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.