R v Galas & Mikhael - [2008] VSC 513

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1485 of 2004

THE QUEEN

CRAIG TARAS GALAS

and

STEVEN MIKHAEL

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 10, 14 November 2008
DATE OF SENTENCE:	25 November 2008
CASE MAY BE CITED AS:	R v Galas & Mikhael (Sentence)
MEDIUM NEUTRAL CITATION:	[2008] VSC 513

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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.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Shwartz	Office of Public Prosecutions
For the First Accused	Mr J. Montgomery SC	Clarebrough Pica
For the Second Accused	Mr J. Kaufman with Mr D. Hannan	Balot Reilly & Associates

HIS HONOUR:

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.

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.

Summary of the Facts

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.

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.

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…

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 Galas & Mikhael

Details

AGLC: R v Galas and Mikhael [2008] VSC 513
Case: [2008] VSC 513
Decision Date: 25 November 2008

CaseChat Overview and Summary

In the case of R v Galas & Mikhael, the accused were charged with multiple offences including statutory murder, manslaughter, and other related charges under the Crimes Act 1958 (Vic). The dispute centred around the sentencing of the two individuals who had pleaded guilty to their respective charges. The matter was heard in the County Court of Victoria. The legal issues before the court included the appropriate sentence for statutory murder, the impact of remorse and rehabilitation on sentencing, and the consideration of a retrial due to fragmentation of the sentencing process for multiple offences.

The court had to determine the appropriate sentence for statutory murder and manslaughter, taking into account the totality principle, which requires that the combined sentence for multiple offences should not be disproportionate. The court also considered the delay in the sentencing process, the remorse shown by the accused, and their potential for rehabilitation. Given the fragmented nature of the sentencing for multiple offences, the court needed to ensure that the sentence was fair and just, reflecting the seriousness of the crimes committed.

The court, in delivering its judgment, emphasised the gravity of statutory murder and the need for a sentence that reflected the community's sense of justice. The court acknowledged the delay in sentencing and the potential for rehabilitation but ultimately found that the appropriate sentence should reflect the seriousness of the crime. The court held that a sentence of life imprisonment for statutory murder, with a non-parole period of 25 years, was appropriate. The court also sentenced the accused to concurrent terms for the other offences, taking into account the totality principle.

The final orders of the court were that the accused be sentenced to life imprisonment for statutory murder, with a non-parole period of 25 years, and concurrent terms for the other offences. The court recognised the importance of rehabilitation and remorse but held that the primary consideration was the need to uphold the community's sense of justice.

Orders