Citation: R v Kevin Gall; R v Bruce Gall (No 6) [2012] NSWSC 1432
Court: Supreme Court of New South Wales
Date: 23 November 2012
Judge: Adamson J
Background
Kevin Gall and Bruce Gall were sentenced following convictions and guilty pleas arising from a series of serious offences connected to a violent dispute between Kevin Gall and a man named Neil Green. Kevin Gall and the deceased had been friends since around 2004, socialising and working together through a shared interest in motorcycles. Their relationship deteriorated markedly after a 2008 drug arrest in which Kevin Gall was not charged but the deceased was, and further broke down over the deceased's attempts to retrieve property he said Kevin Gall was holding for him.
On 16 April 2010, the deceased attended the Gall family premises at Wiltona Place. Kevin Gall murdered him there. During the same incident, Kevin Gall also discharged a firearm at the deceased's friend, Michael Fox, with intent to cause him grievous bodily harm. Kevin Gall was convicted of both offences by jury after trial. He had separately pleaded guilty on the first day of trial to possessing prohibited firearms and weapons, and to influencing a witness, Martin Lapich, to give false information to police and destroy his mobile phone.
Bruce Gall, who resided at the same premises, was convicted by jury of being an accessory after the fact to murder. He also pleaded guilty to a separate firearms possession charge and to influencing the same witness to give a false account to police.
Legal Issues
- What were the appropriate sentences for Kevin Gall for murder, discharging a firearm with intent to cause grievous bodily harm, possession of prohibited firearms and weapons, and perverting the course of justice?
- What was the appropriate sentence for Bruce Gall for accessory after the fact to murder, possession of a prohibited firearm, and perverting the course of justice?
- To what extent should sentences be accumulated rather than made concurrent, given the discrete criminality of each offence?
- What standard of proof applied to facts taken into account at sentencing, particularly facts adverse to the offenders?
Decision
On the evidentiary standard at sentencing, Adamson J applied the principle from R v Olbrich that facts adverse to an offender must be established beyond reasonable doubt, while facts taken into account in the offender's favour need only be proved on the balance of probabilities.
For Kevin Gall, the court treated the murder as the most serious offence. The sentencing remarks reflect the gravity of taking a life and the calculated nature of having loaded, unlawful firearms readily available. The court imposed a 27-year sentence for murder with an 18-year non-parole period. The remaining sentences were structured to commence at staggered intervals, reflecting the principle that wholly concurrent sentences would fail to account for the discrete criminality of each offence.
For Bruce Gall, the court sentenced him for accessory after the fact to murder, perverting the course of justice, and possessing a prohibited firearm. The sentences were similarly structured to reflect the separate nature of each offending.
The court acknowledged, consistent with R v Previtera, that no sentence could adequately reflect the loss suffered by the deceased's family and friends. Adamson J paused before imposing sentence to express personal sympathies to those who had been close to the deceased.
Orders Made
Kevin Gall:
- Perverting the course of justice: fixed term of 1 year and 10 months, commencing 16 November 2010
- Possession of prohibited firearms and weapons: 3 years and 7 months with a non-parole period of 2 years and 8 months, commencing 16 November 2011
- Discharging a firearm with intent to cause grievous bodily harm: fixed term of 8 years, commencing 16 November 2013
- Murder: 27 years with a non-parole period of 18 years, commencing 16 November 2016
- Earliest parole eligibility: 15 November 2034
Bruce Gall:
- Accessory after the fact to murder: fixed term of 2 years, commencing 16 January 2012
- Perverting the course of justice: fixed term of 16 months, commencing 16 September 2013
- Possessing a prohibited firearm: 3 years with a non-parole period of 18 months, commencing 16 January 2015
- Earliest parole eligibility: 15 July 2016
Key Takeaways
- The Supreme Court applied the Olbrich standard at sentencing: facts adverse to the offender must be proved beyond reasonable doubt, while mitigating facts need only be established on the balance of probabilities.
- Wholly concurrent sentences were rejected where multiple offences each reflected discrete criminality. The court required a substantial degree of accumulation to properly reflect the full extent of each offender's conduct.
- Being an accessory after the fact to murder is treated as a serious offence in its own right, attracting a custodial sentence separate from and in addition to any other offending.
- Influencing a witness to give false information to police and to destroy evidence engages the offence of perverting the course of justice and warrants a distinct sentence, not merely a concurrent term subsumed into other penalties.
- Possession of loaded, unlawful firearms kept ready for use was treated as an aggravating feature of the overall criminality, reflecting the deliberate choice to arm oneself outside lawful channels.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Previtera (1997) 94 A Crim R 76
- R v Elfar [2003] NSWCCA 358
- R v Hawken (1986) 27 A Crim R 32
- R v Rodriguez [2012] NSWSC 663
- R v Shankley [2003] NSWCCA 253
- Ramsay v Watson [1961] HCA 65; 108 CLR 642