R v Gagalowicz [2005] NSWCCA 452 | Case summary

1 THE COURT: The Director of Public Prosecutions appeals against the sentence imposed by Adams J upon the respondent, Matthew Gagalowicz, on 8 July 2005. On that date his Honour sentenced the applicant for the crime of manslaughter to a non parole period of four years with a balance of term of four years. 2 The maximum penalty provided for the offence of manslaughter is imprisonment for twenty-five years: s 24 of the Crimes Act. 3 The notice of appeal was promptly given on 25 July 2005. 4 The respondent earlier stood trial upon an indictment charging him with murder. When the indictment was presented, the appellant offered a plea of guilty to manslaughter. The Crown declined to accept that plea. Nevertheless, the jury found the respondent guilty of manslaughter, and the respondent was sentenced accordingly. 5 The crime was committed on 16 February 2003 in premises at Farrell Road, Bulli. The respondent was living in those premises at that time with his girlfriend, a male friend and that person's girlfriend. The group had moved into the premises about October 2002. All four members of that group had been drug users for some time, although they were drug free when they moved into the house. His Honour found that unfortunately that situation lasted for no more than a week or so and the respondent and the others then started to take drugs again. The respondent was using amphetamines and the deceased supplied drugs at the premises. The drugs were paid for with money received by the occupants by way of Centrelink allowance, and it was the respondent who usually paid the money over to the deceased when the drugs were delivered. 6 On the day the crime was committed the respondent telephoned the deceased, asking him to call to supply drugs. The respondent falsely told the deceased that he had the money to pay for them. When, following his arrival at the premises, the deceased found that the respondent wanted credit, he became angry. In the remarks on sentence, the judge recorded (p 4): "The [respondent] said he felt unwell, frustrated and 'the blood pounding in my head'. As he argued with the deceased, he picked up a baseball bat and told him to leave the drugs and go. He said that the deceased suddenly lunged forward and tried to grab the baseball bat, there was a struggle and during the course of this the [respondent] hit the deceased on the head. He only recalled two blows. He next recalls standing in the kitchen staring down at the deceased's body." 7 His Honour found that it was clear that the cause of death was multiple blows to the head of the deceased. Dr Duflou, who conducted the post mortem examination, found twelve injuries to the scalp on external examination of the head and face consistent with the infliction of twelve blows, although there may have been more or less than that. There was very extensive fracturing of the head, not only involving the skull but also facial fractures. There was a massive concave deformation on the left side of the skull. 8 Having killed the deceased, the respondent alerted his male housemate to what had happened. They immediately injected some of the deceased's drugs, then moved his body from the kitchen to the bathroom. The respondent and his male housemate, David, gave different accounts as to what occurred after the body was taken to the bathroom. The judge considered the evidence of the respondent was to be preferred (ROS [17]). According to the respondent, there was a discussion as to how the body was to be disposed of and the two men equipped themselves with knives and gloves. The respondent said that David made the first cut to the leg but was unable to continue, saying that he felt ill. The respondent then carried on with the dismemberment of the body of the deceased. When this had been done, he walked out of the bathroom and told his girlfriend and David to go down to the beach. Whilst they were out, the respondent cleaned up the kitchen and the bathroom and put the body parts in a suitcase. He spread kitty litter over the blood on the floor in the kitchen. 9 Efforts were made to borrow a car to remove the body from the premises but those efforts were unsuccessful and the respondent decided to bury the body in the backyard, which he did a day or so later. The respondent purchased top soil, lime, a trowel and seeds. He dug what was a shallow grave. He placed the deceased's remains in it. He told one of his companions that he let off a cockroach bomb in the laundry to mask the smell there. 10 The police executed a search warrant at the premises on 16 April 2003 and dug up the shallow grave. There the deceased's torso, arms and legs were found wrapped in plastic garbage bags and a doona inside a suitcase. That suitcase also contained the deceased's wallet and identity card. Next to the suitcase was the deceased's head, wrapped in a garbage bag and contained in a pillow case. The suitcase and the head had been buried under a board which, in turn, had been covered with dirt and rubbish. 11 We turn from this description of events to the finding of the jury and its significance. 12 The Crown case was left to the jury in such a way as left it open to the jury to find manslaughter by unlawful and dangerous act or manslaughter by reason of the operation of s 23A of the Crimes Act. The finding of the jury did not establish which path led them to the verdict reached. In the circumstances, it was for his Honour to make findings consistent with the verdict of the jury. His Honour found beyond reasonable doubt that the respondent attacked the deceased intending to kill him. There has been no challenge to that finding, which the evidence firmly supported. His Honour said this (ROS 11-12 [27]): "Whilst I think that the offender's reasoning was very substantially distorted by his mental condition and that it was this condition which induced his loss of self-control, he was not acting as an automaton; to use the vernacular, although his intention to kill was 'mad', it was nevertheless present. I reject the reasonable possibility that the offender intended only to cause grievous bodily harm: the violence is simply too extensive for this possibility to be reasonably open. At the same time, had it not been for the psychosis which he was suffering at the time, I do not believe the offender would have committed this dreadful crime." 