R v Gittany (No 5) [2014] NSWSC 49 11 February 2014


Last Updated: 14 February 2014

This in the final Judgement after sentencing

 JUDGMENT

  1. HER HONOUR: On 27 November 2013, Simon Gittany was found guilty of the murder of Lisa Cecilia Harnum after a trial by judge alone: R v Gittany (No 4) [2013] NSWSC 1737. He now stands to be sentenced for that offence.
  2. The maximum penalty for the offence of murder is imprisonment for life: s 19A(1) of the Crimes Act 1900. A person sentenced to imprisonment for life under that section must serve the sentence for the term of the person’s natural life: s 19A(2) of the Act. A life sentence is the sentencing option reserved for the worst class of case (and see s 61 of the Crimes (Sentencing Procedure) Act 1999). The Crown did not suggest that should be the sentence imposed in the present case. I consider that a sentence for the term of Mr Gittany’s natural life would be excessive in all the circumstances.
  3. The offence of murder carries a standard non-parole period of 20 years: s 54A of the Crimes (Sentencing Procedure) Act. The non-parole period is the period during which a prisoner has no entitlement to be released on parole. Parliament has not prescribed a “standard non-parole period” for every criminal offence. For those offences for which a standard non-parole period is prescribed, that period offers Parliament’s guidance to the Court as to the non-parole period for a hypothetical offence in “the middle of the range of seriousness” taking into account only the objective features of the offence: see s 54A of the Crimes (Sentencing Procedure) Act; Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [27]. The force of that guidance varies from case to case, depending on the other considerations relevant to the exercise of the sentencing discretion.
  4. The High Court has made it clear in Muldrock that it is not appropriate for the Court to take the standard non-parole period as a starting point and then to inquire whether there are reasons for departing from it. However, it must be taken into account as one of the factors relevant to the determination of an appropriate sentence.
  5. The circumstances of the offence are set out in detail in the judgment on verdict. Mr Gittany must be sentenced on the basis of the facts found in that judgment, to the extent that they are relevant to the sentencing task. Any additional findings of fact required to be made for the purpose of sentencing must be consistent with those findings. Any matters going to aggravation of the appropriate penalty must be established by the Crown beyond reasonable doubt, while any matters going to mitigation must be established by Mr Gittany on the balance of probabilities: R v Olbrich (1998) 45 NSWLR 538 at 543A per Spigelman CJ; Newman and Sperling JJ agreeing.
  6. The facts found in support of the verdict may be summarised as follows. Mr Gittany and Ms Harnum lived together in a de facto relationship from some time in early 2010. In about September or October of that year, they moved into an apartment on the 15th floor of a block of apartments in Liverpool Street, Sydney known as The Hyde. Their relationship was at times loving and happy but it was also tumultuous. Mr Gittany was a jealous and possessive partner. By December 2010, Ms Harnum was being subjected to a degree of scrutiny and direction from him that was overbearing.
  7. The relationship continued to be volatile after that time. As a couple, Ms Harnum and Mr Gittany appeared at times happy and confident of a future together; at times they were in bitter dispute, each considering separation. Ms Harnum took practical steps towards leaving the relationship on several occasions. By the end of June 2011 she had, within the same month, accepted Mr Gittany’s proposal of marriage (at a large family gathering in a restaurant) and made firm arrangements to move to Melbourne without him. Whilst Mr Gittany was undoubtedly caring and attentive towards Ms Harnum in some ways, he sought throughout their relationship to deprive her of any real autonomy. He scrutinised her conduct both openly and covertly, keeping track of her movements with surveillance cameras installed in their unit and secretly monitoring her mobile telephone with spying software he had installed without her knowledge.
  8. In the judgment on verdict, I expressed my conclusion as to their relationship in the following terms (at [212]):

I do not think there can be any doubt that the accused was controlling, dominating and at times abusive. The force of his jealous and controlling personality met mixed resistance from Lisa Harnum, who was at times defiant, at times submissive to an inexplicable degree. I am satisfied that, by the end of July 2011, those tensions had reached a point of crisis. The accused’s sense of right to control Lisa Harnum was itself sliding out of control and she in turn was galvanising herself for a resolution of some kind.

