissed.

Orders

1. For these reasons, I would grant Mr Galvin leave to appeal, but dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2015