R v Galea [2001] VSCA 115

R v Galea [2001] VSCA 115 - VSCA 2001 case summary — Zoe

[16]

It was submitted under the authority of ground 4 that the sentence imposed by his Honour of 4 years on count 3, that is, perverting the course of justice, was manifestly and appealably disparate to the sentence of 18 months for the same offence imposed on Vigilante. Mr Croucher relied primarily in support of this ground on his written submissions. He contended that the disparity is such as to engender a justifiable sense of grievance in the appellant, being one which would be shared by an objective observer. I do not agree. Parity in sentencing between co-offenders is always a desirable objective but, as in the application of most sentencing principles, it is a matter of degree and relativity. There is no rule of law which requires offenders to be given the same sentence on the same counts even if no distinction can be drawn between them. It will of course not be uncommon for the circumstances of the offenders to be quite different, as will be their respective roles in the offence for which they are being punished. It is only where the disparity of sentence is manifestly excessive that an appellate court will be moved to intervene on the basis that it is clear that justice has not been even-handed. Before a court will intervene however, the disparity would need to be so manifest that it not only engenders a justifiable sense of grievance in the offender but would give the appearance to an objective observer that justice has not been done. Cf R v. Bernath [1997] 1 V.R. 271 at 276-7 per Callaway, J.A. It seems to me that before such a disparity can be said to exist in the case of co-offenders who have pleaded guilty to multiple offences, an appellate court must not only have regard to the discrepancy in sentence for the particular offence complained of, but the influence which that sentence has played in the overall sentencing disposition. It is, after all, the discrepancy in the ultimate disposition which inevitably will engender the justifiable sense of grievance in a particular offender, and the appearance of injustice in the mind of the objective observer. Although an appellate court is primarily concerned with individual sentences, it is also concerned with the issue whether, at the end of the day, the overall sentencing discretion reflects error of such a kind that it considers that some other sentence more favourable to the appellant should have been imposed.

[21]

I am confirmed in the view that I hold by having regard to the influence which the sentence complained of plays in the "real time" to be served by the appellant. The judge directed that one year of the sentence which he imposed upon count 3 be cumulated upon the sentence for armed robbery. The sentence imposed upon Vigilante in respect of the same count was ordered to be served concurrently with the sentences imposed upon count 1 and 2. The ultimate difference between the head sentences imposed upon the two co-offenders was 9 years in the case of the appellant and 8 years in the case of Vigilante. Because of the influence of the sentences which had been imposed upon the appellant for the drug offences - and which he was undergoing at the time when the judge imposed these sentences - the real effect of the sentences imposed by the sentencing judge was that the appellant would serve approximately a further 3 years in custody beyond the time he was required to serve under the drug sentences before he becomes eligible for parole. It is this real difference in time to be served which becomes significant in my mind in determining whether an appearance of injustice, occasioned by a discrepancy in sentencing for an individual offence, has occurred. Disparity in sentencing must take account of all aspects of the sentencing process which, in this case, included the respective total sentences imposed upon the two offenders and the application of totality principles in respect of the appellant. As Dawson and Gaudron, JJ. pointed out in Postiglione at pp.301-2, a "proper comparison" for the purposes of parity necessarily "involves a consideration of all the components [of the sentencing dispositions]". It could not sensibly be contended here that the difference of one year in the head sentence imposed upon the appellant and that imposed upon Vigilante is manifestly excessive having regard to their respective antecedents, and the co-operation and early pleas of Vigilante; nor can it be said in my view that the application of the totality principle in fixing a single non-parole period for the appellant has worked any injustice to him. If anything, it seems to me to have worked to his advantage in the sense that, if anyone is likely to be aggrieved, it would be the co-offender who has been required to serve a non-parole period for these offences of 5 years.

[24]

