R v Galas & Mikhael [2008] VSC 513

Supreme Court of Victoria|2008-11-25|Before: LASRY J

CRIMINAL LAW - Sentence - Plea of guilty - Statutory murder -- Crimes Act 1958 (Vic) s 3A - Manslaughter - Retrial - Totality - Sentencing for multiple offences fragmented - Delay in the process - Rehabilitation - Remorse.

1 Craig Taras Galas, you have pleaded guilty to one count of statutory murder. Steven Mikhael, you have pleaded guilty to one count of manslaughter. The offences for which I must sentence both of you arise from the killing of Robert D'Amico more than 5 years ago on 2 September 2003 at Tullamarine.

2 The maximum penalty for the offence of statutory murder is life imprisonment and the maximum penalty for the offence of manslaughter is 20 years' imprisonment.

3 In the days prior to 2 September 2003 when you committed these offences, you became aware of a crop of cannabis plants being grown at the home of the deceased Robert D'Amico at 7 Athena Close, Tullamarine. There was also the possibility of money being on those premises. The two of you and two other accomplices, decided to enter the premises for the purpose of stealing both the marijuana crop and any money that you could find. This plan was put into effect in the early morning of 2 September 2003. The four of you went to the property in which Mr D'Amico died in two separate cars.

4 You, Craig Galas, were armed with a loaded .38 revolver and it was that gun which ultimately caused the death of Robert D'Amico. You, Steven Mikhael, were armed with a retractable baton and the other two participants, Ismail Muhaidat and Monzir Helal, were in possession of other items.

5 You drove to the premises and entered by force with the intention of subduing anyone inside by binding their hands with duct tape and then proceeding to obtain any marijuana and cash that could be found. The house was occupied by the witness David Walker and the deceased Robert D'Amico. When the four of you entered the premises at about 2:00 am, Mr Walker was in the bedroom asleep and the deceased, Mr D'Amico, was in the loungeroom. You both first confronted Mr Walker and you, Steven Mikhael, began to tie Mr Walker's hands together with the duct tape. You also made a demand of him for the cannabis and the money and were told that the walk-in wardrobe in his bedroom would be the place to look. During the course of this process Mr Walker told you, Steven Mikhael, that he was epileptic and that he believed he was about to have an epileptic fit. You are said to have then loosened the tape which had been placed around his wrists. Your counsel, Mr Kaufman, places significant reliance on this particular part of your conduct. I will deal with that later in these reasons.

6 You, Craig Galas, were, in the meantime, in the loungeroom with the deceased Robert D'Amico. You were endeavouring to bind his hands with duct tape at the same time as you were endeavouring to push him to the floor. This was being done whilst you were holding the .38 revolver which was loaded and which discharged causing the death of Mr D'Amico.

7 Once the shot had been fired that killed Mr D'Amico, all four of you left the premises without any of things you went there to obtain and you were no doubt in some state of panic. You left Mr D'Amico dying of the gunshot wound that you, Craig Galas, had inflicted on him. You all then went to the home of one of the other accomplices. You, Craig Galas, threw the firearm away and it has not been recovered. Clothing and disguises were also disposed of.

8 In presenting you, Craig Galas, on the count of statutory murder, the Crown relies on the act of violence being you having a loaded firearm in your possession; using that firearm to intimidate Mr D'Amico; having the firearm in your hand when subduing Mr D'Amico; pushing Mr D'Amico to the floor; tying up Mr D'Amico and holding the gun while doing so with your finger on the trigger.

9 In presenting you, Steven Mikhael, on the count of manslaughter, the Crown relies on the fact that you and Mr Galas were acting in concert having agreed to commit an armed robbery. You were a party to the arrangement and the Crown says you foresaw the possibility that Mr Galas might assault Mr D'Amico and cause him injuries. The act of Mr Galas was unlawful and dangerous and led to Mr D'Amico's death.

10 I have received two victim impact statements, from David and Michael D'Amico, brothers of the deceased. They are brief statements but their brevity does not diminish the loss they have suffered by the death of their brother. Whatever Mr D'Amico was doing in his house, he was, as they point out, invaded in his own house and died through absolutely no fault or action of his. This, I am sure, weighs very heavily on his family. In addition, the process of this case has now gone on for five years and I am sure that they have been required to regularly re-live their loss at various stages of the proceedings. I have taken these statements into account in fixing the sentences that I impose on you.

