R v Galea [2001] VSCA 115

2. On 11 August of last year the appellant, Mark Paul Galea, pleaded guilty to one count of armed robbery, one count of false imprisonment and one count of intending to pervert the course of justice. The first two offences were committed on 4 July 1997 and the third was committed between 4 September 1997 and 29 September 1997 whilst the appellant was in custody.

5. At the time when the offences were committed, the appellant was approximately 27 years of age. For a man of that age he had a bad record, having admitted 38 previous convictions (many for acts of dishonesty) from 12 court appearances.

8. He had been arrested on 3 September 1997 and remanded in custody. The sentencing judge noted that the appellant had remained in custody until 2 July 1998 when he was admitted to bail. He further noted that eight months of that period in custody had been served in relation to other offences so that upon his admission to bail in July of 1998 he had been in custody for these offences for approximately 90 days. However, within 18 days of being released on bail, he committed a series of drug offences for which he was, on 23 May 2000, ultimately sentenced by this Court on a Director's appeal to a total effective sentence of seven and a half years with a non-parole period of five years. The Court of Appeal had made a pre-sentence detention declaration of 664 days, with the result that, as the sentencing judge said, he would have become eligible for parole on the drug offences for which he was sentenced by this Court in September 2003. Section 14 of the Sentencing Act 1991 required the sentencing judge to fix a new non-parole period under the sentences which he was imposing. His Honour noted that the maximum penalties prescribed for the offences for which the appellant had pleaded guilty before him were: as to the armed robbery, 25 years; as to false imprisonment, 10 years; and for the offence of intending to pervert the course of justice, 25 years. In fact, his Honour had misdescribed the maximum penalty for armed robbery. It was, at the relevant time, 20 years' imprisonment, a maximum which had been increased to 25 years on 1 September 1997 by s.60 of the Sentencing and Other Acts (Amendment) Act 1997.

11. The appellant had initially pleaded not guilty to the offences with which we are concerned when first presented before the County Court in July 2000. A voir dire had proceeded for some eight days during which the admissibility of certain evidence was challenged. When the challenge failed, the appellant was rearraigned and he pleaded guilty to the offences to which I have referred and the matter was adjourned until 18 September 2000 for a hearing of plea in mitigation. Following the plea, the sentencing judge remanded the appellant for sentence, and the sentences which were imposed on 22 September 2000 were as follows: on count 1, armed robbery, 7 years' imprisonment; on count 2, false imprisonment, 2 years' imprisonment; and on count 3, perverting the course of justice, 4 years' imprisonment. The judge directed that one year of each of the sentences imposed on counts 2 and 3 be served cumulatively upon the sentence imposed on count 1. The total effective sentence was therefore one of 9 years. As I have said, because the appellant was currently serving the sentences for drug offences imposed by the Court of Appeal on 23 May 2000, it became incumbent upon the sentencing judge to fix a single non-parole period. He fixed a period of 6 years to commence on the date of sentence, and he declared that the period of 90 days had already been served pursuant to the sentences imposed.

14. The appellant, pursuant to leave granted by Tadgell, J.A. on 1 December 2000, now appeals against the sentences imposed. Before turning to the grounds of appeal argued on his behalf by Mr Croucher, it is desirable to refer briefly to the circumstances of the offences.

17. The armed robbery was constituted by the hijacking of a semi-trailer driven by one Sam Papalardo at about 7 o'clock on the morning of 4 July 1997 in Howleys Road, Notting Hill, not long after that semi-trailer had left the warehouse premises of Philip Morris in that road. The semi-trailer carried a cargo of cigarettes and lighters which had been loaded at the Philip Morris premises. The cargo was destined for Western Australia, and was valued at approximately $1 million. At an isolated crossroad, not far from the Philip Morris premises, the appellant forced it to stop when he walked in front of the vehicle. He walked to the passenger's side door donning a balaclava. At the same time, a co-accused, one Domenic Vigilante, entered the vehicle from the other side with a loaded shotgun which he thrust into the side of the face of Papalardo. Shortly thereafter, the appellant and Vigilante bound and gagged the driver, put him into the sleeper's compartment of the vehicle and covered him with apparel which they had obtained from that compartment. It comes as little surprise to learn that Papalardo has suffered significantly as a consequence of this experience. He has since disposed of his vehicle, left that form of employment and even changed his address.