  1. By July 2011, an eating disorder from which Ms Harnum had suffered as a teenager had returned. She sought the assistance of a personal trainer and a counsellor to assist her in overcoming that condition. She spoke to them about her love for Mr Gittany and her desire to have a baby with him but also about her unhappiness in the relationship. Her conversations with the counsellor quickly turned to the prospect and the practicalities of her leaving Mr Gittany.
  2. A few days before her death, Ms Harnum packed some bags of clothes and gave them to the personal trainer to mind. By secretly reading her SMS messages, Mr Gittany became aware that she had done so. He confronted her with that information but lied as to how he had obtained it, giving her to believe that the personal trainer had betrayed her trust. He rang the counsellor and abused and threatened her. He then berated Ms Harnum in the sternest terms, making her kneel before him while he yelled at her that she was to do as she was told.
  3. On the evening of 29 July 2010 and early the following morning, Ms Harnum spoke at length with her mother in Canada about leaving Mr Gittany. They made arrangements for her mother to come to Australia to help her return to Canada. Mr Gittany became aware of those arrangements and Ms Harnum in turn became aware of at least some aspects of his covert surveillance of her. Each was extremely upset with the other. It appears that they each decided at some point that evening that they should separate.
  4. During the night, Ms Harnum packed her belongings. On the morning of 30 July 2011, she was ready to leave. According to Mr Gittany, his heart was still not at peace with the break-up. He tried to discuss that with Ms Harnum but she insisted that she was leaving.
  5. Mr Gittany is the only eye-witness to what transpired inside the apartment that morning. As indicated in the judgment on verdict, I did not accept his version of events. What is known from the objective evidence is that, shortly before 10 am, Ms Harnum tried to leave the apartment by the front door carrying only her handbag, without her passport. She was heading for the lift. Mr Gittany physically restrained her, placing his hand over her mouth and dragging her back into the apartment. That incident was captured on closed-circuit television footage. At some point around the same time, Ms Harnum banged on the door of the neighbouring apartment and screamed for help.
  6. Sixty-nine seconds after being dragged back into the apartment by Mr Gittany, Lisa Harnum fell to her death from the balcony of the apartment. In the judgment on verdict, I stated that I could not know exactly what happened during that minute or so but that it was likely, based on eye-witness observations of Ms Harnum at the time she was put over the railing and during her fall, that she was unconscious by that time. I was satisfied beyond reasonable doubt that, in a state of rage, Mr Gittany carried her body to the balcony and, as it was described during the trial, “unloaded” her over the edge.
  7. An important task for the purpose of determining the appropriate sentence is to assess the objective seriousness of the offence. Although the provisions dealing with standard non-parole periods posit a notional range of objective seriousness, it is not necessary to classify the offence by reference to any such range: Muldrock at [25] and [29]. However, it remains important to make some evaluation of the nature of the offending and to assess the degree of moral culpability entailed.
  8. It is necessary to make some further findings of fact for that purpose. The first is to determine the state of mind in which Mr Gittany committed the act of throwing or unloading Ms Harnum’s body over the balcony. In the verdict on judgment (at [4]) I accepted the Crown’s submission that, having regard to the nature of the physical act committed by Mr Gittany, that act must have been done with the intention of either killing Ms Harnum or inflicting grievous bodily harm on her. For the purpose of determining the appropriate sentence, it is necessary to determine which of those states of mind existed.
  9. On the basis of my inspection of the balcony during the course of the trial, and in particular its height from the ground below, I am satisfied beyond reasonable doubt that the act of unloading the body from that height can only have been done with the intention of killing Ms Harnum.
  10. It is also relevant to consider the degree of suffering inflicted on Ms Harnum before she died. It follows from my conclusion as to her state of consciousness that she was probably not aware of being thrown over the balcony. Accordingly, even though the combination of height and gravity may be regarded as a weapon of sorts, I think it would be wrong to regard the offence as being aggravated on that account. However, I am satisfied that Ms Harnum must nonetheless have been in a state of complete terror in the last moments before her death. That is clear from the things she said to her mother during their last conversation, the video footage of her attempt to leave the apartment by the front door and the chilling account given by the neighbours of her screams for help as she banged on the door of their apartment.
