Regina v Galante

[2008] NSWSC 319

CITATION:	REGINA v GALANTE [2008] NSWSC 319
HEARING DATE(S):	18 February 2008, 5 March 2008
JUDGMENT DATE :	11 April 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	Non-parole period of 20 years commencing 1 March 2006 and ending on 28 February 2026 and a balance of term of seven years commencing on 1 March 2026 and ending on 28 February 2033.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Sentence
CASES CITED:	R v AJP [2004] NSWCCA 434
PARTIES:	Regina Mark GALANTE
FILE NUMBER(S):	SC 2007/836; 2007/1903
COUNSEL:	Ms E A Wilkins SC (Crown) Ms C T Loukas (Offender)
SOLICITORS:	S C Kavanagh (Crown) S E O'Connor (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Adams J

11 April 2008

2007/836, 2007/1903 – REGINA v GALANTE

SENTENCE

1 HIS HONOUR:

Introduction

2 Jody Galante was murdered by Mark Galante at Bilpin on 7 January 2006. The offender was arrested on 1 March 2006 and, on 18 February 2008 pleaded guilty to the charge of murder.

3 At the time of the offence the offender was 27 years of age and had no prior criminal record.

4 For the purpose of the proceedings an agreed Statement of Facts was tendered, together with other material. The following account is extracted largely from the Statement of Facts though it is necessary also to refer to the offender’s interview with police following his arrest and the statement of one Owen Manton made on the same day.

Factual outline

5 The offender and the victim had known each other since they were teenagers. After some time of being boyfriend and girlfriend they married in 2002 when they were 23 years of age. Their daughter was born in early 2003. There is convincing evidence that, at least by the second half of 2005, the marriage was not a happy one and Jody told a number of persons that she was thinking of leaving the offender, saying at the same time, however, that she loved him too much to do so. She was also worried that she might be unable to take her daughter with her as well. Some time in about mid-October 2005 Jody fell pregnant. Although the offender claimed that Jody had told him that the child was not his, there is no independent evidence either that this was indeed said or that this was the case. I do not need to determine the fact. What is clear however, is that the offender was aware, when he killed Jody, that she was about 3 months pregnant. It was apparent that this pregnancy, at the least, did not instigate the offender’s decision to kill his wife since he first attempted to purchase a handgun in mid-October 2005, offering Owen Manton the very substantial sum (from the offender’s point of view) of $8,000 or $9,000. About two months after the offender’s enquiry, Manton obtained a .22 calibre handgun. The offender saw the weapon at the end of December 2005 and, about a week later, returned to Manton’s home and purchased it and about 20 loose rounds of ammunition for the sum of $9,000 in cash. To put this amount in context, at this time the offender was working from home selling sweets via the Internet without any significant success.

6 The offender’s daughter went to day-care on weekdays and the victim worked full-time during the week in an office. It seems likely that, for some time, the offender was a heavy user of marijuana. There is no suggestion that this played any significant part in the commission of the crime and I mention it only because his use was, I think, a cause of marital discord. If true, it strongly suggests the offender’s unsuitability as a carer for his young daughter. There is evidence that Jody was concerned at what she claimed to be the offender’s increasing use of cannabis and had expressed this to a number of people.

The murder

7 At around midday on 6 January 2006, the offender drove along the Bells Line of Road for the purpose of locating a place where he could kill his wife. He chose a place along a service track at Bilpin. Since this was only a day or so after he bought the gun, it is obvious that the offender had decided to murder his wife well before that time, probably as I have mentioned when he first made inquiries about buying the weapon. Shortly after 10am on 7 January 2006 the offender, his wife and their daughter, who was then 2 years and 10 months old left their home in a car driven by the offender. He drove to the Bells Line of Road and, when they reached Bilpin, turned off onto the dirt service track which he had previously selected. The offender stopped the vehicle and alighted. By some ruse or other he persuaded his wife also to get out of the car. She stood with her back to the offender. He then shot her once in the back of the head. She fell to the ground. The offender said that he did not check to see whether she was dead but, after placing her handbag near the body, simply drove away. (I interpolate that the offender told police that his daughter was in her car seat, asleep, at the time. If Jody was shot at the rear of the car, the child could not have seen what happened. If she saw the shooting, she could not have seen her mother on the ground. There is some reason for thinking from things later said by her to police officers that, indeed, the child did see the shooting but, on balance, I think that this is unlikely. The occasion described by her may well have been another occasion of violence. In the end, the evidence does not enable a conclusion to be reached about this aspect of the case.) Shortly after leaving the scene, the offender threw away the fired cartridge case and the other ammunition. Over the ensuing days, he cut up the gun with a grinder and disposed of the pieces in various locations.

