R v Galas & Ors [2006] VSC 161

2 On 2 September 2003, Robert D'Amico was shot dead at the house in Tullamarine where he was living. At that house, Robert D'Amico had been illegally cultivating cannabis plants. The cultivation of cannabis plants was an activity in which each of you had taken a keen interest at that time. At least one of you had learned something of Robert D'Amico's cannabis crop. It seemed to you that a raid on Robert D'Amico's house might present a way of getting, in an easy way, some cannabis and some money. Accordingly, a plan was devised to do a run-through there. A run-through is a shorthand way of describing a combined aggravated burglary of the house and armed robbery of the occupants. The three of you and another man planned to take part in the run-through.

3 In the early hours of the morning on 2 September 2003, the four of you set out from the home of Ismail Muhaidat. You took with you several items. The items included weapons to be used to intimidate, balaclavas to be used to disguise yourselves, and bags in which to take away the cannabis. You, Craig Galas, took with you a handgun. It was the handgun that was used to fire the fatal shot. You later told the police a number of things as to that gun. All of them are unverified or unverifiable or both. What you said included: that you thought it was a .38; that you had had it for about 2 weeks; and, that the ammunition came with it; that you acquired it from a bloke in a pub; that you got rid of it later by throwing it into the Maribyrnong River. The gun was taken by you to be used to intimidate Robert D'Amico, and anyone else who was in the Tullamarine house.

4 You, Ismail Muhaidat, took as a weapon a large baseball-bat-sized piece of wood. You, Steven Mikhael, carried an extendable baton. On your arriving at the D'Amico house, one of you kicked in the front door. The four of you then quickly moved in. Robert D'Amico was in the lounge room. There was another man in a bedroom of the house. You, Steven Mikhael, went into that bedroom. You handled that male without violence and with relative consideration in the circumstances. You, Craig Galas and Ismail Muhaidat, went into the lounge room. Craig Galas, you pointed your gun at Robert D'Amico. You demanded that he get down and put his hands behind his back so that you could tie him up. You, Ismail Muhaidat, satisfied yourself that Robert D'Amico was complying with the demands of Craig Galas. You then moved out of the lounge room.

5 Craig Galas, you then set about tying up the arms of Robert D'Amico behind his back with silver duct tape. You were still holding the gun as you were engaged in stripping off the duct tape to bind him. That combination of actions, namely the keeping up of the intimidation with the gun, plus the stripping of and tying with the duct tape led to a readily foreseeable although unintended consequence. You were trying to do too much at the one time. In the process, you discharged the gun. Once the gun was discharged, all four of you ran out of the house. Nothing was taken from it. But in there, Robert D'Amico was dying of the bullet discharged by you, Craig Galas.

6 Your links to Robert D'Amico were not so direct that the police were able to trace the three of you quickly. In the intervening time, the fourth member of your team of four left for overseas.

7 While the police investigations were continuing, the three of you worked on your own separate crops of cannabis. When the police eventually called at your homes, they found more than a little evidence of such cultivation. At the home of you, Craig Galas, what they found included 891 cannabis plants growing in 3 bedrooms. At the home of you, Ismail Muhaidat, what they found included 18 plants growing in 2 bedrooms. They also found in both homes that steps had been taken so that electricity was being diverted, and thus not recorded and paid for. At the home of you, Steve Mikhael, what they found included 6 cannabis plants growing in your backyard. All three of you acknowledged that the plants were yours. All three of you co-operated with the police substantially, although there was a degree of covering up.

8 I return to the events of 2 September 2003. Even before the gun was discharged, the three of you had engaged in particularly serious criminal conduct. You had planned a home invasion in the middle of the night. The planned run-through necessarily involved the use of intimation through the use of weapons, one of which was a gun. Each of you knew that a gun was being used, at least from the time of forced entry. Each of you must have anticipated the risk of the need to use force unlawfully and therefore to injure. Despite prosecution submissions that I should take a more serious view, I accept that it was not intended by any of you that Robert D'Amico was to be killed or really seriously injured. There was minimal violence shown other than in the use of the gun. Nevertheless, you, Craig Galas, made use of that gun when you clearly knew that it was loaded. You at least knew that there was a more than a remote risk of death or really serious injury. Knowing that the gun was loaded, you intentionally engaged in an act of violence, in the course of a crime of violence. You presented the loaded gun at Robert D'Amico, and you tried to tie his arms while you were still holding that loaded gun.

9 As to you, Ismail Muhaidat and Steve Mikhael, the jury's finding of manslaughter must be taken to reflect that they were not satisfied that either of you knew that the gun was loaded. The two of you were, nevertheless, complicit in an unlawful and dangerous act that caused death. You were part of a joint enterprise. You were aware that violence was a part of what was planned. You were, or ought to have been, aware that death from that violence was a possible incident of that enterprise. Stern punishment is called for.

10 Subsequently all three of you engaged in the cultivation of cannabis, a criminal activity that is also to be treated as serious. It too is deserving of stern punishment that reflects the need for general deterrence, as the maximum penalties prescribed by Parliament make clear.

11 I have read carefully the victim impact statements which have been provided to the court by David and Michael D'Amico, two brothers of Robert D'Amico. Their statements refer to the adverse effects for them of their brother's death. The statements help to achieve balance in the sentencing process. An untimely traumatic death can have many immediate, and many enduring, consequences, that are unpleasant, and worse than just unpleasant.

