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Court of Criminal Appeal 8 May 2015

Galvin v R

[2015] NSWCCA 88

DrugsFirearms & weapons
CRIMINAL LAW APPEAL APPEAL AGAINST SEVERITY OF SENTENCE ONGOING SUPPLY OF AMPHETAMINE OFFENDER LEAVE TO APPEAL GRANTED

Citation: Galvin v R [2015] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 8 May 2015
Judge(s): Leeming JA, Johnson J, Schmidt J (Schmidt J delivering the leading judgment)

Background

The appellant was sentenced in the District Court in March 2014 following guilty pleas to two drug offences under the Drug Misuse and Trafficking Act 1985 (NSW) and one weapons offence under the Weapons Prohibition Act 1988 (NSW). The drug offences concerned ongoing supply of amphetamine in October 2012 in the Lithgow area, and the weapons offence related to possession of a taser found at his home in January 2013. He received a 25% discount for his guilty pleas, resulting in an aggregate sentence of 5 years and 7 months with a non-parole period of 4 years and 2 months.

The appellant was sentenced alongside his co-offender and cousin, who was the elder of the two and had taken over the drug supply operation after the appellant stepped back in late 2012. Both men had participated in a series of drug transactions monitored by NSW police during a strike force investigation, with legally intercepted phone calls forming part of the evidence.

The appellant sought leave to appeal on the basis that the sentence was either wrongly calibrated against his co-offender's or was otherwise manifestly excessive. He also sought to add a third ground challenging the standard of proof applied by the sentencing judge when assessing his remorse.

  • Whether the sentencing judge erred in finding the appellant's objective criminality was approximately equivalent to that of his co-offender, given differences in the total drug quantities involved
  • Whether the aggregate sentence was manifestly excessive
  • Whether the sentencing judge applied the wrong standard of proof (using "comfortable satisfaction" rather than the balance of probabilities) when assessing the appellant's lack of remorse

Decision

Ground 1: Objective criminality compared with the co-offender

The appellant argued that the total drug quantities in his co-offender's charges exceeded his own, and that the structure of the charges meant his co-offender's criminality was not adequately captured by the sentencing framework applied. The Court of Criminal Appeal rejected this submission. The sentencing judge had found that the two offenders were, as the Crown put it, "largely in it together." The appellant had supplied drugs in October 2012 before his cousin took over, and both men had driven for each other during various transactions. The factual picture supported the finding of approximate equivalence in objective criminality, even accounting for the differences in total drug quantities.

Ground 2: Manifest excess

The Court granted leave to appeal but found no basis for concluding the sentence was manifestly excessive. The individual sentences before discount, and the aggregate after discount, fell within the range that could properly be imposed on the facts. No error in the exercise of the sentencing discretion was identified.

Ground 3: Standard of proof for remorse

Leave was granted to argue this ground, though it was opposed by the Crown. The appellant contended the sentencing judge had applied the heightened Briginshaw standard (used for serious and adverse findings) rather than the ordinary balance of probabilities when assessing whether remorse had been established as a mitigating factor. The Court found this submission did not accord with a fair reading of the sentencing remarks as a whole. The sentencing judge had in fact referred to the balance of probabilities when assessing other contested matters, and there was no demonstrated error in principle or result in the approach taken to remorse. This ground was also dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a finding of approximate equivalence in objective criminality between co-offenders can be sustained even where total drug quantities differ, provided the broader factual context supports it.
  • A comparison between co-offenders' sentences requires attention to the whole of the conduct and circumstances, not only the quantum of drugs attributable to the individual charges each faced.
  • Where a sentencing judge is asked to find a mitigating circumstance such as remorse, the onus rests on the offender to establish that matter, and the applicable standard is the balance of probabilities.
  • No error arises from applying a heightened standard of scrutiny under Briginshaw v Briginshaw to adverse factual findings; that standard is not, however, reserved exclusively for adverse findings or findings made against an offender's interest, and its application to mitigating matters must be assessed in context.
  • Sentencing remarks must be read as a whole: an isolated reference to a particular standard does not establish error if the overall approach is consistent with the correct legal framework.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Weapons Prohibition Act 1988 (NSW), s 7(1)
- Firearms Act 1996 (NSW), ss 7(1), 7A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297
- Delaney v R; R v Delaney [2013] NSWCCA 150; (2013) 230 A Crim R 581
- Subramaniam v R [2013] NSWCCA 159
- R v Rae [2013] NSWCCA 9
- Sinkovich v The Queen [2011] NSWCCA 90
- Furia v R [2010] NSWCCA 326
- R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185
- R v MacDonnell [2002] NSWCCA 34
- R v Giang [2005] NSWCCA 387
- R v Hoon; R v Pouoa [2000] NSWCCA 137