Director of Public Prosecutions v Galea

[2015] VCC 1322

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01075

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL GALEA

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 September 2015
CASE MAY BE CITED AS:	DPP v Galea
MEDIUM NEUTRAL CITATION:	[2015] VCC 1322

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Department of Human Services	Ms D.M. Guesdon	Office of Public Prosecutions
For the Offender	Mr G.J. Traczyk	C. Marshall & Associates

HIS HONOUR: 

1Daniel Galea, in November 2013, you and your co-accused, Victor Farrugia, decided to rob a drug dealer called Justin.  Another man called Hopgood was involved to some degree but was not charged.  Victor Farrugia was, at the time, living with you in your mother's house. 

2On 29 November 2013, you took an imitation pistol and wore a hood over your head.  You went to where you believed the drug dealer lived.  Farrugia was with you, he had a knife.  You and Victor Farrugia got out of the car in front of the house and you ran to the house believing it was the drug dealer's premises.  Tragically for your victims, you were comprehensively mistaken.  You went to the wrong house and the victims you bailed up had nothing whatsoever to do with drugs.  

3You went into the garage of the house where five friends were enjoying their regular Friday evening training session in a gym set up in the garage.  You and Farrugia burst in yelling at the men to get on the floor or you would shoot them or put bullets in them.  You were wielding your imitation pistol.  You were yelling, "Which one of you is Jason?"  You were quickly told there was no Jason there and that you had the wrong place.  Rather than recognizing your mistake and just turning on your heel and getting out of the garage, you increased your violence and aggression towards the five men who, as I have said, had nothing to do with drugs or the criminal world that you were more familiar with.

4You picked up and threw a dumb-bell towards one of them, hitting his arm, causing a painful and lasting injury.  All the men were on the ground as you moved to and fro threatening to shoot them.  You kicked one man.  Farrugia went into the house and came out saying, "It was the wrong house."  The two of you decided to rob the men, nonetheless, getting what you could.  You stole mobile phones, money and car keys.  You then left throwing the car keys away and later the phones were swapped for drugs.

5On 10 December 2013, you and Farrugia were arrested.  You made "no comment" in your police interview.  Farrugia by contrast confessed his own involvement and implicated you.  He indicated that the plan was really one concocted by you and Hopwood on the basis that you had been to the drug dealer before and as far as Farrugia was told the drug dealer owed you money.  Farrugia was later sentenced on the basis that he agreed to provide backup for your plan to rob the drug dealer. 

6

Mr Farrugia indicated that he would give evidence against you.  He went further and gave an undertaking before Judge Campton when he came on for sentence on 23 May 2014.  At that time Farrugia faced a charge of armed robbery involving three of the men and for this offence he received a sentence of three years and three months.  On Charge 2, which was a charge of attempted armed robbery with two of the men, he received a sentence of

12 months but it was wholly concurrent.  Charge 3, which was the assault on the man using the dumb-bell, Farrugia received six months, two months of which were cumulative.  He also faced another charge of possession of amphetamines for which he received two months with one month cumulative and a charge of possession of counterfeit money for which he was fined.

7This gave Farrugia a total sentence of three years and six months and a non-parole period was fixed at two years.  Her Honour said the following after fixing the non-parole period:

"But for your plea of guilty and undertaking to assist the authorities, your sentence would have been six years and nine months to serve four years."

8

You, Mr Galea, ran a committal and cross-examined the victims and

Mr Farrugia.  A trial was then listed.  On the first day of the trial, you pleaded guilty.  Your plea of guilty will be acknowledged and your sentence will be less, but your plea is a very late one.  The victims were spared a second cross-examination but they had been cross-examined before and spoke of the stress of that in their victim impact statements, which I will turn to shortly.

9Your plea of guilty has some utilitarian benefit.  I will speak more of your remorse and regret when dealing with the psychological reports provided.

