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Court of Criminal Appeal 16 May 2006

Galaxidis v Regina

[2006] NSWCCA 154

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCE GUILTY PLEAS SUPPLY PROHIBITED DRUG WHETHER SENTENCE WAS EXCESSIVE

Citation: Galaxidis v Regina [2006] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 16 May 2006
Judge(s): Hodgson JA, James J, Hoeben J

Background

The appellant pleaded guilty in the District Court to a large number of offences across three separate indictments. These included eighteen counts of dishonestly obtaining a financial advantage by deception (among them significant mortgage fraud and credit card fraud), one count of supplying methylamphetamine (20.3 grams), and a further deception charge connected to the fabricated sale of a Porsche motor vehicle.

The offences involved a co-offender named Kilpatrick. The fraud offences included procuring large bank loans through false documents, using stolen credit card details to order goods, and manufacturing fictitious sale documents to extract nearly $200,000 from a finance company. The drug supply offence arose from a sale to an undercover police operative, with intercepted phone calls indicating this was not an isolated transaction.

Judge Phelan of the District Court sentenced the appellant to a total head sentence of six years, with a combined fixed term or non-parole period of four and a half years. The appellant applied to the Court of Criminal Appeal for leave to appeal, contending the sentence was excessive.

  • Whether the total sentence of six years (with four and a half years' non-parole period or fixed terms) was manifestly excessive given the appellant's guilty pleas and other subjective factors.
  • Whether the sentencing judge erred in the treatment of a "Form 1" (a list of additional charges taken into account on sentencing under the Crimes (Sentencing Procedure) Act), including which principal offence the additional charges were taken into account in relation to.
  • Whether the discount applied for the appellant's guilty pleas was appropriate, having regard to the timing of those pleas.
  • Whether there was an unjustifiable disparity between the sentences imposed on the appellant and those imposed on his co-offender Kilpatrick.

Decision

James J (with Hodgson JA and Hoeben J agreeing) examined the Form 1 issue in some detail. The sentencing judge had certified that the thirty-two additional charges on the Form 1 were taken into account in dealing with the drug supply offence, but his remarks on sentence referred to the additional charges in a passage dealing with the credit card and deception offences. Despite this inconsistency, James J concluded the matter could be resolved: either the Form 1 was properly taken into account on the drug supply count, or any technical error was immaterial given the overall sentencing exercise.

On the question of guilty plea discounts, James J acknowledged the principles from R v Thomson; R v Houlton requiring utilitarian discounts for guilty pleas. The appellant had pleaded guilty to the first two indictments at an early stage but did not plead to the Porsche charge until the day set for trial. James J found the sentencing judge had given appropriate weight to these differences in timing and that no error in this respect was demonstrated.

The disparity argument was rejected. Kilpatrick had no corresponding drug offence, had pleaded guilty earlier than the appellant on several charges, and had received sentences that James J described as very lenient. The Court found that any comparison between the two sets of sentences did not produce a justifiable sense of grievance for the appellant. Even if some element of disparity could be identified, the Court noted its discretion to decline to intervene, and in circumstances where the appellant's sentences were themselves lenient, intervention was not warranted.

The overall sentence was not found to be manifestly excessive. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence appeal will not succeed on disparity grounds merely because a co-offender received more lenient sentences, particularly where the co-offender faced different or fewer charges and had pleaded guilty earlier.
  • Under the Crimes (Sentencing Procedure) Act, when a Form 1 is used, the sentencing court must identify a principal offence to which the additional charges are taken into account; inconsistency between the certificate and the remarks on sentence can create a technical complication, though it will not necessarily result in appellate intervention where the overall sentencing outcome is sound.
  • Guilty plea discounts under R v Thomson; R v Houlton are sensitive to the timing of the plea: an early plea attracts greater leniency than one entered on the day of trial.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that its jurisdiction to intervene on parity grounds is discretionary, and that discretion may be exercised against intervention where the sentence under challenge is itself lenient.
  • Multiple indictments involving co-offenders, staggered plea timings, and Form 1 additional charges each require careful individual treatment in the sentencing exercise, as errors in any one area may affect the coherence of the overall structure.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 178BA
- Crimes (Sentencing Procedure) Act (NSW), Div 3, Pt 3 (ss 32-39); s 33(2)
- Drug Misuse and Trafficking Act (NSW), s 25(1)

Cases:
- Johnson v The Queen (2004) 78 ALJR 616
- Lowe v The Queen (1984) 154 CLR 606
- Mill v The Queen (1988) 166 CLR 59
- 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