11 It is obvious that these are very serious offences. A house is invaded by men armed with weapons, and in one case a loaded firearm, and inevitably tragedy occurred. You, Craig Galas, whatever state your mind was in, used a loaded firearm to intimidate the deceased man all in the cause of gaining some drug or money benefit. And you, Steven Mikhael, were part of the plan. Of course it is clear that killing Mr D'Amico was not part of any plan.

12 In my opinion, this was an extremely poorly thought-out attempt to commit the crime of armed robbery. I am inclined to agree with the two psychologists who examined you, Mr Galas, that your irrational state of mind which led you to take a gun with you on this escapade was brought about by the substantial effect of the drugs you were consuming. The fact remains that violence and intimidation was an important element of the conduct of all the offenders including the two of you and it was purely for the purpose of gain - either in taking the marijuana that had been grown in the house or the money that was there; or both.

13 You, Craig Galas, have previous convictions for minor liquor and street offences which occurred between 1990 and 1992. I agree with the submission made on your behalf by Mr Montgomery SC that they have little or no relevance to matters I must consider in imposing sentence on you beyond precluding it being said you are a person without any prior offending.

14 You, Steven Mikhael, have offended regularly. Your prior convictions began in 1999 with offences of dishonesty then assault and resisting police, causing serious injury recklessly for which you received a suspended prison sentence and, finally, damaging property and drug offences in 2003 for which you received a community based order. All of those convictions were imposed by a Magistrates' Court. On only one occasion were you required to serve any time in custody and that was a period of 14 days in 2001. However, you have had further court appearances in 2004 for serious offences including affray which resulted in a total effective 12 month custodial sentence and which explains why there is a discrepancy between the pre-sentence detention which was reckoned for Mr Galas as opposed to you.

Personal Circumstances, Remorse and Rehabilitation

15 Craig Galas, you were born on 17 March 1973 and you are therefore now 35 years of age. When this incident occurred, you were 30 years of age. Your upbringing involved a breakdown in the relationship between your parents. Your mother lives in Darwin and so your contact with her is infrequent and you have no contact with your father.

16 You left school at the age of 16 years after Year 10 and not long after the death of your sister and having attempted to join the Navy you worked for the Ford Motor Company on a production line between 1993 and 1996. A relationship in which you were involved produced a daughter with whom you now have no contact. You continued to hold worthwhile employment but possibly due to the failure of your relationship with the mother of your daughter, you began to take drugs and became dependent on several of them. At the time of the offence, you were living alone and engaging in the excessive use of cannabis and amphetamine. Those drugs became the centre of your life and it was put to Teague J in the plea before him that the firearm you used in these offences was acquired by you to protect your cannabis crop.

17 You have been in custody since the time of your arrest. On 27 June 2005 a report was obtained from Mr Jeffrey Cummins which has also been relied on before me. In Mr Cummins' opinion, you do not have a personality disorder although you have some symptoms of Post Traumatic Stress Disorder which Mr Cummins considered may have some connection with the death of your sister. Mr Cummins diagnosed you as having a clinical dependency on cannabis and amphetamine and an associated mood disorder. He thought you were sorry for what you had done and that you had a reasonable chance of being rehabilitated.

18 A more recent report has been obtained on your behalf from Forensic Psychologist, Elizabeth Warren. Her report is, I think, positive. She regarded you as truthful and outlined the work you have done in custody as well as your intention to work on your release, if necessary in the mines in Western Australia. She assesses you as having a high intellectual ability and that you have adjusted to life in prison which, I suspect she fears, may lead to a degree of institutionalisation.

19 Steven Mikhael, you are now 27 years of age having been born in 1981 in Turkey. You have also been in custody since your arrest in 2003. You were then 22 years of age. Your counsel complained about the delay between offence and trial in the plea made on your behalf in December 2005.

20 You and your family are from Iraq. During the first Gulf War you were 10 years of age and, at the instigation of your father, your family left Iraq going via the Kurdish area in northern Iraq to Turkey as refugees. Your family then went to Greece where, for two years, you and they lived in Athens before the family came to Australia. At the age of 13 you were here in Australia, speaking no English and suffering the consequences of that during your secondary education. However, your family has established itself and commenced a building business. Your family attended court on the hearing of the plea made on your behalf and have clearly demonstrated their support for you and their willingness to continue that support well into the future. They have apparently also supported you during the previous proceedings.