13 His Honour's finding as to the respondent's mental state was expressed in these terms (at [22]): "I do not intend to rehearse the medical evidence in the case. It is sufficient for present purposes to say that I have no doubt that the offender, at the time he killed the deceased, was suffering from a psychotic state that substantially impaired his capacity to understand events, his judgment about the rightness or wrongness of what he was doing and his ability to control himself. I also consider that this impairment arose from an abnormality of mind caused by an underlying condition and was so substantial as to warrant liability for murder being reduced to manslaughter as provided by s 23A of the Crimes Act 1900." 14 At the time of the commission of this offence, the respondent was nearly nineteen years old, having been born on 26 February 1984. After what the judge described as "a happy and secure childhood" growing up in rural Victoria, the respondent's family moved to Canberra when he was eight years of age, and after that there were a number of misfortunes. His closest friend was accidentally killed after falling from a roof top, and at the age of twelve the respondent was diagnosed with insulin dependent diabetes which required injections four times per day. His grandmother died from a malignant brain tumour and his mother was stricken with breast cancer. 15 The respondent had a long history of drug abuse. Whilst he was at school his friends introduced him to marijuana. At the age of sixteen or seventeen, he commenced to use amphetamines. In Year 11 he was introduced to ecstasy and cocaine as well, but his evidence was that amphetamines were his "drug of choice". 16 After leaving school in April or May 2001, the respondent left home and lived with friends who were drug users. He worked in a number of positions but the judge found that his ability to maintain employment was adversely affected by his drug addiction, and that the amphetamines brought about the effect of paranoid and delusional experiences. 17 On 25 July 2002 the respondent attended Canberra Hospital with self administered minor lacerations to his arms and neck. Then, on 11 August 2002 the respondent was brought in to Canberra Hospital for assessment by the mental health team, and on 21 August 2002 an order was made for his involuntary detention pursuant to the Mental Health Act. That order was made on evidence from his general practitioner and his parents that he was suffering from a severe mental disturbance with auditory hallucinations. The judge found that "the conclusion that the offender suffered from a drug induced psychosis in August 2002 is inevitable" (ROS 15 [37]). His Honour proceeded: "I do not doubt that this condition returned when he recommenced his use of amphetamines either later in 2002 or early 2003 and that he was suffering from the psychosis which then re-emerged at the time of the killing, quite possibly complicated by his badly controlled diabetes." 18 After leaving hospital, the respondent returned to live with his parents for a while and then went into a detoxification unit, and then on to the rehabilitation centre near Berkeley. He left the course he was doing at the centre one week or more before it was due to finish, when he broke the curfew imposed. He returned briefly to his parents before moving to Farrell Road, Bulli. 19 The respondent has no prior criminal history that is relevant for present purposes. The judge took account of the respondent's youth and he gave him the benefit of a discount of the order of twenty percent because of the plea proffered by him, even though it did not in the circumstances avoid a trial. 20 After being taken into custody on 19 April 2003, the respondent participated in drug and alcohol programmes and, according to the case file, was a well motivated participant in those programmes. His compromised mental state has progressively improved, and the judge accepted Dr Westmore's view that the respondent's longer term prognosis will be very good provided he remains completely free of illicit drugs. 21 The judge noted that the respondent has expressed remorse for his action and has acknowledged the pain and grief he has caused the victim's family. Those sentiments the judge accepted as genuine.

(ii) That his Honour erred in the application of legal principle concerning the use of prohibited drugs 28 This ground focuses on a number of passages in the remarks on sentence: [36] It is obvious from this history that the offender's commencement of and his continuous amphetamine use was significantly instigated when he was very young indeed by a number of major crises in his life. As he said, the drugs provided a way by which he could feel both better about himself and secure and hopeful about the future. Of course, such drug-induced feelings are a delusion, a delusion which becomes distressingly obvious as soon as the effect of the drug wears off. He did not commence drug taking as a mature person, nor even as a young person approaching maturity. He was a child, a child who became addicted to a substance that enabled him, for a short time, to think that his life was or could be worthwhile. His ability to cope with the stresses in his life and his response to those stresses must be viewed in that context. To treat him as a recreational drug user would be not merely to be quite inaccurate but grossly unjust as well. 29 Earlier, after referring to traumatic events in the respondent's life, including the diagnosis that he was suffering from diabetes, the death of his grandmother from a brain tumour and the diagnosis of his mother's breast cancer, the judge went on to record the respondent's use of marijuana, to which he "was introduced by school friends. Then at the age of fifteen or sixteen he began to use amphetamines. Then in year 11 he was introduced to ecstasy and cocaine." [31], [32] 30 Then, at [47], his Honour said: "In the present case, I am much influenced by the consideration that the offender commenced taking amphetamines at a very young age at a time when the invitation and opportunity to do so coincided with a series of grave crises in his personal life and when his personal resources, I accept, were insufficient to provide the means of resistance. As I have said, the offender is very far removed from the person of mature years who takes drugs as a means of recreation. He was a child trying to cope with overwhelming problems. He became addicted and, like many, had tried but failed to overcome his addiction." 