10This armed robbery was very serious offending.  The victims were entitled to feel safe training together at the premises.  Your aggression and violence created fear.  Your threats to shoot the men, as you wielded the imitation firearm as they lay prone and vulnerable on the ground, is frightening and dreadful behaviour.  Your punishment must fit the crime.  You had an opportunity to retreat when you discovered your dreadful mistake but you did not.  You persisted and stole items from the victims.  Your violence involved the throwing of the dumb-bell, as I have said, causing a lasting injury to one of the victims.  The effect on the victims is a factor making your offending more serious.  I will turn separately to the victim impact statements shortly.

11In addition, you have a criminal history involving violence, threats to kill and damage to property and endangerment offences, as well as driving matters.  It was explained to me that these arose in the context of a volatile or confrontational relationship.  Nonetheless, you have turned to violence when in those situations and, as I perceive it, acted impulsively and angrily.

12Three of the victims wrote victim impact statements.  I take into account what they said and the lasting effects of your crimes on them.  One indicated that he is less trusting, more security conscious and vigilant and has a sense of anger that you felt that you could do what you did.  He says this:

"My long term goals have changed.  I am planning to move home to my own country where I feel it will be safer for my family.  I had no plans like this before."

13He is seeing a psychologist. 

14Another says he has flashbacks and much anxiety in thinking of what happened to him with the weapons being wielded.  He said:

"Having this court process drag out so much has really impacted on my psychological state and I will be glad that I do not have to stress out about coming to court any more and making sure I am able to come and take time off work." 

15He concludes the event is one he will never be able to forget.  He feels as though his life has changed forever.

16Another writes about the experience being very traumatic and he is now hypervigilant ensuring that his house is locked.  He also became depressed and anxious and angry and emotional following this matter.  He says he lost his job because he could not concentrate, which put other workmates' safety at risk and he was taking too much time off.  There was stress on his relationship as he endeavoured to find jobs and he had to move house.  For him, though, things are improving and he feels mentally stronger now as the years pass.

17As to your own personal circumstances you are now 34 years old. 

18As indicated you have a criminal history, in particular some serious offending in the two to three years leading up to this offending.  You were on a community corrections order at the time of this offending.  However this armed robbery is by far the most serious crime that you have engaged in.  As I have said, you were on a community corrections order which was breached by these crimes.  This criminal history means weight must be given to deterrence to you and also your prospects of rehabilitation are guarded at best.

19You were raised with four siblings.  I apologise if it was five, there was different accounts in different reports, but in a blended family where your parents did their best.  You felt cared for.  Your father died suddenly when you were 14 years old.  This significant and traumatic event has taken an emotional toll on you as you were close to him and you were at a point in your life where he, as a role model, was important.

20Your family have remained supportive of you.  I was assisted by letters from your uncle and from your younger sister.  In fact you had considerable support in court on each occasion both in Geelong and here in Melbourne.

21You struggled at school and you told the psychologist that you thought that you left school after Year 8.  Thereafter you worked mainly in labouring jobs and it seems most often for your uncle with a carpentry or cabinet making business.  Your uncle speaks highly of your efforts as a worker, however it seems you have not had long term employment, it seems that you have not held a job for any great length of time due to your difficulties with your drug and alcohol problems, but your work efforts are to your credit.

22You took to drink and cannabis as a teenager and these have become serious problems.  Later you took up methamphetamine use.  Drugs and alcohol have been, as I have said, long term problems for you.  You have indicated your desire to end drug use.  The test will be what your commitment is once released. 

23I do take into account your efforts in the prison to rehabilitate and do the programs that are there to assist you with drug abuse.  I also take into account your clean urine samples that have been provided.  This effort in the prison is no small matter.

24You were seen by a psychologist arranged by your lawyers.  His opinion as to your personality and function was as follows:

"Mr Galea's social reasoning reflects his persistent dependent and antisocial personality features and dull intellect.  His social reasoning is unsophisticated.  He tends to reduce even complex problems to simplistic concrete terms.  As a result he considers only a small number of options and rapidly forecloses on a solution without exploring either a comprehensive set of alternatives, or giving sufficient time for the implications of a course of action to come to mind."