21 Like Mr Galas, you apparently have had a drug problem. You have also endeavoured to improve yourself whilst in custody and I have been given certificates of competency from the Kangan TAFE concerning cleaning and kitchen operations. When you were before Teague J in December 2005, your counsel produced a report from Mr Bernard Healey who reviewed your history and noted that you are of average intelligence. He described your main health problems as being linked to drug abuse - in particular cannabis, cocaine and amphetamine. Importantly, Mr Healey also referred to your revised attitude to life which I hope will by now involve a determination by you to avoid drugs; knowing, as you do, the consequences that flow from them.

22 I also heard evidence from the Rev. Korkis Toma who is a priest of the Holy Apostolic Catholic Assyrian Church of the East. He has apparently visited you in gaol and has been given assurances by you that on your release your life will centre on your family and work.

23 So far as remorse is concerned, Craig Galas you expressed your remorse for what occurred both to Mr Cummins in 2005 and to Ms Warren in 2008. This, you suggested, was a tragedy and you were right about that. Bearing in mind the circumstances surrounding what occurred and your subsequent response to them, I accept that you are remorseful for your actions. You, Steven Mikhael, have expressed your remorse for what occurred by your candour in the record of interview and a willingness to accept responsibility for your participation. Mr Kaufman referred in particular to one answer you gave in the record of interview at question 453 although on its own I do not find that particularly convincing.

24 Some emphasis was placed on the fact that when the witness David Walker told you of his epileptic condition when you were restraining him and that he was about to have a fit, you loosened the binding. Mr Kaufman described that action on your part as "overwhelming". I think that overstates it - you did not withdraw from the criminal enterprise - but nonetheless doing as you did stands to some extent to your credit. It may show that underneath it all you do not have the callousness required to be a criminal. I hope that is right. However I am only sentencing you for your complicity in the death of Mr D'Amico.

25 The rehabilitation of both of you seems to have progressed during the time you have been in custody. Justice Teague assessed both of your prospects of rehabilitation as fair. In your case, Craig Galas, I suspect, given the report of Ms Elizabeth Warren, that your prospects might be more optimistic than that. So far as you are concerned, Steven Mikhael, given the family support that you have you also may have a better than fair prospect of rehabilitating yourself. Whilst there was some issue about your rehabilitation in 2005, no issue about your prospects have been raised by the Crown before me.

History of the Proceedings, Delay and Sentencing Consequences

26 There is no question but that the history of this matter has a particular relevance to the sentence I impose on you. As I have said, the offences were committed by you on 2 September 2003. On 23 September 2003, you, Craig Galas, had been asked to account for your whereabouts in the early morning of 2 September 2003 and on that date you made a false statement to police claiming that at the time you were home alone. You were arrested almost two months later on 12 November 2003 and after being confronted with the evidence which the police had accumulated as the result of their investigation you admitted your involvement.

27 You, Steven Mikhael, were interviewed on 19 November 2003. You also admitted your involvement in the offences. You have asserted, and the Crown appears to accept, that when you participated in these offences you were unaware of what your co-accused, Craig Galas, had with him when the offences were committed; in particular you were unaware that he was in possession of a loaded .38 revolver.

28 After a committal in August 2004, you both stood trial in this Court in May 2005 before Teague J. You, Craig Galas, were found guilty by a jury of one count of murder at common law, one count of aggravated burglary and one count of attempted armed robbery. In addition, you pleaded guilty to one count of cultivation of a commercial quantity of cannabis and one count of theft of electricity.

29 You, Steven Mikhael, were found guilty by a jury of one count of manslaughter, one count of aggravated burglary and one count of attempted armed robbery. In addition, you also pleaded guilty to one count of cultivation of cannabis.

30 You were not sentenced until 1 May 2006. Justice Teague, sentencing both of you, directed that the sentence on the offence of attempted armed robbery be served concurrently with the sentences on the offences of murder and manslaughter respectively. The total effective sentence imposed on you Mr Galas was 21 years and 7 months' imprisonment with a minimum term to be served of 16 years before being eligible for parole. The total effective sentence imposed on you Mr Mikhael was 9 years' imprisonment with a minimum term to be served of 6 years before being eligible for parole. That was more than two years ago.

31 You both appealed against your convictions to the Court of Appeal. The appeal was finally heard on 28 August 2007 and the Court published their judgment on 14 December 2007.

32 The result of the appeal was that the Court upheld the appeal on both the count of murder against you Mr Galas and the count of manslaughter against you Mr Mikhael. The Court directed that you both be re-tried - in the case of Mr Galas on a count of statutory murder and in the case of Mr Mikhael on the count of manslaughter. On being presented for trial before me on those counts you have both pleaded guilty.