  11. A further issue relevant to sentencing is to determine whether the killing was in any way planned or premeditated. The Crown did not suggest that Mr Gittany made a decision to kill Ms Harnum at any point prior to the day of her death. However, at the proceedings on sentence, the Crown sought to establish that Mr Gittany had long had in mind the possibility of committing such an act, and making it look like suicide, in the event of her leaving him.
  12. To that end, the Crown called a new witness (not called at the trial) to give evidence of things said to her by Ms Harnum in early 2010. The evidence was objected to by Mr Strickland on behalf of Mr Gittany. In determining the objection, I considered it appropriate to make a direction that the law of evidence would apply in relation to the new witness (the Evidence Act 1995 does not otherwise apply during sentencing proceedings: see s 4(2)(b)) of the Act).
  13. The new witness met Ms Harnum during the period when Ms Harnum was employed as a receptionist at a hairdressing college in Bondi Junction. The witness was enrolled in a course at the college. The period of overlap between Ms Harnum’s employment and the witness’s course was some two months, from mid-February to mid-April 2010. The evidence at the trial was unclear as to precisely when Ms Harnum’s relationship with Mr Gittany started except that it was some time in early 2010.
  14. The witness said that her acquaintance with Ms Harnum became a close friendship but only within the college. She said that they talked at length about Ms Harnum’s relationship with her partner. The witness recalled that his name was Simon. In broad summary, the effect of the evidence was that the partner, Simon, was very controlling, watching Ms Harnum all the time, reading her messages, recording her activities on camera, telling her what to do and who she could talk to and demanding to know where she was at all times. The witness said Ms Harnum had told her that Simon said he would kill her if she left him and that he would make it look like suicide.
  15. The evidence was taken on the voir dire (which means it was heard in the first instance only for the purpose of determining whether it should be admitted).
  16. I determined that I had to exclude the evidence at this late stage of the proceedings. It may well have been admissible if brought forward during the Crown case at trial. However, the witness did not come forward until after the close of the Crown case. That was due in part to an assumption she had previously made as to the relative unimportance of what she knew combined with an understandable reluctance to become involved in the case.
  17. After reading about evidence in the trial concerning a missing hard drive, the witness became concerned that her evidence might be more important than she initially thought (for accuracy, it should be recorded that the hard drive which was subject of evidence in the trial could not in fact have provided evidence of any of the matters dealt with in the evidence of the witness, since it was not installed until a later point in time).
  18. No criticism could fairly be directed at either the witness or the Crown in respect of the timing of her coming forward. The simple result, however, was that the evidence had to be excluded.
  19. It is well established that, after a trial by jury, the judge has a duty to determine the facts relevant to sentencing. The power to do so, however, is not unconstrained. The proper approach was considered by the Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374. The Court noted that some of the facts relevant to sentencing will have emerged in evidence at the trial while others may emerge only in the course of the sentencing proceedings. The Court stated that the primary constraint upon the power to determine facts relevant to sentencing beyond those that have emerged at the trial is that the view of the facts adopted by the judge for the purposes of sentencing must be consistent with the verdict of the jury.
  20. There is no warrant in principle for adopting a different approach where the verdict has been reached after a trial by a judge alone, notwithstanding the fact that, in that event, the tribunal of fact is the same for both purposes. In my view, the requirement for consistency between the facts found at trial and at sentence is to be seen as an aspect of the principle of finality. An accused person is entitled to a trial on the issues brought forward by the Crown. To the extent that the verdict determines those issues, they are to be seen as having been determined finally (subject to any appeal).
  21. It does not necessarily follow that evidence of the kind given by the new witness in the present case must always be excluded. Mr Strickland submitted that part of the evidence was inadmissible as a matter of law, citing the decision of the Court of Criminal Appeal in JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466.