31 The Crown has submitted that it is apparent from the sentencing remarks that the judge treated the respondent's addiction as a mitigating factor and that this caused his sentencing discretion to miscarry. Reference was made to the remarks of Spiegelman CJ in R v Henry (1999) 46 NSWLR 346 at 385 [196]-[201]: "[196] It was submitted that the degree of moral culpability of a particular offender is diminished by addiction. Evidence was put before the Court that there is, at least in some cases, a genetic predisposition to addiction and that addiction generally is not simply a state of mind but has a neurobiological or physiological base. It was put that an addict's decision to perform a criminal act was not 'a completely free choice'. [197] In my opinion drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made. [198] First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences. [199] Secondly, the submissions in this Court were in error in identifying the relevant conduct as the craving associated with withdrawal. The material presented to the Court did not suggest that the choice faced by addicts was between this negative feeling and the need for money to allay it. Rather the choice may often be the desire for the positive feeling said to be associated with a drug induced euphoria. The desire to bring about that state of 'well being' is, relevantly, a moral choice. [200] Thirdly, nothing in either the process of addiction or its neurobiological and physiological basis, leads ineluctably to the commission of crime, let alone the commission of crimes of violence against persons, such as armed robbery. Not all persons who suffer from addiction behave in this way. Those that do so, make a choice. [201] Finally, individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice." 32 It was submitted on the respondent's behalf that the judge did not treat the respondent's addiction per se as a mitigating factor, but distinguished the circumstances of his decline into drug abuse from the "recreational and mature" drug user who acted very much as a matter of choice. It was submitted that it was the latter type of user to whom the remarks in Henry were directed. 33 We have set out briefly the respondent's involvement with drugs earlier in this judgment. There is nothing in his history that in our view gives rise to any mitigation of the respondent's culpability due to his drug use at the time of the killing. The history does not suggest that the respondent became involved with amphetamine other than as a result of a choice he made albeit when he was a teenager. The history is not remarkably different to that of many drug users in the community. 34 Further, it is a matter of significance that the respondent did not take full advantage of the opportunity to address his addiction when he was discharged from the drug rehabilitation centre near Berkeley in the latter half of 2002. The respondent gave evidence as to the circumstances in which he left the centre (at T 292, 7 April 2005): "Q. Did you get back on to drugs while you were at the rehabilitation centre or did you stay clean? A. I stayed clean while I was at the centre. Q. You didn't however finish the course is that right? A. No I didn't, no. Q. How close to the end did you get? A. I believe it was about a week, week and a half. Q. Why did you go a week before the end of the course? A. There was a point system at the centre and you would accrue points for things like for example not doing chores, you would get, assigned a chore, you got a job would be for that week to mop the floor or clean the bathroom or something. On several occasions I neglected those chores and I was put on restricted, on restrictions where I couldn't leave the centre to go down the shops or anything like that and one day I wasn't in a great mood and I just decided you know 'Bugger it, I am going to go down to the shops' - Q. You broke the curfew? A. I broke the curfew, I broke the restrictions, I was not meant to leave the centre and I did and at that point they said 'You have broken the rules, I've got to let you go'." 35 After he left the centre he returned to his family home in Kiama for Christmas but started to use drugs at that time. By late January when he was living in the house at Bulli with persons he had met at the drug rehabilitation centre he had recommenced his use of "ice", which he understood to be a more pure form of amphetamine. This is notwithstanding that the respondent accepted that when he was released from the psychiatric hospital in August 2002 he had insight into the effect of amphetamine use upon him. 36 We accept that his Honour was entitled to find that, notwithstanding the respondent was aware that his use of amphetamine could result in psychosis, that he did not appreciate that it might lead to an act of violence to any person. But such a finding was not mitigatory of the respondent's culpability for the killing. Had the respondent a realisation that one of the effects of his use of drugs might have been that he would act violently toward some other person, this would have been a matter of serious aggravation. 37 We are left in no doubt from a reading of the sentencing remarks as a whole and the passage set out in para 30 in particular that his Honour treated the respondent's use of drugs as a mitigating factor. The only purpose in his Honour contrasting the respondent's drug history with that of "a person of mature years who takes drugs as a means of recreation" was to indicate that the respondent's culpability was less than it would have been had he been such a person. Yet it would not have been an aggravating feature of the offending if the respondent had been a mature recreational drug user. 38 In any event whatever significance there might have been in the fact that the respondent became a user of amphetamine at the age of 16 or 17 years was lost when he voluntarily left the rehabilitation centre and recommenced to use amphetamine soon after. The respondent made a clear choice to persist with his addiction; see Henry at [201] above. This ground has been made out and his Honour's sentencing discretion miscarried. 39 Nevertheless we address the remaining grounds. 40 We turn to ground (iii).

R v Gagalowicz

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