33 The effect of the judgment of the Court of Appeal has been that all sentences imposed on both of you other than the offences of statutory murder and manslaughter have been finalised, the Court declining a request that those matters also be remitted for re-trial.

34 In your case, Craig Galas, the Court of Appeal nominated the offence of attempted armed robbery as the base sentence and sentenced you to 3 years' imprisonment. On the next count of aggravated burglary, you were sentenced to 3 years' imprisonment, with 1 year of that sentence to be served concurrently with the sentence on the count of attempted armed robbery. On the count of cultivation of a commercial quantity of narcotic plants, you were sentenced to 3 years' imprisonment with 1 year and 6 months to be served concurrently with the sentence on the count of attempted armed robbery. Finally, on the count of theft of electricity you were sentenced to 3 months' imprisonment with 2 months to be served concurrently with the sentence on the count of attempted armed robbery. The total effective sentence is 6 years and 7 months' imprisonment with a minimum term before eligibility for parole of 4 years and 3 months.

35 These offences occurred on 2 September 2003. You were arrested and went into custody on 12 November 2003 and have remained in custody ever since. As a result your pre-sentence detention was declared at 902 days as at 1 May 2006. On that basis, the Crown submits, and you have not submitted otherwise, that the minimum period of 4 years and 3 months' imprisonment set by the Court of Appeal in December 2007, being the minimum you must serve before you would be eligible for parole on the offences on which that Court sentenced you, expired on 1 February 2008. Thus, you missed the benefit of serving any portion of your sentence for murder concurrently with those other sentences.

36 In your case, Steven Mikhael, the Court of Appeal also nominated the offence of attempted armed robbery as the base sentence and sentenced you to 3 years' imprisonment. On the next count of aggravated burglary, you were sentenced to 3 years' imprisonment with 1 year of that sentence to be served concurrently with the sentence on the count of attempted armed robbery. On the count of cultivation of narcotic plants, you were sentenced to 1 year's imprisonment with 6 months to be served concurrently with the sentence on the count of attempted armed robbery. In your case, therefore, the total effective sentence is 5 years and 6 months' imprisonment with a minimum term before eligibility for parole of 3 years and 9 months.

37 Taking into account the 446 days of pre-sentence detention as declared by Teague J on 1 May 2006, the Crown submits, and you have not submitted otherwise, that the minimum period of 3 years and 9 months' imprisonment set by the Court of Appeal in December 2007, being the minimum you must serve before you would be eligible for parole on the offences on which that Court sentenced you, expired on 19 November 2008. Thus, you also missed the benefit of serving any portion of your sentence for manslaughter concurrently with those other sentences.

38 In addition to these unusual circumstances, on behalf of both of you during the course of the pleas, your counsel relied on the principle of totality which is identified and described by the High Court in Mill v R[1] and subsequent cases. In effect that legal principle requires me, in sentencing you, to consider what the appropriate total sentence should be if I were now sentencing you for all for which you have been imprisoned. I must look at your criminality as a whole. I also must give weight to your rehabilitation during the time you have both been serving the sentences already imposed on you and take into account that you have been left in a state of uncertainty for some time. Finally, I must take account of the delay between the time of offending and your arrests and this final date of sentence on the most serious of the offences you have faced. The High Court indicates that such circumstances might require "a quite undue degree of leniency being extended ...".[2]

39 In addition, as Mr Montgomery SC pointed out during the course of his plea on behalf of you Mr Galas, Kellam JA in the Court of Appeal in this case noted:

Counsel for each applicant has submitted that the fact that each applicant has been convicted of aggravated burglary and attempted armed robbery raises a "sentencing conundrum" and that by reason thereof there should also be an order for a retrial of each of those offences. I do not consider that any such a sentencing conundrum arises. Clearly, if there is a conviction of one or both of the applicants upon their retrials, then the sentencing judge will be required to take the whole of the circumstances into account in sentencing.[3]

40 In fixing the appropriate sentences, I believe I have done that. Pursuant to s 16 of the Sentencing Act 1991 (Vic), the sentence I impose on each of you will be served concurrently with the sentences you are presently serving.

41 It is clear on all the evidence that the circumstances in which you, Craig Galas, murdered Robert D'Amico, were unintentional. You are guilty of murder by virtue of s 3A of the Crimes Act 1958 (Vic). However, you entered the premises in the middle of the night with a loaded firearm in order to commit an armed robbery. There was clearly a risk of death or serious injury.