  22. In that case, the offender had pleaded guilty to four sexual offences on the agreed basis that the charges were representative of a number of similar incidents over a period of time. The issue was whether the offender’s general admission as to conduct beyond the four counts on the indictment could be taken into account as a circumstance of aggravation of the offences charged. The Court cited with approval a decision of the Court of Appeal in England to the effect that, absent an admission, the Court should not take into account the commission of other offences when sentencing for particular offences charged (at [55] per Spigelman CJ; Ireland and Simpson JJ agreeing at [113] and [132] respectively; see also R v Abrahams [2013] NSWSC 952 from [61] to [67]).
  23. The principle established by those authorities is that an accused person is entitled to a trial and cannot lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit.
  24. Mr Strickland submitted that part of the evidence of the new witness in the present case amounted to evidence of offences of threatening to kill Ms Harnum in early 2010. He submitted that, in accordance with the principle considered in JCW, the Court could not take that evidence into account because to do so would deprive the offender of a trial for those offences.
  25. The analogy between the principle considered in JCW and the issue that arises in the present case is not perfect. The evidence of the new witness is not relied upon to establish that the seriousness of the offence for which Mr Gittany has been convicted is aggravated by his commission of other offences. It is put as being relevant to a discrete issue that arises for determination as one of the facts relevant to sentencing, namely, whether Mr Gittany turned his mind to the prospect of killing Ms Harnum and the manner in which he might do so any earlier than within the 69 seconds before she fell to her death. I would not go so far as to hold that evidence that is relevant to a discrete issue required to be determined for the purpose of sentencing must necessarily be excluded where it is capable of establishing the commission of an offence other than the offence charged. However, considerations of fairness and the finality of the verdict reached after a trial on the issues raised would ordinarily militate strongly against that course.
  26. In any event, it was not necessary for me to determine those issues of legal principle in the present case. After hearing the evidence, I concluded that its probative value was outweighed by the danger of unfair prejudice to Mr Gittany. In recording that conclusion, I emphasise that I did not have any doubt as to the honesty of the witness. Mr Strickland put to her that her evidence was a total fabrication. With great respect to Mr Strickland, I saw no merit in that challenge to her evidence. The witness struck me as being completely honest. However, I saw real prejudice in requiring the offender to meet the evidence at this late stage of the proceedings, after the conclusion of a lengthy, complex and hard-fought trial.
  27. The admission of the evidence at this stage would have undermined Mr Gittany’s entitlement to a fair trial conducted on the issues brought forward by the Crown. In particular, it would have resulted in an unanticipated truncation of forensic decisions. The new evidence raised at least two issues of fact which were either not important or not addressed at all during the trial. The first was the precise date on which Ms Harnum and Mr Gittany commenced their relationship, which was addressed, but not with the specificity rendered necessary by the new evidence. The second was whether Mr Gittany had any form of camera which he could use to record Ms Harnum’s movements at their first apartment. That issue was not the subject of any evidence at the trial apart from the existence of video footage evidently taken by Mr Gittany with a hand-held camera during that time. The evidence of surveillance cameras at the trial related only to The Hyde, which was the second apartment they occupied together.
  28. Further, I considered it doubtful whether the evidence could fairly be admitted for the purpose for which it was evidently tendered. The Crown relied upon it as evidence of “verbal acts” (T12 of 5.2.14). In other words, the evidence was relied upon, not as to the truth of the words said but to prove the fact that the words were said by Mr Gittany to Ms Harnum, which in turn was put as being relevant to his alleged exercise of control or domination over her: R v Gittany (No 2) [2013] NSWSC 1599 at [21]. That is no longer a fact in issue. The Crown evidently relied upon the new evidence for the separate purpose of proving Mr Gittany’s state of mind on the basis that, in saying those words, he must have turned his mind to the prospect of one day killing Ms Harnum and making it look like suicide. The distinction between the hearsay purpose and the non-hearsay purpose is not easily drawn in that context.
  29. For those reasons, I concluded that the probative value of the evidence was outweighed by the danger that it might be unfairly prejudicial to Mr Gittany. It follows that the evidence had to be excluded under s 137 of the Evidence Act.