The offender attempts a cover-up

8 At about 4.30pm on the day of the murder, the offender telephoned the Quakers Hill Police Station and reported his wife missing. He told the police officer that he had dropped his wife off at Parklea Markets that morning and that she had failed to telephone him at 1pm to pick her up. He said that he had called her on her mobile telephone but that the calls had gone through to message bank. He added that he had been to the markets to look for his wife but could not find her. The officer suggested that the offender should make some inquiries of his wife’s friends and call back if she had not returned by midnight. At about 11.50pm the offender telephoned the police station again and spoke to another officer, again reporting that his wife was missing. Over the ensuing days he entered into an elaborate cover-up, the essence of which was to maintain that Jody had disappeared. He went so far as to participate in a press conference on 11 January 2006 to request the assistance of the public to locate the victim.

The offender’s arrest

9 It is evident that the police had suspicions about the offender and a number of crime scene warrants were executed at his home. On 14 January 2006 female officers attended the offender’s home and, amongst other things, had the conversation with the offender’s daughter to which I have briefly referred, when the child said several things which indicated that she had witnessed her father hurting her mother. For obvious reasons police did not question the child further, though I think it is likely that this conversation confirmed their suspicions of the offender.

10 On 14 January 2006 the offender took part in a “re-enactment” at Parklea Markets with police to canvass the public about whether anyone had seen Jody on the day of her disappearance. As it happened, her body was discovered at about 10am on that day by the New South Wales Police Air Wing. It had not been interfered with and there had been no attempt to conceal it. Her handbag, personal belongings and jewellery were intact. A post-mortem examination revealed that the victim had suffered a single fatal gunshot wound to the back of the head and a .22 calibre bullet was recovered during the examination. There were no other suspicious injuries. She was 3 months pregnant.

11 On 14 January 2006, following the discovery of Jody’s body, the offender was interviewed by police. He repeated the version of events which he had previously given when notifying police of his wife’s disappearance. He denied travelling to the Blue Mountains and stated that he was the only person who had access to the family car and denied killing his wife. He said other things to the police concerning the relationship with his wife; he admitted that he had sexual relationships outside the marriage and there is some corroboration for this. I am unable to determine whether his description of the nature of their domestic relationship is true, but I am sceptical about a number of his assertions. Since, even if those assertions were truthful, they would not affect the gravity of the offender’s crime one way or another, it is unnecessary for me to consider them further. The airing of possibilities which are both speculative and irrelevant for the purpose of sentencing the offender serves no purpose and may unnecessarily cause distress to family members.

12 On 1 March 2006, the police induced Mr Manton to speak with the offender in a conversation which could be electronically recorded. During that conversation the offender told Mr Manton, in effect, that he had used the gun to kill his wife. Shortly after this, as I understand it, the offender was arrested and charged. He then participated in a recorded interview with police during which he admitted killing his wife and gave details of what had happened. These details have the ring of truth about them and I am satisfied that, in respect of these matters at least, the offender was being candid. I infer from what the offender said that the reason for the murder was that Jody was going to leave him and take their daughter with her. The offender was – perhaps genuinely – emotionally affected when he told police what had happened and, as he gave this interview at a time before he became aware that his conversation with Mr Manton had been recorded, it affords some evidence of contrition, given that, except for Mr Manton’s evidence, there was only a slight circumstantial case against him as he must have known.

13 The offender’s home was, I expect, jointly owned and, as it was subject to a mortgage, he and his wife had life insurance policies through the Westpac Bank. The offender stood to gain almost $600,000 in insurance on the death of his wife and complete ownership of the house. There is a strong suspicion that these considerations were part of, even if not the entire reasons, for the offender’s decision to commit the murder. However, the evidence does not permit me to draw this conclusion beyond reasonable doubt.

Subjective features

14 The offender’s personal history is set out in detail in the report obtained on his behalf from Ms Anna Robilliard, a highly experienced forensic psychologist. The offender was born in Blacktown, Sydney. He has one brother. His upbringing was unremarkable. Possibly due to conflict with his father over discipline, he left home when he was about 16 years of age, at which time he also left school. He obtained immediate employment. Although he changed a few jobs, he eventually got a position as an electrical technician and remained in that employment for 6 years to about the age of 23. It appears that he had a motorcycle accident in May 2002 which caused some head injury. When he returned to work he found, he says, that he could no longer cope because it seemed “too technical”. However, there is no evidence before me of any continuing disability. The offender worked in a number of positions, ultimately attempting to run a confectionary distribution business from home. I have already mentioned the offender’s substantial use of marijuana. Ms Robilliard’s report refers to several psychometric tests which were undertaken by the offender. His intelligence was measured as squarely in the average range. The personality test described a combination of attributes likely to be found in a “socially and interpersonally disengaged individual” who has limited awareness and insight into the meaning of interpersonal behaviour and relationship dynamics generally together with an antisocial disposition highlighting “the individual’s capacity for insensitive, callous acting out and a lack of respect or regard for the rights and integrity of others, and often for themselves”. These attributes are certainly present in the offender’s commission of the crime, which was a callous, cold-blooded execution, all the more because he was aware that his wife was pregnant at the time. In addition to his indifference to the suffering he inflicted on Jody’s family, is the inevitable effect on the well-being of their daughter. Ms Robilliard reported that the offender expressed remorse. It appears, however, that this was not entirely unprompted and, to some degree, may have been calculated.