20. The armed robbery and kidnap of the driver was the consequence of an audacious and well-planned enterprise. It has never been fully determined, I think, who were the brains behind the enterprise, although it was the Crown case before the sentencing judge that it had been conceived by a man called Said Bey and a syndicate of his cronies who were involved in the distribution of illicitly obtained tobacco products which are, it would seem, easily capable of being distributed with a view to defrauding the revenue. It is manifest that the rewards of such a crime are as great to the perpetrators as, say, the hijacking of an Armaguard vehicle, but the risks posed to those who carry out the crime are significantly less because the target has no support and presumably is unarmed. It would seem from the material before the judge that careful arrangements had been made for the disposal of the contraband because the vehicle was driven to a truck depot in Altona North where arrangements had been made for the transfer of the cigarettes and lighters into vans. After this had been effected, the trailer was driven a short distance, with the hapless Mr Papalardo still on board, to an isolated place on the Esplanade at Altona. Here, the driver, having heard the occupants alight from the vehicle, was able to free himself from his bonds and alert the police.

23. It was not long before the appellant and Vigilante fell under suspicion, mainly because they had been inadvertently seen by police officers on the morning preceding the robbery, namely, 3 July 1997, whilst they were sitting in Vigilante's car in Howleys Road not far from where the robbery occurred on the following day. The officers, being suspicious, had spoken to the two men who told them that they were looking for work and waiting for an opportunity to enter adjacent premises to ask for a job. It would seem in retrospect that the robbery perhaps had been planned for this preceding morning but had been delayed for a day to avert suspicion. In any event, the two men, whose details had apparently been taken by the police, were placed under observation. Between 6 July and 25 August each was observed expending large amounts of cash, buying land, cars and other assets and in gambling pursuits at the casino. On 3 September 1997 they were, as I have said, taken into custody.

26. Vigilante, whose criminal record was negligible, made full confessions as to his part in the robbery and made an early plea of guilty. The appellant however was far more circumspect and, whilst admitting a connection, sought to portray himself as playing a role quite different from the one he had in fact played and which he eventually admitted. In any event, it became tolerably clear that the two of them had received some $400,000 for their part in carrying out the robbery.

29. Shortly after they had been taken into custody at the Melbourne Assessment Prison, it would appear that the two of them - but largely under the instructions of the appellant - sought to influence a fellow prisoner called Weston to make a false confession to the police that he, Weston, was the person who had carried out the armed robbery. For a promise of $50,000 Weston, who was shortly to be returned to New Zealand, was carefully tutored in the facts of the robbery and procured to make a statement to the solicitors for the appellant and Vigilante falsely accepting the blame for the crime. This blatant attempt to pervert the course of justice was intercepted with the assistance of Weston and ultimately formed the basis of count 3 on the presentment to which each of the appellant and Vigilante pleaded guilty.

32. Vigilante was dealt with before a County Court judge on 30 March 1999 upon his pleas of guilty to the counts of armed robbery, false imprisonment and perverting the course of justice, namely, the same three offences to which the appellant pleaded in September of 2000. Vigilante was sentenced to 6 and a half years on the count of armed robbery, 3 years on the count of false imprisonment and 18 months on the count of perverting the course of justice. The judge directed that 18 months of the sentence imposed for false imprisonment be served cumulatively upon the sentence imposed for the armed robbery, thus producing a total effective sentence of 8 years. A non-parole period of 5 years was fixed, and an appeal to this Court was subsequently abandoned.

35. I now turn to the grounds of appeal made on behalf of the appellant. I will do so in the order in which they have been argued before this Court. In advance I think however that I should say, without in any way being critical of the arguments advanced, that many of them are, to my mind, over-refined by technicality and thus tend to obscure the contextual framework in which the judge was required to execute what seems to me to have been a difficult sentencing task.

38. 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.

41. In this case the sentencing judge was well aware of the sentences which had been imposed on the co-offender, Vigilante, at the time when he imposed sentences on the appellant. He was also aware that the co-offender was sentenced on the basis that he was a person who had a negligible criminal history comprising essentially two offences of driving whilst disqualified. He was also aware that Vigilante had, when apprehended, made a full confession of his role in the offences and had been co-operative with police. These matters stood in contrast to the position of the appellant who had been far from co-operative with police, who had a lengthy criminal history (albeit not involving crimes of violence) and who had, after committal proceedings, pleaded not guilty; ultimately entering of plea of guilty after unsuccessfully contesting the admissibility of confessional evidence on a voir dire which had lasted for eight days.