  30. However, it does not follow from the exclusion of the new evidence that Mr Gittany’s intention to kill Ms Harnum must be characterised as being completely spontaneous. The task of assessing his state of mind and the degree of his moral culpability is more complex than that. The evidence at trial revealed that, during the relationship, Mr Gittany engaged in an extraordinary degree of manipulative behaviour ultimately directed to sublimating Ms Harnum’s will to his own. Small acts of defiance such as daring to wear her hair down were met with trenchant abuse.
  31. It is of course important to bear in mind that Mr Gittany does not stand before this Court to be punished for his conduct throughout the relationship, nor does that conduct aggravate the offence. But it does inform the state of mind in which he committed the offence. I cannot be satisfied on the evidence that Mr Gittany formed an intention to kill Ms Harnum at any point earlier than the short moments before her death, or that the offence was planned or premeditated in the traditional sense. However, I am satisfied that he must have anticipated the prospect that he would fly into a rage if ever she were to leave him. The evidence as to his conduct in the days leading up to her death reveals that he considered himself to be entitled to express a measure of rage in that event.
  32. In my view, that history informs the degree of moral culpability of the offence. The arrogance and sense of entitlement with which Mr Gittany sought to control Lisa Harnum throughout their relationship deny the characterisation of his state of mind in killing her as one of complete and unexpected spontaneity. By an attritional process, he allowed possessiveness and insecurity to overwhelm the most basic respect for her right to live her life as she chose. Although I accept that the intention to kill was formed suddenly and in a state of rage, it was facilitated by a sense of ownership and a lack of any true respect for the autonomy of the woman he claimed to love.
  33. A further issue raised by the Crown was whether the offence was premeditated to the limited extent that, in choosing a fall from height as the method of killing Ms Harnum, Mr Gittany planned in advance to portray her death as suicide. Whilst I accept that as a possibility, I cannot be persuaded of it beyond reasonable doubt. Without knowing precisely what happened in the apartment that morning, I cannot exclude the reasonable possibility that Mr Gittany simply flew into a rage and acted without thinking.
  34. Separately, the Crown submitted that certain remarks made by Mr Gittany to police should be construed as an attempt after the event to portray Lisa Harnum’s death as suicide. I accept, as submitted by Mr Strickland, that those remarks should not be treated as being anything more than a denial of guilt. They should not be regarded as a factor of aggravation.
  35. The Crown accepted that the objective seriousness of the offence committed by Mr Gittany is not above the middle of the notional range, having regard to the fact that the murder was not premeditated or planned. However, as submitted by the Crown, the offence is of sufficient seriousness that the standard non-parole period of twenty years should be regarded as a strong guide in the present case.
  36. It is necessary to consider Mr Gittany’s personal circumstances. Evidence as to his background and character was placed before the Court in the form of a report prepared by a psychologist, Ms Anna Robilliard (exhibit 2). Mr Gittany also gave evidence at the proceedings on sentence. He was not challenged as to the content of Ms Robilliard’s report. It is convenient to summarise his personal circumstances by reference to that document.
  37. Mr Gittany is aged 40. He is one of six children raised in Sydney after his parents emigrated from Lebanon. He had a stable, caring upbringing and the family is described by Ms Robilliard as being “close knit”. He completed the Higher School Certificate and subsequently obtained work as a tiler while undertaking a TAFE training course which he did not complete. He told Ms Robilliard that he continued working as a tiler but did not generally remain in any particular job for more than about six months. Between periods of employment he stayed at home. His parents did not expect him to pay rent and his mother did everything for him. He told Ms Robilliard that it was “like living in a hotel”.
  38. At the age of 18 Mr Gittany was convicted of an offence of assault occasioning actual bodily harm. He was released on a good behaviour bond. No details as to the circumstances of that offence were placed before me.
  39. At the age of 21 Mr Gittany was convicted of offences of receiving stolen property (two offences), assaulting a police officer in the execution of his duty and malicious wounding. He was sentenced to periods of imprisonment totalling 2½ years to be served by way of periodic detention. A Crown appeal against the leniency of those sentences was dismissed: R v Gittany, NSWCCA, 2 August 1995, unreported.
