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R v Gagalowicz

R v Gagalowicz

Case [2005] NSWCCA 452 22 December 2005

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CITATION:
R v Gagalowicz [2005] NSWCCA 452

HEARING DATE(S): 30 November 2005

JUDGMENT DATE:

22 December 2005

JUDGMENT OF:
The Court at 1

DECISION:
Appeal allowed; sentence imposed by Adams J on 8 July 2005 quashed; in lieu thereof, the respondent is sentenced to serve a non parole period of six years commencing on 19 April 2003 and to expire on 18 April 2009 and a balance of term of four years commencing on 19 April 2009 and to expire on 18 April 2013. The respondent is to become eligible for release on parole on 18 April 2009.

LEGISLATION CITED:

Crimes Act, ss 23A, 24
Mental Health Act

CASES CITED:
Markarian v R (2005) 215 ALR 213
Pearce v R (1998) 194 CLR 610
R v Blacklidge (unreported, NSWCCA, 12 December 1995)
R v Cooper (unreported, NSWCCA, 24 February 1998)
R v Forbes [2005] NSWCCA 377
R v Henry (1999) 46 NSWLR 346
R v MD, BM, NA, JT [2005] NSWCCA 342

PARTIES:
Regina v Matthew Gagalowicz

FILE NUMBER(S):
CCA 2005/1359

COUNSEL:
J. Bennett SC (Crown)
D.R. Campbell SC/T. Moisidis (Respondent)

SOLICITORS:
S. Kavanagh (Crown)
Campbell Paton & Taylor (Respondent)

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2004/8

LOWER COURT JUDICIAL OFFICER:
Adams J

2005/1359

STUDDERT J
WHEALY J
HOWIE J
THURSDAY 22 December 2005

REGINA v MATTHEW GAGALOWICZ

Judgment

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gagalowicz

Details

AGLC: R v Gagalowicz [2005] NSWCCA 452
Case: [2005] NSWCCA 452
Decision Date: 22 December 2005

CaseChat Overview and Summary

The Director of Public Prosecutions appeals against the sentence imposed by Adams J upon the respondent, Matthew Gagalowicz, on 8 July 2005. The respondent was found guilty of manslaughter and sentenced to a non parole period of four years with a balance of term of four years. The appeal raises issues about the starting point for sentencing, the impact of drug use, the significance of the respondent's diabetes, and the overall adequacy of the sentence. The Crown argues that the sentencing judge erred in treating the respondent's drug use and diabetes as mitigating factors and that the sentence was manifestly inadequate.

The court finds that the sentencing judge did err in treating the respondent's drug use as a mitigating factor, which caused the sentencing discretion to miscarry. The respondent's history of drug use did not give rise to any mitigation of his culpability. However, the court finds no substance in the argument that the sentencing judge erred in attaching weight to the respondent's diabetes. The medical evidence supported some possible impairment of thought process due to the diabetes.

The court finds that the sentence imposed was manifestly inadequate and quashes the original sentence. Taking into account the objective gravity of the crime and the respondent's mental state at the time, the court sentences the respondent to a non parole period of six years and a balance of term of four years. The respondent becomes eligible for release on parole on 18 April 2009.

Orders