25He goes on with the following perhaps obvious conclusion:

"Therefore Mr Galea tends to be impulsive.  He often makes poor decisions and frequently chooses his course of action based on short term considerations, such as anger, or excitement, rather than long term consequences.  He learns poorly and slowly from negative consequences and has a history of long term drug and alcohol abuse.  Mr Galea suffers a raft of dependent and antisocial personality features."

26Psychologist, Mr Ball, also tested you for your intelligence.  The results were a bit surprising.  The assessment was a full scale IQ of 59.  Of note was the very significant difference in your verbal comprehension of 45 and your perceptual reason of 73.  Of this marked difference Mr Ball wrote:

"The differences between his composite scores on verbal comprehension and perceptual reasoning are better accounted for in terms of lack of educational opportunity and personal application and effort when opportunities were presented to him."

27He went on:

"I confirm that he must have been affected by his intellectual impairment and the dependent and antisocial features of his personality at the time of his offending."

28I take this to mean your impulsiveness and lack of capacity to consider consequences were evident in your decision and in you embarking on executing this serious armed robbery.  As will be discussed these personality traits and low IQ affect your judgments.  They also give rise to concerns about protection of the community.  As Mr Ball said, you learn poorly and slowly from poor judgments and do not understand serious consequences of some of the things that you do.

29In terms of diagnosis, Mr Ball was of the view that:

"Based on Mr Galea's personality and forensic history and clinical interview, I am of the view that he falls short of a DSM-5 diagnostic criteria for personality disorder."

30He was of the view that you did satisfy the DSM-5 diagnostic criteria for severe stimulant disorder relating to cannabis and alcohol, a conclusion which is hardly surprising.  You have been addicted to drugs and alcohol and you will struggle with it.

31Mr Ball had been provided with a psychological report, dated 16 December 2013, prepared by another psychologist, Dr Paul Grech.  Dr Grech had in fact been your treating psychologist for a period of two years.  You were referred to him by your general practitioner for assistance with depression and it seems what may have been a psychotic condition.  I will return to this uncertain diagnosis relating to a psychotic condition shortly. 

32Dr Grech was of the opinion that you had low mood for a significant period of time.  Dr Grech over the period of time that he saw you, had you undertake a number of psychometric tests, including an IQ test.  What Dr Grech said was:

"During the examiner's involvement he has taken prescribed medication, responded most favourably to cognitive behaviour therapy and has managed to find full time employment as a project manager at a cleaning company."

33There was no further evidence relating to this employment. 

34Dr Grech outlined the results of the six psychometric testings that he had you undertake.  Most of them related to psychological issues and in particular depression and the like.  Dr Grech's opinion as to your intelligence quota was set out in very concise terms as follows:

"Limited cognitive testing was indicative of process, speed and memorial deficits suggesting of residual neurological damage possibly connected with previous alcohol dependence."

35He did not elaborate on any IQ figures or a rating such as borderline or intellectually disabled, or to use the words of Mr Ball, "retarded."  There was no other suggestion or reference to diminished brain function due to alcohol abuse.

36Your counsel when the plea was called on, on 5 June 2015, submitted that as a consequence of the IQ assessment that the principles articulated in the well-known case of Verdins were enlivened.  Counsel urged that you should receive a sentence less than that given to Farrugia, essentially a gaol sentence for the time you had served together with a community corrections order.  He accepted then that what he was seeking was a significant discount for your intellectual difficulties based on the principles set out in Verdins.

37At the time I raised with your counsel as to whether with an IQ of 59, had you been provided with services under the Disability Services Act 2006 and whether there was any certificate indicating that you are an intellectually disabled person, whether you had been to special schools or matters of that kind.

38Your counsel said that given all the materials including the report of Mr Ball and the references and the like from your uncle, it all indicated that, "You obviously have managed to lead your life."