  40. The circumstances of those offences were that on 13 October 1993, Mr Gittany had failed to appear at Parramatta Local Court in relation to the two charges of receiving. Bench warrants had issued for his arrest. On 23 March 1994, two police officers attended his home to execute the warrants. The judgment of the Court of Criminal Appeal records the following:

on being told the purpose of the visit [Mr Gittany] became agitated and a struggle ensued involving both officers, [Mr Gittany], his mother and sister. During the struggle [Mr Gittany] bit Detective Constable Bristow on the ear severing a portion of it.

  1. The central matter placed before the sentencing judge to mitigate the clear seriousness of that offence was that Mr Gittany had undergone what was referred to as a “conversion”. Mr Gittany gave evidence on sentence that he had become committed to his religion and had decided to enter religious life in the future. The Court of Criminal Appeal said:

not unnaturally the learned sentencing judge regarded this transformation in the respondent as somewhat magical, and he approached it with considerable scepticism.

  1. However, a report from a probation officer evidently persuaded the sentencing judge that the conversion to religion and the associated change in lifestyle were genuine. The Court of Criminal Appeal considered that it was open to the sentencing judge to conclude that the conversion was not the product of a conscious effort to fabricate a case for leniency. On that basis, the Crown appeal was dismissed: per Cole JA; Allan and RS Hulme JJ agreeing.
  2. The offender pursued his stated goal of entering a life of religion, joining a Catholic order in France in his early 20’s. However, Ms Robilliard’s report records that he decided it was “not his calling”. He returned to Australia before completing his noviciate.
  3. In 2001, which appears to have been after he returned from his period of religious training, Mr Gittany was convicted of offences of supplying a prohibited drug (55 ecstasy tablets) and having goods in his custody reasonably suspected of being stolen (the sum of about $5,200).
  4. Ms Robilliard records that Mr Gittany subsequently worked as a waiter and for a company doing bathroom renovations. He told her that he then became interested in dramatic arts and undertook private training for 12 months at the Australian Academy of Dramatic Arts using money his parents had banked for him. He said that he could not complete that course because of the expense but that it taught him to present himself well and with confidence.
  5. Mr Gittany told Ms Robilliard that, during his 30’s, he worked for three years as an advertising account manager for the Sydney Morning Herald, for 18 months for a company called Reach Local and that, for six months prior to his arrest and imprisonment, he had been working for Job Search assisting people having difficulty finding employment. There was no evidence presented during the trial as to Mr Gittany being employed during that period. His evidence was that he was setting up a business.
  6. Ms Robilliard assessed Mr Gittany’s physical and mental health. It was not submitted that her report establishes the existence of any physical or mental condition relevant to an assessment of the seriousness of the offence. The report establishes that Mr Gittany is suffering from reactive depression as a result of his current incarceration. Sadly (but not surprisingly), that is not an uncommon condition among prisoners.
  7. A personality test administered to Mr Gittany by Ms Robilliard produced a profile containing “highly elevated and statistically significant scores” on the scales for “schizoid”, “depressive” and “dependent” personality, indicating a strong likelihood of the presence of such behaviour. The report states that schizoid personalities are typically socially detached and have few, if any, close friends. Ms Robilliard states:

They often adopt a “peripheral role in social, work and family settings and may lack self awareness or insight into the implications of interpersonal behaviour”. Schizoid attributes occurring in parallel with dependent personality indicates that a person feels “less important and capable than others”.

  1. Schizoid attributes presenting in combination with depressive attributes would introduce an “apathetic, indifferent and self-sufficient element to the personality”. Ms Robilliard quoted material to the effect that such individuals:

“…typically perceive themselves as undervalued or worthless to others, inadequate, unsuccessful and are likely to have a self-critical predisposition. Hypersensitive to any signs of indifference by others, individuals with marked depressive personality attributes are likely to interpret this as contempt or condemnation aimed at them”.