Grounds 2, 3((a) and 3(b) assert that his Honour erred in directing cumulation of portion of the sentences imposed on counts 2 and 3 upon the sentence imposed on count 1. The thrust of the submission is that the judge should not have ordered any cumulation of the sentence on count 2, that is, false imprisonment, upon the sentence imposed upon the armed robbery count because it was, in essence, part and parcel of the armed robbery. It was submitted that, in truth, the appellant was being punished twice for what, in effect, was the same act and contrary to s.51 of the Interpretation of Legislation Act 1984. Once again, in my view, the argument destroys itself by over-refinement. It takes little imagination to understand that the imprisonment of Mr Papalardo did not entirely overlap the armed robbery. That offence was, in my view, complete at Notting Hill, but it was necessary to confine the driver, in circumstances of uncertainty and obvious terror, until such time as the proceeds of the theft had been disbursed beyond recall. That is the aspect of the offence in count 2 which, in my view, called for cumulation. It was so remarked upon in terms with which I entirely agree by the judge who sentenced Vigilante. I thus reject the submission made to this Court that "the two offences were so closely connected in time and circumstance that it was proper to order total concurrency". Further, it is submitted, the order of cumulation of one year of the sentence on count 2 upon the armed robbery count has produced a total effective sentence which offends the principles of totality. It is submitted that totality "demanded that there be total - or nearly total - concurrency between the sentences on all three counts", particularly in light of the fact that the appellant was already serving substantial sentences for the drug offences. For the reasons which I have already given, I can see nothing in what his Honour did which offends the principles of totality. He was required to impose sentences on what I view as three very serious offences and to ensure, as best he could, that those sentences adequately reflected the criminality of the appellant. He was also, as counsel submits, required to take into account the sentences which the appellant was already undergoing to ensure that the ultimate sentence imposed was itself consistent with principles of totality. In my view, the sentences which his Honour imposed disclose careful attention to all of these matters. There is nothing, I think, to be found in the sentencing discretion which offends principles of totality. I would accordingly reject these grounds of appeal.

[25]

Grounds 8 and 9 allege that the sentence imposed upon count 1 can be seen to be manifestly excessive because the judge took as his starting point a maximum sentence beyond that fixed by the Crimes Act. As I have said, the judge proceeded on the basis that the maximum sentence for armed robbery was 25 years, whereas it was in fact at the relevant time 20 years. In my opinion, the asserted error was not a material one in this case and has not caused the sentencing discretion to miscarry. There may be cases when the judge has proceeded upon such a misguided view of the maximum penalty available that it can be demonstrated that his sentencing discretion has clearly miscarried. The case of R v. Stol (1989) 44 A.Crim.R. 137 was such a case. But it is equally apparent that there are cases where, because the maximum sentence is a high one, and the distinction between what it is in fact and what the judge perceived it to be, is proportionately small, the appellate court can see from the size of the sentence imposed that the judge has not been "steering by the maximum" in imposing that sentence. In such circumstances, the erroneous perception of the maximum penalty will not be material to the sentence imposed. See Morton [1986] VicRp 82; [1986] V.R. 863 at 865; Minh Thinh Ma (unreported, Court of Appeal, 21 May 1998); R v. RJE [1999] VSCA 79; R v. Dennis [2000] VSCA 81; (2000) 114 A.Crim.r. 33 at 37, per Charles, J.A. In this case, where the judge has imposed a sentence of approximately one-third of the maximum available (whether one takes the maximum as being 20 or 25 years) for an offence which, on any view, was a very serious example of the crime of armed robbery, it cannot I think be said that his Honour's statement that the maximum penalty was 25 years, rather than 20 years, demonstrates any material error in the exercise of his discretion; nor has it produced a sentence on count 1 which, in my view, is manifestly excessive. Furthermore, having regard to the seriousness of the crime and the antecedents of the appellant, I would not be disposed to pass any other sentence on count 1 than that imposed by his Honour, even if I thought that there was a material error involved in the assumption that the maximum sentence was 25 years.

[27]

It was submitted under ground 6 that his Honour was in error in failing to moderate aspects of general deterrence and in overestimating the appellant's moral culpability, on account of the psychological reports which his Honour had before him. There were a number of such reports before the judge. They had been compiled by a number of experts over a period of more than a decade for a variety of sentencing purposes. There seemed to be little doubt in view of those reports that the appellant was an illiterate man and dyslexic. The real issue before his Honour, however, was whether his subnormal intellect reduced his capacity to fully appreciate the criminality of his acts. His Honour had all this material before him. He also had the added advantage of having seen and heard the appellant giving evidence during the voir dire. His Honour rejected the proposition that the appellant's intellect was inconsistent with his appreciation of his criminal conduct. It was submitted on the appeal that his Honour was in error in taking this view of the material, that he should have preferred the views of Dr Byrne and Dr Jackson and thus moderated the effect of the aspects of deterrence and denunciation on account of the applicant's subnormal intellect. I cannot agree. It was a matter for his Honour to determine whether the appellant's psychological deficiencies affected to any and what extent his moral culpability. Where his Honour has seen the appellant and heard his explanations and noted his intuitive capabilities, it would I think be inappropriate for this Court to gainsay the views which the judge has formed and expressed. But even from this vantage point it is clear that the appellant was privy to offences which were the product of planning, cunning and nerve. I would myself have been surprised if the judge had taken a view of the appellant's criminality different from that which he did. The authority of Richards and Gregory [1998] 2 V.R. 1, upon which counsel in his written submissions relied, is of little consequence in a case like this where the appellant has pleaded guilty to crimes of intention.

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