39

Given that these issues were raised and further that Mr Ball had not referred to any emotional difficulty you confronted when your father died and that

Dr Grech had spoken about a diagnosis of schizophrenia, which again was not mentioned in any detail by Mr Ball, I felt it necessary to get further assistance in a report from Forensicare.  I was hoping there could be a fresh IQ test, but I understood but there would be great limitations upon that given that you had undergone such a test so recently.

40In the end you were seen by a psychiatrist, Dr Shannon Reid, and she provided a report dated 22 July 2015.  In her opinion she said the following:

"It would appear reasonable to suggest Mr Galea has a mood disorder.  While it is possible he has experienced periods of major depression previously, he described a pattern consistent with persistent depressive disorder, a chronic disorder of lower mood of moderate intensity.  In addition he appears to have social anxiety disorder and panic disorder."

41She went on:

"The evidence currently available to me in support of a diagnosis of schizophrenia is not strong.  The symptoms that Mr Galea was able to describe to me today are not clearly indicative of the presence of a psychotic disorder such as schizophrenia and more consistent with the presence of an anxiety disorder."

42She went on in respect of alcohol and substance use disorder to say:

"That it is clear that you had a substance use disorder relating to the use of alcohol and other substances."

43She concluded:

"There is no indication that the offence was directly precipitated by symptoms directly related to a psychiatric disorder as such."

44She thought that on your report that you were intoxicated at the time, that you may have been disinhibited and had problems exercising appropriate judgment. 

45As to your cognitive capacity, she noted the difficulties in the video conference assessment that you undertook, but that:

"Mr Galea used relatively restricted vocabulary, however appeared to have a reasonable level of verbal comprehension."

46She noted you were able to express your remorse.

47As to the offence, you said to Dr Reid that you were egged on to do the crime by the co-offender, you were intoxicated with alcohol, Xanax and ice at the time.  You told her of your distress, that you had made the victims go through what they had gone through and you had thoughts about the victims on a daily basis.  There is no further reference in that report to any intellectual difficulties or disabilities.

48There is nothing in the letters tendered on your behalf from your uncle or your sister that would indicate any significant impact on you arising from an intellectual disability.  On the contrary they speak of your work capacity, your capacity to think of others and to act appropriately, while acknowledging that you have difficulty with drugs and suffered as a consequence of the tragic death of your father while you were an adolescent.

49The High Court of Australia in Muldrock restated the well-known principle:

"That those with an intellectual disability must have that disability considered in the sentencing process."

50It is necessary to have solid evidence of an intellectual disability.  Here that comes from Mr Ball.  Dr Grech, who had tested you, did not express an opinion in the same terms.  In terms of general lifestyle, the people that know you do not speak of any particular difficulties that you have and indeed your counsel said that you were able to live your life.  You have been a working man and according to Dr Grech were a project manager in a cleaning business.  I have no difficulty in accepting that you have a dull intellect and at the lowest levels.

51I do consider that on all the evidence there is sufficient to consider that your intellectual disability is at a level that impacts upon sentencing considerations.  In other words, you have an impaired mental functioning as spoken about in Verdins.  This would have the effect that your capacity to make appropriate judgments was impaired.  As Mr Ball makes clear, you are impulsive.  You have personality difficulties and lack the capacity to think things through.  You think about short-term matters such as getting drugs, or getting money to get drugs to satisfy cravings.  Thus, in your circumstances, I consider to a degree that your moral culpability for these crimes is lower as a consequence of your intellectual disability.

52I consider that there would be suitable moderation for the impact of specific deterrence because it may not be as easy for you to completely comprehend the cause and effect or consequences of continuing to offend.  As simply as I can make it to you, Mr Galea, you should understand that should you continue to commit offences then sentences are going to be ever more severe.

53The question of general deterrence is one resolved by my conclusion that there ought to be some suitable moderation because of your intellectual disability.  That said, general deterrence is ordinarily a very weighty matter in offending of this kind and remains weighty notwithstanding the suitable moderation that I have factored into the equation because of your intellectual disability.  Your personality and intellectual disability does make gaol harder for you and you plainly are anxious and paranoid in prison. 