44. The specific complaint which is now made on the question of parity is directed only to the sentences imposed on the count of perverting the course of justice. It is claimed that the sentence imposed by the judge on that count of 4 years' imprisonment is so manifestly disparate from the sentence of 18 months' imprisonment imposed for the same offence on Vigilante as to give rise to the manifest appearance of injustice complained of. On the material which was before him it is apparent that the judge took the view that the role of the appellant in the commission of that offence was more significant than that of the co-offender. He said:

"Between that date [that is the date of being taken into custody] and 29 September 1997, you both acted with an intention to pervert the course of justice. You approached a prisoner by the name of Weston and arranged for him to accept responsibility for the armed robbery. He was a New Zealander who expected to be deported and you [and the co-offender] agreed to pay him $50,000 for his services. You explained the details of the offence to him and you drew plans to explain the location ... A sketch plan in Weston's position was examined and had your fingerprints on it ...".

48. His Honour, in my view, correctly noted that this offence "strikes at the foundation of our legal system and warrants strong condemnation". He also noted that the relevant maximum penalty prescribed for this offence was at the time 25 years' imprisonment. In the circumstances which I have outlined, I am far from persuaded that the sentence which his Honour imposed on count 4 was so manifestly disparate from the sentence imposed upon the co-offender for that same offence as to warrant interference by this Court. But, as I have said, discrepancy and disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. See per Dawson and Gaudron JJ., Postiglione v R. [1997] HCA 26; (1997) 189 C.L.R. 295 at 301-2.

51. 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.

54. For these reasons, I would reject this ground.

57. Ground 1 asserts that the judge erred in imposing sentences upon the appellant in the mistaken belief that the appellant had served 2 years of the sentence previously imposed for the drug offences, when in fact he had served 2 years and 2 months. Again, in my view, there is no merit in this ground. Not only was the judge acting upon the basis of what he was told by both prosecutor and counsel for the appellant, but the truth is he was not required to descend in this aspect of his sentencing discretion to the extent of mathematical certainty which is implicit in counsel's submission. His Honour was concerned to satisfy himself that the total effective sentence imposed was ultimately consistent with the principles of totality but nevertheless properly reflected the culpability of the appellant. Whether he regarded the time already served under the extant sentences as 2 years or 2.2 years was not critical to his sentencing task. What was important in his Honour's mind was the knowledge that the sentences which he was imposing would run concurrently with the unexpired portion of the sentences imposed by the Court of Appeal for the drug offences; and that the single non-parole period fixed would result in an eligibility for release date some 3 years beyond what it otherwise would have been. I can see no error in the way in which his Honour perceived it and I regard the ground as being misconceived. I reject it.

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.

61. 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.

64. In support of grounds 5, 3(c) and 7, it was asserted that the judge was in error in regarding the appellant's prospects of rehabilitation as being depreciated because he had committed the drug offences as soon as he had been released on bail for these offences. It was submitted that his Honour's sentencing discretion was open to suggestion that he had "double counted" the lack of rehabilitation prospects because, upon the drug offences, the Court of Appeal had increased the sentences imposed because those offences were committed whilst he was on bail for these offences. However, neither the words used by the judge in the exercise of his sentencing discretion nor indeed the sentences imposed, suggest to my mind that he was in error in this respect. The fact that the drug offences were committed whilst the appellant was on bail was part of the material before his Honour and was a matter open to his Honour to be used in the way in which he did. His Honour recognised that the drug offences were committed subsequently to the offences for which he was punishing but, as I see it, he was not precluded from taking those matters before him into account in assessing the weight of counsel's submission that the appellant had good prospects of rehabilitation. These grounds, in my view, must also be rejected.

67. 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.

70. 23 For the reasons which I have stated, I would dismiss the appeal.

75. I agree that the appeal should be dismissed for the reasons given by the President.

80. I also agree for the reasons expressed by the President.

85. The formal order of the Court is that the appeal is dismissed.