12 There are a number of mitigating factors that apply to each of the three of you. As to the added charges as to cannabis cultivation, you have all pleaded guilty. That merits a reduction in sentence. The cultivation of cannabis by each of you was far from being a passport to riches, and I sentence you accordingly. Although you did not plead guilty to the aggravated burglary and attempted armed robbery charges, they were only formally contested. The focus of your defence in each case was on the main charge of murder. I accept that there has been a delay longer than usual in the hearing of your plea and the imposing of sentence, and I allow for that. I accept that all three of you are remorseful to some degree, as to the death of Robert D'Amico and otherwise. That remorse is reflected in part from the pleas of guilty, and in part from aspects of what was said in the police interviews and in the materials presented on the plea. On the plea, I had psychological reports tendered as to each of you. Each report provided detail of your backgrounds which I will but briefly summarise.

13 Craig Galas, you were born in March 1973. You left school after Year 10. You then worked at various jobs including for a considerable period at Caroma. You moved into the alluring but potentially dangerous night club scene. You have had significant problems with alcohol and with illegal drugs. You have prior convictions between 1993 and 1996. The convictions reflect a disdain for the law, particularly as to using cannabis and respecting intervention orders. There are no assault or other convictions involving direct violence. Your father has never been a part of your life. Your mother has been supportive to a degree, but when you were younger, she was distracted by the severe illness of, and her need to care for, your sister. You have engaged in prison courses. I would assess as fair your prospects of rehabilitation.

14 Ismail Muhaidat, you were born in Lebanon in June 1980. You came to Australia as a small child. Although raised by both parents, there were tensions in the marriage and they have now separated. For a period as a child, you suffered some abuse at the hands of a family friend. You schooling was affected by bullying, and you opted to leave prematurely. The psychological tests have shown that you have a level of intelligence such that you would benefit from further study. You have had six court appearances between the years 1998 and 2000 for drug and other offences. They are troubling in number and character, although you did not have imposed an immediate prison sentence. You have a fiancée, to whom a child was born in February of 2004. You have spoken convincingly of your remorse for your crimes. More importantly, you have acted since being in prison in a way that suggests that you mean what you say. There was striking evidence given on the plea by Anne Hooker and Rodney Boyd of the work that you have been doing in prison to improve your lot and the lot of others. That was confirmed by prison certificates as to courses you had engaged in. The indications are that your rehabilitation prospects are excellent. That is reflected in the shorter non-parole period that I will set for you.

15 Steven Mikhael, you were born in July 1981 in Turkey. You came to Australia as an infant. You can speak a number of languages, but have not used that capacity to advantage. You come from a supportive family with strong religious beliefs, but various factors contributed to the instability of your background. You became addicted to cannabis. You have had court appearances between 1999 and 2003 for offences that include drug matters, burglary and recklessly causing serious injury. Three further appearances in 2004, which led to the imposition of sentences of imprisonment in that year, have meant that the calculation of your pre-sentence detention days is somewhat complicated. The indications from the report of Bernard Healey are that you are now self-reproachful as to having wasted the last few years. Your rehabilitation prospects appear to be fair.

16 I have signed disposal and retention orders, there being no objection to my doing so. I direct that there be entered in the court record these declarations as to pre-sentence detention: Craig Galas, 902 days; Ismail Muhaidat, 902 days; and, Steven Mikhael, 446 days.

17 I am conscious of the need to respect the principle of totality, and to take appropriate parity considerations into account. The sentences of imprisonment I impose are as follows.

18 Craig Galas. On the count of Murder, I impose a sentence of 18 years. I impose sentences of imprisonment, with concurrency periods on the count of Murder as follows:

On the count of Aggravated burglary, 3 years, 1 year concurrent.

On the count of Attempted armed robbery, 3 years, all concurrent.

On the count of cultivating a commercial quantity of cannabis, 3 years, 1 year and 6 months concurrent.

On the count of theft of electricity, 3 months, 2 months concurrent.

19 Craig Galas, with cumulation, the total effective sentence is 21 years and 7 months. I set a non-parole period of 16 years.

20 Ismail Muhaidat. On the count of Manslaughter, I impose a sentence of 6 years. I impose sentences of imprisonment, with concurrency periods on the count of Manslaughter as follows:

On the count of Aggravated burglary, 3 years, 1 year concurrent.

On the count of Attempted armed robbery, 3 years, all concurrent.

On the count of cultivating cannabis, 2 years, 1 year concurrent.

On the count of theft of electricity, 3 months, 2 months concurrent.

21 Ismail Muhaidat, with cumulation, the total effective sentence is 9 years and 1 month. I set a non-parole period of 5 years.

22 Steven Mikhael. On the count of Manslaughter, I impose a sentence of 6 years. I impose sentences of imprisonment, with concurrency periods on the count of Manslaughter as follows:

On the count of Aggravated burglary, 3 years, 1 year concurrent.

On the count of Attempted armed robbery, 3 years, all concurrent.

On the count of cultivating cannabis, 2 years, 1 year concurrent.

23 Steven Mikhael, with cumulation, the total effective sentence is 9 years. I set a non-parole period of 6 years.