15 The psychometric testing appears to demonstrate that the offender has limited understanding of the moral and personal dimensions of his actions. As I understand the report, the offender may have felt depressed at the time of the murder – perhaps partly the result of his marijuana use – and was certainly so depressed at the time he was placed on remand as to require medication. This feature does not mitigate the crime.

16 It is difficult to assess the prospects for the offender’s rehabilitation. The calculated, callous nature of the crime and the insights into his character that its commission implies, together with what I think is his limited remorse – though I note that his ability to express remorse genuinely felt might be limited – suggest that the offender’s prospects for rehabilitation are not good. On the other hand, this crime occurred in a particular and specific domestic situation which – given the sentence which I am minded to impose – is unlikely to occur again. One of the reasons for this conclusion is that I think that the fact that his wife intended to leave him and, more importantly, to take their daughter with her was his prime motive. This does not, to my mind, significantly mitigate his offence but it does justify the conclusion that, to a substantial degree, the risk of re-offending is not great. This is not to say of course that it is non-existent, nor that it should be left out of account in sentencing the offender.

17 Evidence was tendered concerning the nature of the incarceration undergone by the offender during his remand, in which he has been held in protective custody. Whilst on remand, the conditions of imprisonment are somewhat more harsh in several respects than those applying to sentenced prisoners and I have made slight adjustment for this reason. I accept that it is likely that the offender will spend a significant part of his custody on protection. The evidence does not permit me to conclude that this will result – on the assumption that it occurs – in a significant degree of greater harshness than would be undergone by the ordinary run of prisoner and, accordingly, I have not taken this matter into account.

The Victim Impact Statements

18 On the sentencing hearing victim impact statements were read by Julie Hand, Jody’s mother, Tina Good, her sister, Mr Colin Pomery, her brother and that of Mr J Robb, her grandfather was read. These statements speak eloquently of the wonderful person whose death they mourn and of the anguish and pain and grief they have suffered and, it cannot be doubted, will continue to suffer.

19 It is important to understand, however, that by permitting victim impact statements to be received in a hearing such as this, the law does not thereby place them in the scales of justice to be weighed by the Court in determining sentence. The taking of a life is the gravest injury known to the criminal law. It cannot be made more serious because the victim’s death is the cause of pain or grief to others, however great. The life of one person cannot be regarded as more valuable than the life of another, or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. It would be wrong to take one day from an otherwise appropriate sentence for unlawful killing because the deceased was selfish or obnoxious or without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was kind and generous, or his or her death caused pain and grief to a loving family. If this were not so, counsel for the killer could argue that, as the victim was unlovely or unloved, his or her murder mattered less and the sentence should be more lenient, and the Crown Prosecutor, by pointing to the goodness of the deceased, the grieving family, angry onlookers, or an indignant media, argue that the penalty should be more severe. To do this would undermine the moral standards essential to the maintenance of the administration of justice. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by an indifferent public would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process.

20 For these reasons, although it is entirely proper that Jody’s kith and kin should be able in this place to express their feelings of grief and loss at her sad and tragic death, the Court cannot take this into account in sentencing the offender.

Discussion

21 Perhaps more difficult to accept but also crucial to the due administration of criminal justice is the notion that the value that the law ascribes to the life which has been taken and the gravity of the crime that caused it arises from and reflects a sense of reason and humanity which must also value the lives of the persons who come before the courts for punishment. The punishment imposed by the courts is measured not by the standards of the criminal but by our standards as a civilised and humane community, not because of what we owe the offender but because of what we owe ourselves. It follows that sentences must be no longer than is strictly necessary to vindicate the purposes of the criminal law.

