R v Galea

[2003] NSWSC 465

CITATION:	Regina v Raymond Galea [2003] NSWSC 465
HEARING DATE(S):	1 May 2003
JUDGMENT DATE:	30 May 2003
JUDGMENT OF:	Sully J at 1
DECISION:	2 years pre-trial custody plus head sentence of 5 years imprisonment commencing on 7 April 2003 and expiring on 6 April 2008, with a non-parole period of 2-1/2 years commencing on 7 April 2003 and expiring on 6 October 2005
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 (NSW)
CASES CITED:	Reg v Faulkner [2000] NSWSC 944
PARTIES :	Regina Raymond Galea
FILE NUMBER(S):	SC 70075/02
COUNSEL:	B. Newport QC - Crown P. Hogan - Prisoner
SOLICITORS:	Director of Public Prosecutions - Crown Gregory Goold Solicitors - Prisoner

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

SULLY J

Friday 30 May 2003

70075/02 – REGINA v RAYMOND GALEA

ON SENTENCE

1 HIS HONOUR: On 19 February 2003 the prisoner, (Mr. Raymond Galea), was presented in this Court for trial upon an indictment charging him with having been an accessory after the fact to the murder by one Kathy Yeo of one Christopher Mark Dorrian. The prisoner pleaded not guilty; and he stood thereupon his trial by jury. The trial concluded on 10 April 2003 with the return by the jury of a verdict of guilty. On 1 May instant the Court heard submissions on sentence. The passing of sentence was deferred until today.

2 The prisoner’s trial was in fact his third trial.

3 He was first tried by Grove J and a jury upon a charge of having murdered Christopher Dorrian. The prisoner stood that trial jointly with Kathy Yeo. The jury found Kathy Yeo guilty of murder; and found the prisoner not guilty of murder but guilty of having been an accessory after the fact to the murder committed by Kathy Yeo. Both the prisoner and Kathy Yeo appealed successfully to the Court of Criminal Appeal; and a new trial was ordered for each of them. The joint re-trial took place before James J and a jury. Kathy Yeo was again indicted for murder; and the prisoner was indicted for the accessorial offence. Kathy Yeo was again found guilty of murder; but the jury could not agree upon a verdict in the case of the prisoner.

4 The foregoing course of events has entailed that the prisoner has spent various periods in pre-trial custody. It will be necessary to calculate in due course a sentencing structure that allows appropriately for all such pre-trial custody.

5 At the commencement of the prisoner’s trial, certain matters of fact were agreed between the Crown and the defence, namely:

1. that the Crown was able to adduce evidence sufficient to prove that Kathy Yeo murdered Christopher Dorrian prior to 21 June 1997;

2. that the severed head of Christopher Dorrian was located on 21 June 1997, on a bank of the Cook’s River in this State;

3. that the death of Christopher Dorrian was caused by three gunshot wounds to the head.

6 There can be added to those agreed facts the following additional facts which either were uncontroversial at trial although not formally admitted, or are facts of which I am satisfied beyond reasonable doubt:

1. The three gunshot wounds were fired from a .22 calibre Citation pistol of which the prisoner was at all material times the authorised responsible holder.

2. That pistol was one of a number of firearms which the prisoner was then authorised to hold in his possession.

3. All of those firearms were kept by the prisoner in a secure place in premises located at 127 Petersham Road, Marrickville. The only persons having practical access to that secure place were the prisoner and Kathy Yeo.

4. It is not possible to fix with absolute precision either a time or a place for the carrying out of the murder of Christopher Dorrian. The overwhelming inference is, however, that the actual shooting took place on the week-end of the Friday/Saturday, 5/6 June 1997. The overwhelming inference as to the place of the killing is that it was Unit 17, 33 Maida Street, Lilyfield.

5. It is not possible to fix with absolute precision the time and place of the decapitation of Mr. Dorrian’s corpse. It seems to me to be a common sense inference that it must have been done in very short order after the actual shooting. I am satisfied that the place of the decapitation was the same Unit 17. The matter found subsequently in the plug hole of the bath at those premises is, in my opinion, itself strongly indicative of those premises as the site of the decapitation. The blood staining found subsequently in various places within Unit 17 seems to me to strengthen greatly the inference that the unit was, indeed, the site of the decapitation.

7 The Crown case at trial postulated three material acts on the prisoner’s part, namely:

1. that the accused was instrumental in whole or in part in the removal of the head of Christopher Dorrian from his dead body;

2. that the accused was instrumental in whole or in part in the disposal of the head and of the accompanying personal property;

3. that the accused was instrumental in whole or in part in cleaning up the scene of the removal of the head from the dead body of Christopher Dorrian.