  1. The Crown relied upon Mr Gittany’s prior convictions as an aggravating factor in the determination of the appropriate sentence: see s 21A(2)(d) of the Crimes (Sentencing Procedure) Act. As submitted by Mr Strickland, it is not permissible to take an offender’s record into account against him except in accordance with the principles stated by the High Court in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. The offender is not to be punished again for offences for which he has already been punished. Punishment must be proportionate to the crime for which it is imposed. The critical question is whether the prior offences inform the extent to which a sterner sentence may be required in order to meet the objects of sentencing, including deterrence and protection of the community.
  2. As already noted, there is no detail before me as to the prior conviction for assault occasioning actual bodily harm. I would accept that the drug offences are not significant in the present sentencing task. However, the prior conviction for malicious wounding is in a different category. I appreciate that the offence was committed almost 20 years ago, but it has a troubling resonance with the present offence. Each appears to have entailed a sudden loss of control and a response of extreme violence to a blameless act. Each involves a form of violence that is shocking and unequivocal. In the case of the malicious wounding, a police officer was performing his duty, attempting to execute a warrant duly issued for Mr Gittany’s arrest after he failed to appear at court for offences of which he was ultimately convicted. In the case of the murder of Ms Harnum, she was attempting to leave the apartment, as was her undoubted right.
  3. The significance of that prior conviction and the reliance I have placed on it are explained below in the context of the character evidence relied upon by Mr Gittany.
  4. A further aggravating factor relied upon by the Crown was the contention that the offence was committed without regard for public safety (see s 21A(2)(i)). The Crown noted that Lisa Harnum’s body was thrown over the balcony on a Saturday morning in a busy part of the central business district of Sydney and in an area where Mr Gittany must have known there was an outside cafe. The Crown likened Mr Gittany’s act of causing a body to fall from a great height into that area of the street to firing a gun down George Street at peak hour.
  5. I accept that the risk to public safety was relatively high and that is undoubtedly a relevant factor. However, I do not think that circumstance aggravates the offence to a significant degree in the present case. I think it is very unlikely that the offender turned his mind to that issue. In my assessment, he was in all probability completely blinded to any such consideration.
  6. The Crown also relied upon the fact that Ms Harnum was vulnerable (see s 21A(2)(l)). Her vulnerability was due to her slight build, particularly relative to Mr Gittany’s strength, as amply established by the ease with which he stopped her from leaving by the front door. I accept that is a relevant aggravating factor.
  7. I am also required to have regard to any relevant mitigating factors established by the material before me. Mr Strickland disavowed any suggestion that the offender was provoked by Ms Harnum (see s 21A(3)(c)). He sought to establish three matters by way of mitigation: good character; unlikelihood of re-offending and good prospects of rehabilitation.
  8. Mr Strickland contended for a finding that Mr Gittany is a person of good character. He tendered a large bundle of character references to support such a finding. Whilst a substantial portion of that material was irrelevant to the sentencing task, it did establish that there are many people prepared to attest to good aspects of Mr Gittany’s character. Without descending into the detail of the references, they provide a convincing description of Mr Gittany as a man who is friendly, polite, respectful, generous and always ready to offer assistance to family and friends in times of need. I accept without hesitation that Mr Gittany has conducted himself in that way towards family and friends. I also accept that there are many instances of his doing good, helping other people, being generous and kind and helping people in times of need.
  9. However, as effectively accepted by Mr Strickland, that is plainly not the complete picture of the man. Apart from some oblique reference to mistakes of the past, the character references are almost silent as to any conduct inconsistent with the gentle image portrayed. Every single character witness is either ignorant of or blinkered to the fact that Mr Gittany is capable of the extreme violence he exhibited towards the policeman.
  10. It would be wrong to say that the kindness and generosity towards other people described in the references is completely at odds with Mr Gittany’s treatment of Lisa Harnum. It is clear from statements she has made to other people that he was generous and kind towards her, at times. What is clear, however, is that friends and family either have never experienced or have determined to overlook the way he has treated people who have crossed him. The character referees do not treat the gentle and generous side of Mr Gittany’s character as redeeming features. I am asked to accept that those are his only character features.