22 I have been referred to a number of cases and have been provided with a table of over eighty sentences, mostly imposed in the last decade, in what can be described as relationship homicides. Sentencing is not carried out in isolation. Not only is it far too difficult for that but it is necessary, so far as is possible, to develop and maintain a broadly coherent system of sentences for particular crimes because of the fundamental importance of the principle of equal justice. Consistency in sentencing is also important, lest punishment be seen as, or become, capricious or arbitrary. I have looked for and found assistance in what has been done by my judicial colleagues in circumstances that differ, of course, from the present case, but nevertheless informs the application of the principles of sentencing jurisprudence in cases of this kind and the range of sentences that it has been thought appropriate to impose.

23 An important matter to consider in the present case is whether it falls within the mid-range of objective seriousness for the purposes of the provisions of Div 1A of the Crimes (Sentencing Procedure) Act 1999 concerning the application of standard non-parole periods. For an offence of murder falling within the relevant range, the standard non-parole period is 20 years. As I have mentioned, the offender pleaded guilty and, accordingly, the standard non-parole period is to be considered, together with all the other relevant features of the case, as a guidepost or indication which, applying to a case in the middle of the range of objective seriousness, inform the sentencing discretion in respect of the particular case under consideration. In undertaking this task, the Courts have been directed to hypothesise an abstract case in the middle of the range of objective seriousness to use as a comparator. I have found this to be a difficult task. There are a number of hypothetical features that, had they been present, might have put this case in a class of lesser culpability: for example, if the offender had acted impulsively and the shooting been a relatively unpremeditated act, or had there been no intention to kill; while other hypothetical features might have made it more serious than the middle range, for example if the murder was a contract killing by a person in that business or associated with deliberate acts of cruelty or terror; in other cases, the killing of a police officer in the course of his or her duty, or of a witness to a crime make it more serious than the middle of the range case. This list is not intended to be by any means exhaustive, of course, but simply to exemplify the considerations which might, one way or other, render a case more or less objectively serious.

24 Here, the murder was a calculated, cold-blooded murder by a husband of his pregnant wife because she wanted to leave him and take their daughter with her. It is certainly a very grave crime and much worse than most crimes. But so is virtually every murder.

25 Applying the view expressed by Simpson J in R v AJP [2004] NSWCCA 434 at [13] –

“The exercise of hypothesizing an abstract offence in the middle of the range of objective seriousness is, in reality, little different from the traditional sentencing exercise of evaluating the objective seriousness of any offence, and should be approached intuitively based upon the general experience of courts in sentencing for the particular offence “

I have concluded that the objective seriousness of the offence is somewhat greater than the middle of the range of objective seriousness of the crime of murder, mainly because of the callous calculation with which it was committed. Accordingly, the sentence which I impose should take into account the legislative indication of a standard non-parole period of 20 years. Although I have paid considerable attention to the standard non-parole period, it is important to note that it is not and cannot be determinative of the appropriate sentence. It is but one of the material considerations and it should not be regarded as a fulcrum upon which other matters are balanced on one side or another. Amongst other considerations are the range of sentences imposed in the cases to which I have referred and my own instinctive judgment of the level of appropriate punishment. It is necessary also to take into account the subjective features of the offender who has no prior offences and has exhibited some remorse and, as experience has shown in cases of long sentences, some prospects of rehabilitation.

26 In respect of the offender’s plea of guilty, a utilitarian discount of ten per cent should apply. The plea was entered very close to the commencement of the trial which I do not think would have been unduly complex or lengthy though I have no doubt that it must have been distressing to members of the victim’s family. So far as special circumstances are concerned, for the purpose of considering whether the statutory ratio referred to in s44 of the Crimes (Sentencing Procedure) Act 1999 should be varied, the sentence which I intend to impose carries with it such a potential period of parole that, on the assumption that the offender is released to parole on or within a reasonable time of the expiration of his non-parole period, is sufficient in my view to provide adequate opportunity for supervision following his release.

27 Taking into account the objective features of the offender’s crime and the subjective matters to which I have referred, the requirements of denunciation and retribution, and the need for both personal and general deterrence, the appropriate overall sentence before the application of the utilitarian discount is 30 years. Adjusting for the utilitarian discount results in a sentence of 27 years. Applying the statutory ratio in s44 of the Crimes (Sentencing Procedure) Act 1995 yields (rounding down) a non-parole period of 20 years, after which the offender will be entitled to be considered for release on parole. Whether he is then released will be a matter for the Parole Board.

Sentence

28 The offender has been in custody since 1 March 2006 and, accordingly, the sentence must commence on that date. The offender is sentenced to a non-parole period of 20 years commencing 1 March 2006 and ending on 28 February 2026 and a balance of term of seven years commencing on 1 March 2026 and ending on 28 February 2033. The first date on which the offender will be eligible to be released on parole is 1 March 2026.

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