REGINA v GAGALOWICZ [2005] NSWSC 675

New South Wales Supreme Court

CITATION : REGINA v GAGALOWICZ [2005] NSWSC 675

HEARING DATE(S) : 04/04/05, 05/04/05, 06/04/05, 07/04/05, 08/04/05, 10/06/05

JUDGMENT DATE : 8 July 2005

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

DECISION : The overall sentence imposed is one of eight years imprisonment, comprising a non-parole period of four years to commence on 19 April 2003 and expire on 18 April 2007 and the balance of the term commencing 19 April 2007 and expiring 18 April 2011.

CATCHWORDS : Sentence - manslaughter - substantial impairment - drug induced psychosis - victim impact statements - that victim was drug dealer irrelevant - significance of youghfulness of offender

LEGISLATION CITED : Crimes Act 1900 s23A

Hearne 124 A Crim R at 438 CASES CITED : R v AO (2003) 138 A Crim R 189 Veen v The Queen (No 2) (1988) 164 CLR 465

Regina

PARTIES : v

Matthew GAGALOWICZ

FILE NUMBER(S) : SC 2004/8

Mr Paul Conlon SC (Crown) COUNSEL : Mr David Campbell SC (Offender)

S C Kavanagh (Crown) SOLICITORS : Mr M Manwaring (Campbell Paton & Taylor) Offender

LOWER COURT JURISDICTION :

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

ADAMS J

FRIDAY 8 JULY 2005

2004/8 REGINA v MATTHEW GAGALOWICZ

JUDGMENT

1 HIS HONOUR: In mid-February 2003, Ricky Mark Smith was killed by Matthew Gagalowicz. The offender was charged with murder and, when arraigned on 4 April 2005, pleaded not guilty to that charge but guilty of manslaughter. On 8 April 2005 the jury acquitted him of the murder of Mr Smith and convicted him of manslaughter. As is evident from the plea, the offender did not dispute – indeed, he never disputed – that he killed the deceased. The questions of substance in the trial were whether the Crown had established that, when the offender killed the deceased, he intended either to kill him or cause him grievous bodily harm or, these intentions having been proved, whether the offender established that, at the time he killed the deceased, his capacity to understand events or judge whether his actions were right or wrong or to control himself was impaired by an abnormality of mind arising from an underlying condition, which impairment was so substantial as to warrant reducing his liability for murder to manslaughter. 2 Having regard to the jury's verdict it is necessary for me to determine whether the offender should be sentenced upon the basis that, at the relevant time, he lacked the relevant intent and should be sentenced upon the basis that his killing of the deceased was caused by an unlawful and dangerous act or, on the other hand, whether he intended to cause death or grievous bodily harm but the impairment of his mind was so substantial as to warrant his conviction for manslaughter rather than murder. I will deal with this question in due course.