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Court of Criminal Appeal 22 December 2005

R v Gagalowicz

[2005] NSWCCA 452

HomicideDrugs

Citation: R v Gagalowicz [2005] NSWCCA 452
Court: NSW Court of Criminal Appeal
Date: 22 December 2005
Judge(s): Studdert J, Whealy J, Howie J

Background

The respondent, a young man aged nearly nineteen at the time of the offence, was convicted of manslaughter following a jury trial in which the Crown had charged him with murder. The killing occurred in February 2003 at a shared residential premises in Bulli. The deceased was a drug supplier who attended the premises after being falsely told the respondent had money to pay for drugs.

A violent altercation arose when the deceased discovered there was no payment available. The respondent struck the deceased multiple times with a baseball bat, causing massive and fatal head injuries. The sentencing judge found the attack was carried out with intent to kill, but that the respondent was at the time suffering from a psychotic state that substantially impaired his capacity to understand events, exercise judgment, and control his behaviour. That finding brought the offence within the partial defence of substantial impairment under section 23A of the Crimes Act, reducing what would otherwise have been murder to manslaughter.

After killing the deceased, the respondent dismembered the body in the bathroom, attempted to arrange its removal, and ultimately buried the remains in the backyard in a shallow grave. The body was discovered by police approximately two months later when they executed a search warrant at the premises.

  • Whether the sentencing judge erred by treating the respondent's drug use as a mitigating factor when it was properly an aggravating circumstance or at most a neutral one
  • Whether the total sentence of eight years (four years non-parole period, four years balance of term) was manifestly inadequate given the objective gravity of the offending
  • Whether the Court of Criminal Appeal should intervene and re-sentence the respondent, and if so, to what term

Decision

The Court found that the sentencing judge had made an error of principle by treating the respondent's drug use as a mitigating factor. Drug use that contributes to the commission of a serious offence is not properly characterised as mitigation. That error affected the calculation of the total sentence, including the discount the judge applied for subjective matters.

The Court concluded that the original total sentence of eight years did not adequately reflect the objective gravity of the offence. The killing was described as extremely serious: the deceased was subjected to a savage and sustained attack with a baseball bat, carried out with intent to kill, in circumstances where the respondent sought to obtain drugs without payment. The subsequent dismemberment and concealment of the body compounded the overall seriousness of the conduct.

While the Court accepted the significance of the respondent's psychotic state and his other subjective circumstances, including his youth and troubled background, those factors did not justify the degree of reduction that had been applied. The Court held the sentence was manifestly inadequate and that intervention was warranted.

In re-sentencing, the Court applied the principle of restraint that governs re-sentencing following a successful Crown appeal. It preserved the special circumstances finding made by Adams J (which justified a longer-than-usual balance of term relative to the non-parole period) and increased the non-parole period from four to six years, while retaining the four-year balance of term, producing a total sentence of ten years.

Orders Made

  • The appeal was allowed.
  • The sentence imposed by Adams J on 8 July 2005 was quashed.
  • In substitution, the respondent was sentenced to a non-parole period of six years commencing 19 April 2003 and expiring 18 April 2009, and a balance of term of four years commencing 19 April 2009 and expiring 18 April 2013.
  • The respondent became eligible for release on parole on 18 April 2009.

Key Takeaways

  • Drug use that contributes to the commission of a serious offence is not a mitigating factor in sentencing; treating it as such constitutes an error of principle.
  • A finding of substantial impairment by abnormality of mind under section 23A of the Crimes Act (reducing murder to manslaughter) is a significant mitigating consideration, but it does not diminish the objective gravity of the underlying conduct, particularly where the attack was found to have been carried out with intent to kill.
  • Manifestly inadequate sentences arising from errors of principle will be set aside on Crown appeal, even where the respondent's subjective circumstances are weighty.
  • In re-sentencing following a successful Crown appeal, the Court of Criminal Appeal confirmed that a degree of restraint is to be exercised, meaning the re-sentence need not represent the maximum that could have been imposed at first instance.
  • Where a sentencing judge applies a percentage discount for subjective factors, an error in the base from which that discount is calculated will infect the entire sentence, providing a further ground for appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 23A (substantial impairment by abnormality of mind), 24 (maximum penalty for manslaughter: 25 years imprisonment)
- Mental Health Act (NSW)

Cases:
- Markarian v R (2005) 215 ALR 213
- Pearce v R (1998) 194 CLR 610
- R v Blacklidge (unreported, NSWCCA, 12 December 1995)
- R v Cooper (unreported, NSWCCA, 24 February 1998)
- R v Forbes [2005] NSWCCA 377
- R v Henry (1999) 46 NSWLR 346
- R v MD, BM, NA, JT [2005] NSWCCA 342