8 The Crown went to the jury upon the basis that the evidence at trial should satisfy the jury beyond reasonable doubt that the prisoner had done all three of those acts; but the Crown put, as an alternative case, that it would suffice in law to found a conviction for the jury to find beyond reasonable doubt that the prisoner had done any one of the three postulated acts.

9 The jury’s verdict entails, of course, that the jury was satisfied beyond reasonable doubt that the prisoner had carried out at least one of the three suggested acts. What the verdict does not entail is that the jury was so satisfied as to more than one of the three acts. That entails, in its turn, that this Court must now make its own findings of fact in that connection. Any such finding must be made beyond reasonable doubt.

10 An important consideration in that connection is the necessary implication which the jury’s verdict carries as to the one real defence, - formal joinder of issue apart, - that was advanced at trial. That defence was, put simply, that the evidence left open as a reasonable possibility that one Mark Benjamin, a sometime paramour of Kathy Yeo, had been, to the exclusion of the prisoner, an accessory after the fact to the murder. The jury’s verdict must entail, given the practical conduct of the trial, the rejection of that defence hypothesis.

11 Of the three acts particularised by the Crown, the third, that is to say the act of cleaning up the crime scene, is in my opinion the act about which the fact of the prisoner’s implication can be most readily found beyond reasonable doubt. All of the relevant trial evidence about the prisoner’s motive, movements and actions, seems to me to point convincingly in that direction.

12 The prisoner’s implication in the other two particularised acts is not, in my opinion, so readily apparent. The acts themselves are so repellant that it is difficult to accept that a person of the prisoner’s prior good character could have taken any part in them. The objective realities are, however, to the contrary.

13 First, it is not a reasonable possibility on the whole of the available evidence that Kathy Yeo herself had nothing to do with the decapitation, and with the subsequent disposal of the head and the accompanying personal effects of the victim.

14 Secondly, the available evidence does not leave open as a reasonable possibility that Kathy Yeo, ruthless and resourceful as she appears to have been, could have carried out unaided the decapitation itself; or the subsequent disposal of the head and the accompanying effects; or the disposal of the balance of the victim’s remains. The disposal of the balance of the victim’s remains has been so efficiently accomplished, indeed, that their whereabouts remain to this very day a total mystery.

15 Thirdly, once it is accepted that there is no reasonable possibility that Kathy Yeo, wholly unaided, was able to effect the acts of decapitation and of subsequent disposal, then there are only two possible accessories who are identified by the evidence, reasonably and practically assessed. The prisoner is one. Mark Benjamin, to the exclusion of the prisoner, is the other. I am unconvinced that it remains open as a reasonable possibility that Mark Benjamin, to the exclusion of the prisoner, was so involved. It seems to me to follow ineluctably that the prisoner was so involved. Those conclusions of fact are, I apprehend, consistent, as by law required, with the jury’s verdict.

16 The foregoing findings establish the prisoner’s offence as one of significant objective seriousness. I adopt respectfully what is said in that connection by Wood CJ at CL in Reg v Faulkner: [2000] NSWSC 944 at pars. [40] and [41].

17 As to the relevant subjective matters I note the following:

[1] Age : The accused was born on 13 April 1955. He was aged, therefore, a little more than 42 years at the time of offending. He is aged now a little more than 48 years.

[2] Family circumstances : The prisoner was married during his early 20’s. He and his wife separated in 1995. He had a passionate, albeit a somewhat volatile, affair with Kathy Yeo; and it seems to be clear that his offending in 1997 was a consequence of, and a stark measure of, the nature and the intensity of that relationship. It seems that while the prisoner was on bail pending his first trial, he developed a relationship with a lady who is a professional social worker, and who has stood by him with admirable fidelity throughout all three of his subsequent trials.

The prisoner has one natural son who is now aged some 25 years. There is evidence from the prisoner’s sister, herself a health professional, as to the son’s medical and associated personal circumstances. The evidence is contained in the statement which is Exhibit P1 on sentence, and it makes sad reading. Out of consideration for the son’s feelings and privacy, I will not set out here the detail of that evidence. I accept the evidence, and I have tried to give it proper weight for present purposes; but acknowledging that I am very limited in what I can do properly in that connection.

[3] Antecedent good character : This is amply established, both by oral evidence given at trial, and by written material collected as Exhibit P2 on sentence.