54As the Court of Appeal has made plain findings in mitigation as a consequence of intellectual disability do not mean that in serious cases it is inappropriate to impose stern punishment.  I refer in particular to the recent decision of the Court of Appeal in Gerbing v The Queen and Croughan v The Queen [2015] VSCA 2009, handed down on 12 August 2015. Those two offenders in that case approached an 18 year old schoolgirl waiting for a bus near her home in Frankston. It was 6.30 in the morning as she waited to go to school. The two offenders walked up behind her. Croughan grabbed the complainant by her wrist, dragged her arms behind her and held them there.  Gerbing took her school bag and handbag and ran down the street carrying them.  While still holding the complainant's arms behind her back, Croughan showed her a knife and threatened her by saying, "If you call the police we'll kill you because we know that you catch the bus every morning."  Both offenders were subsequently interviewed by the police some time later.  Both gave accounts that they found the school bag and handbag just on the street.

55

The circumstances of Mr Croughan are relevant here.  Mr Croughan was

29 years of age and had a full scale IQ of 62.  It was said additionally Croughan's exposure to drugs and alcohol have added to his intellectual disability.  It was said that Croughan's criminal history was extensive and he had many prior convictions for violence and dishonesty spanning his whole adult life.  He had been sentenced to community-based orders and breached those orders.  He also had suspended sentences, partially suspended sentences and had only been released from prison 22 days before.  Also he had committed serious offences subsequently.

56In that case the sentencing judge accepted the principles articulated in Verdins applied to Mr Croughan and had the effect to reduce his moral culpability, was relevant to the question of specific deterrence, incarceration and general deterrence.  The submissions on behalf of Croughan for a community corrections order did not find favour given the offender's criminal history, dispositions where leniency had been shown in the past and in particular the seriousness of the offending, the armed robbery.

57The appeal, on the ground that the judge had not taken into account sufficiently the principles set out in Verdins was comprehensively rejected.  It should be noted that Croughan went to trial and was found guilty of armed robbery by a jury.  For completeness, the co-accused, Gerbing pleaded guilty to a charge of robbery.

58Although not set out explicitly in the 6 points articulated in Verdins it has always been appropriate to consider in sentencing that an intellectual disability, or an impaired mental function of any kind, if enduring, may mean that emphasis needs to be given to the important sentencing purpose of protection of the community.  This has been well recognised from Veen No.2 in the High Court and has been explicitly referred to in recent times by the Court of Appeal, in particular in the well-known decision of Boulton at paragraph 70-73, in Kemp [2015] VSCA 48 and it was also referred to in Gerbing and Croughan.

59Thus, given your intellectual disability and, it would seem, consequential impulsivity, I must consider that along with other aspects in your personal circumstances, including your past criminal history, I must consider if there is a need to give weight to protection of the community.  This is not to be seen as punishing you for your congenital problem, but rather recognising that you do present as someone who has turned to violence and on this occasion has done so in a very serious way.  I emphasise that this aspect of protection of the community in the sentencing matrix is not a matter given undue or even significant weight and overall your intellectual disability, in the balance, mitigates.

60It was submitted by your counsel that you should receive a lesser sentence than Farrugia by reason of your intellectual disability.  This submission was put, notwithstanding the significant benefit that necessarily flows to Farrugia by reason of him giving his undertaking to give evidence for the prosecution and complying with that obligation, at least insofar as the committal was concerned and indicating that he would honour his undertaking, although given your plea of guilty it was not necessary that he give evidence at a trial.

61It was submitted by counsel for Farrugia, at the plea before Judge Campton, that a very significant benefit should flow to him as a consequence of giving his undertaking to give evidence.  The Crown conceded that the evidence of Farrugia was of considerable assistance, though pointed out there was other evidence implicating you, Mr Galea, in the prosecution brief.