42 You, Steven Mikhael, were not in the same room when the deceased was shot and you are guilty of manslaughter by virtue of your participation in the joint enterprise. You were unaware that Mr Galas was in possession of a loaded firearm.

43 Each of you has pleaded guilty. Whilst the pleas were not entered at an early stage in the proceedings by any means, offers to plead guilty to manslaughter had been discussed on your behalf Mr Galas. So far as you were concerned, Mr Mikhael, it was said on your behalf, and the Crown accepts, that at the committal you offered to plead guilty to manslaughter. That offer was rejected and you, along with the others, were presented for trial before Teague J on the count of murder.

44 Apart from issues concerning totality and the fragmented manner in which your sentencing has now occurred, I take into account the delay from the time of your apprehension until this date of sentence. It is a period of five years and includes the following. From November 2003 when you were arrested until your committal hearing a period of 9 months passed. Another 9 months passed before the trial was held in this Court. The jury's verdict was delivered on 16 May 2005. You were sentenced for the first time in this Court on 1 May 2006. Your applications for leave to appeal were not heard in the Court of Appeal until 28 August 2007 and judgment was delivered on 14 December 2007. I am now sentencing you almost a year after that.

45 On any view this delay is undue.[4] The delay in this matter has not been explained to me as being attributable to either of you. Since no counsel has explained it in any detail, I can only act on the basis that you are entitled to a discount in relation to this delay of the kind explained by Street CJ in R v Todd,[5] as adopted by the High Court in Mill v R.[6]

46 I consider that it is likely that in the intervening delay the rehabilitation of both of you has progressed and that you have been waiting for your fate to be finalised for some five years since your arrest.

47 Section 5(2) of the Sentencing Act 1991 (Vic) requires that I have regard to current sentencing practices and I have had to some extent. However, the circumstances of this case make it most unusual and there are particular considerations to be taken into account here which have affected the sentence I impose on both of you. I therefore commence this conclusion by doing as the Crown prosecutor suggested and making it clear, as members of the Court of Appeal did in R v Synan,[7] that I do not expect my reasons for sentence to be cited subsequently on the issue of the seriousness of the offence of murder under s 3A of the Crimes Act 1958 (Vic) or the offence of manslaughter. As Winneke P observed in that case, I am endeavouring to impose a sentence that caters for the peculiar circumstances of this case and I do not intend it to be subsequently cited as precedent for this crime.

48 In relation to you, Craig Galas, I have come to the conclusion that the appropriate sentence for me to impose on you for the offence of statutory murder is a sentence of 12 years and 6 months' imprisonment. That sentence is to be served concurrently with the uncompleted sentence imposed on you by the Court of Appeal on 14 December 2007. I fix a minimum term of 8 years from today's date before you are eligible for release on parole. That will mean that the effective sentences you are to serve for the totality of your conduct will be approximately 17 years and 7 months' imprisonment and you will have served a total minimum period of approximately 13 years before being eligible for parole.

49 In relation to you, Steven Mikhael, I have come to the conclusion that the appropriate sentence to impose on you for manslaughter is a sentence of 3 years and 9 months' imprisonment. I direct that that sentence be served concurrently with the uncompleted sentence imposed on you by the Court of Appeal on 14 December 2007. I fix a minimum term of 1 year and 1 month from today's date before you are eligible for release on parole. That will mean that in your case the effective sentences you are to serve for the totality of your conduct will be approximately 7 years and 6 months' imprisonment and you will have served a total minimum period of approximately 4 years and 10 months before being eligible for parole.

50 I have taken into account the fact that each of you have pleaded guilty. For the purpose of s 6AAA of the Sentencing Act 1991 (Vic), I indicate that but for your pleas I would have sentenced you, Craig Galas, to 14 years and 6 months' imprisonment and ordered that you serve 10 years of that sentence before being eligible for parole. In your case, Steven Mikhael, I would have sentenced you to 4 years and 6 months' imprisonment and ordered that you serve 2 years and 1 month of that sentence before being eligible for parole.

51 Finally, I will make the retention and disposal orders which the Crown has applied for and which you have not opposed.

[1] (1988) 166 CLR 59. See also Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; R v Grabovac [1998] 1 VR 664 and R v Synan [2002] VSCA 38.

[3] R v Galas & Mikhael [2007] VSCA 304 at [68].

[4] See R v Miceli [1997] VSC 22; [1998] 4 VR 588 per Tadgell JA at 591-2.

At a glance

Court

Decision date

Before

Source

Judgment (63 paragraphs)

Parties

Cases Cited (2)