[4] Future prospects of rehabilitation : There is no evidence giving reason to apprehend any future offences of the kind now in point. It would be fair to regard the prisoner’s offending as having been wholly out of character. I note as well the consistently favourable prison reports forming part of Exhibit P4 on sentence.

[5] Contrition : There is no concrete evidence of remorse, the prisoner’s stance, as I understand it, continuing to be, simply that he is not guilty of the offence of which the jury found to the contrary.

18 I have had regard to the requirements of sections 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). I have considered, as required by that Act, whether any sentence other than one of full-time imprisonment could be thought to be just in the present case; and I am entirely satisfied that no other type of sentence would be just.

19 I propose to date the sentence now to be passed so that its operation will commence on 7 April 2003, that being the day upon which the prisoner re-entered custody at the conclusion of the charge to the jury.

20 It is necessary, as earlier herein noted, to make proper allowance for pre-sentence custody. I have calculated that custody as follows:

23.7.97 – 31.10.97 3 months 9 days

29.12.99 – 19.7.01 1 year 6 months 21 days

7.5.02 – 14.5.02 7 days

Total 1 year 10 months 3 days

I have caused the above figures to be cross-checked by the relevant Court official with the Department of Corrective Services. I am informed that, according to the Department’s records, the above calculation is correct.

21 During the course of the submissions on sentence, the Crown submitted that the proper period for which allowance should be made is 1 year 11 months 10 days. For the prisoner it was contended that the proper calculation yields a result of 2 years 10 days. I propose to take what seems to me to be a permissibly practical approach and to make an allowance of 2 years on account of pre-sentence custody.

22 When Grove J sentenced the prisoner in the wake of the prisoner’s conviction at his first trial his Honour passed a sentence of imprisonment for 8 years, fixing a non-parole period of 6 years, and declining to find special circumstances in the statutory sense. The Crown submitted in this Court that no more lenient sentence should now be passed upon the prisoner.

23 I have considered that submission but I do not propose to accept and to act upon it. I think that a fair balancing of the relevant objective gravity and of the relevant mitigating subjective circumstances suggest that a head sentence of 7 years would be just. I have in mind in that connection that the prisoner, through no particular fault of his own, has stood three trials, in the second of which the jury could not agree after a long retirement. The personal and emotional stresses and pressures that the sequence of three trials must have imposed upon the prisoner seems to me to require, simply as a matter of common humanity, some amelioration, albeit a modest one, of the head sentence which Grove J thought appropriate at the conclusion of the first trial.

24 The application to a head sentence of the relevant provisions of the Crimes (Sentencing Procedure) Act would yield a non-parole period of 5 years 3 months. I think that it would be appropriate to reduce that non-parole period from 5 years and 3 months to 4 years and 6 months. I would see that reduction as being justified by special circumstances constituted by the fact that the prisoner has not previously served a sentence of full-time imprisonment; and that, although his prospects of rehabilitation appear to be very good, it is in the nature of things that, having served a non-parole period of 4-1/2 years of continuous full-time custody, the prisoner could be expected to require somewhat more, rather than somewhat less, careful monitoring as he re-enters the mainstream of the community.

25 There are two other matters which I consider to be properly treated as special circumstances in the present case. One is the situation of the prisoner’s son. I acknowledge and accept at once that the current state of the law does not permit anything other than a modest general recognition of that unhappy state of affairs; but I think that that state of affairs can be brought properly to account as part of a mix of special circumstances justifying a reduction of 9 months in what would otherwise have been the appropriate non-parole period.

26 The other matter concerns the relationship which appears to be current between the prisoner and his current lady friend. I acknowledge and accept, once again, that it is important that such a consideration not simply overwhelm the other proper considerations, objective and subjective, that are relevant to the setting of sentence. I think, however, that, once again, some sensibly contained attempt not to destroy wilfully such a promising relationship may properly be factored into a mix, the overall effect of which entails a reduction of 9 months in what would otherwise be the statutory non-parole period.

27 It is then necessary to allow for the relevant period of pre-trial custody. As I have earlier explained, I propose to allow a rounded period of 2 years. The end result of that exercise will be a head sentence of 5 years and a non-parole period of 2-1/2 years, both dated to commence on 7 April 2003.

28 Raymond Galea, you are formally convicted of the crime of having been an accessory after the fact to the murder of Christopher Dorrian by Kathy Yeo. You are sentenced to imprisonment for 5 years commencing on 7 April 2003 and expiring on 6 April 2008; with a non-parole period of 2-1/2 years, commencing on 7 April 2003 and expiring on 6 October 2005.

**********

Last Modified: 06/02/2003