62

It is an important policy consideration in sentencing that those who are prepared to assist the Crown and give evidence against co-accused must receive palpable benefits for doing so.  There is a need to encourage co-offenders to take responsibility and give evidence against others who are denying their involvement.  It seems to me in this case that the benefits to

Mr Farrugia for his early plea of guilty, his co-operation in his undertaking to give evidence and the fact that he did give evidence at the committal must significantly outweigh any benefit or mitigation that flows to you, Mr Galea, by reason of your intellectual disability.  I say that mindful that none of this is some kind of arithmetic equation.

63I accept that you were involved in the planning of this armed robbery and a principal player in carrying it out.  You were the one who caused the injury by throwing the dumb-bell, which fortunately for the victim and for you only hit him on the arm and caused the injury and not something worse.

64You have expressed remorse to the psychiatrist and psychologist you have seen, although until the trial was listed you were pleading not guilty to the offences.

65You have spent 646 days in prison and I will declare 622 of those days as part of my sentence, though I do take into account the whole of the time that you have been in custody.  As noted, because of your intellectual deficits and anxiety, gaol is hard for you.  Also by reason of the prison riots in recent times, you have had two and a half months, or 80 days under a very difficult regime of 23 hours in your cell.  I take that into account in your favour, as I do the harsh treatment meted out to you immediately after the riots.

66You have, to your credit, done what you can in prison and the courses that you have done and the certificates that were tendered are to your credit.  You must continue with your rehabilitation on your release.  As I have said, you have good support and will have that on your release.  Mr Galea, do not let them down.

67Subject to the suitable moderation as a result of your intellectual disability, the sentencing purposes of particular importance in this matter are denunciation of your violent crime.  The community has little if any tolerance for drug addicted armed criminals terrorising innocent people enjoying time together in the sanctity of a private home.  Also my sentence must deter you and others from violent crimes. 

68Your rehabilitation is not overlooked, but given all the circumstances it must yield to other matters.  The only tool I consider I have available is a period of potential parole.  Whether you are granted parole or not is for others not me. 

69The submission that I consider a community corrections order in addition to time served in prison, or a prison term, is not one I can accept.  Parliament has made it clear that such an option is only available if the sentence of imprisonment imposed is two years or less.  On any analysis of this offending committed by you, with all your personal circumstances, including your intellectual disability, it cannot be the case that an appropriate sentence would be two years or less. 

70In my view the only option is a sentence of imprisonment and a significant one, one longer than the co-accused, so as to allow proper recognition of his early plea and his willingness to give evidence, as he did at the committal.  Parity is kept in mind but the differences between your circumstances has exposed by his early plea and willingness to give evidence are what are most important in this matter.

71For committing the crime of armed robbery, you are sentenced to four years and six months' imprisonment.

72For committing the crime of recklessly causing injury, you are sentenced to eight months' imprisonment.  I order that three months of that sentence be cumulative upon the sentence that I have imposed on Charge 1, which gives a total effective sentence of four years and nine months and I order that you serve three years before being eligible for parole.

73

You have already served a significant time in custody, that is 622 days. 

I declare the time you have served in custody as part of the sentence that I have just imposed and will ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already done 622 days of the sentence I have imposed.

74Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of five years and six months with a minimum term of four years and six months.

75Is there any other orders?

76MS GUESDON:  Your Honour, firstly it is prison detention of 624 days.

77HIS HONOUR:  I am so sorry, 624.

78MS GUESDON:  Yes, 624.  Secondly, on the last occasion the prosecution handed up a disposal order which hopefully is around somewhere.

79HIS HONOUR:  I will just sign that now.

80(Disposal order signed and acknowledged.)

81Anything further?

82MS GUESDON:  No, Your Honour.

83HIS HONOUR:  Thank you.  Mr Galea, the court here, as I explained, in Geelong, is not a place that you can spend any time with any of the people who I have noted have great support for you.  They will be able to see you in due course at a later point.  You will be taken to the cells now.

84I thank counsel for their assistance.  Is there anything further?

85MS GUESDON:  No, Your Honour.

86MR TRACZYK:  No, Your Honour.

87HIS HONOUR:  Thank you.

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