  11. The prior offence against the police officer was committed in the presence of Mr Gittany’s mother and one of his sisters (who are described as having been involved in the struggle with police) and yet there is no reference to that incident in any of their glowing references.
  12. The starkest illustration of that blinkered approach comes from Mr Gittany’s current girlfriend, Ms Rachelle Louise. At the proceedings on sentence, she gave evidence of her intention to stand by Mr Gittany “until justice prevails”. Her assessment that justice is yet to prevail is one she was evidently content to make notwithstanding the fact that she was precluded from hearing any of the evidence in the trial because it had been announced that she was to be called as a witness in Mr Gittany’s defence (she was ultimately not called as a witness in the trial).
  13. It may be recognised that an offender does not have to be treated as a “one-dimensional” personality: see Melbourne v R [1999] HCA 32; (1999) 198 CLR 1 at [34] per McHugh J. The suggestion that a person must be characterised as either good or evil, if not heretical, is at least contrary to common experience. I accept that the evidence of Mr Gittany’s good character is relevant, as far as it goes. However, in my view the evidence sheds little light on the likelihood of Mr Gittany’s re-offending or on his prospects of rehabilitation. The concern arising from his prior assault on the policeman and the instances of his abusive treatment of Ms Harnum and the counsellor in the present case cannot be expunged by his charismatic treatment of those close to him.
  14. There can be no finding of remorse as a mitigating factor, having regard to Mr Gittany’s denial of guilt and his steadfast refusal to accept responsibility for his conduct. Mr Strickland nonetheless submitted that the Court would be satisfied that Mr Gittany is unlikely to re-offend and that he has good prospects of rehabilitation. He relied in that context on the evidence of Ms Louise, who said that Mr Gittany is the best boyfriend she has ever had (T79 of 5.2.14). She said that he had never demonstrated any of the features of an abusive relationship and that he had never been violent to her or threatened her.
  15. Whilst there is no basis to doubt the truthfulness of that evidence, it does not persuade me to any degree of confidence regarding Mr Gittany’s future conduct or rehabilitation. His relationship with Ms Louise has been conducted very much in the public eye and in the knowledge that she could be an important witness to his character. Further, while a physical resemblance between Ms Louise and Ms Harnum has been the subject of public comment, I suspect the similarity ends there. I do not think any reliable inference as to Mr Gittany’s future conduct can be drawn from his flamboyant relationship with Ms Louise.
  16. As to Mr Gittany’s prospects of rehabilitation, Mr Strickland also relied upon the strong support Mr Gittany enjoys from his family as a factor likely to promote rehabilitation. In circumstances where it appears not a single member of the Gittany family accepts the correctness of the verdict of guilty, I am not persuaded that family support will conduce in any way to rehabilitation. On the contrary, support in that form will only fortify the defiance with which Mr Gittany refuses to accept the smallest responsibility for the death of Lisa Harnum, which he and the family persist in describing as a “tragic accident”.
  17. At the proceedings on sentence, Mr Gittany was invited by his counsel to make any statement he wished in relation to “this matter”. After protesting his innocence he made the extraordinary suggestion that Mrs Harnum and Jason Harnum might find some consolation in hearing him say that Lisa Harnum did not die as a result of being murdered (T58). In the face of those remarks it is difficult to know where rehabilitation would begin. It appears to be an arid prospect. I am not persuaded that any prospect of rehabilitation exists in this case to be taken into account as a mitigating factor.
  18. There is one further consideration that I am required to take into account in determining the appropriate sentence. It was supported by material at the proceedings on sentence which was presented in open court but which was the subject of a non-publication order. The material was credible and was not contested by the Crown. Its contents should be accepted. For the reasons set out Mr Strickland’s written submissions, which I accept, I regard it to be an important subjective factor in the present case. In my view, the matters addressed in the written submissions constitute special circumstances (within the meaning of s 44 (2) of the Crimes (Sentencing Procedure) Act). I consider it appropriate to reflect the impact of that consideration by departing from the usual ratio between the non-parole period and the balance of term, which will entail structuring the sentence such that the balance of term exceeds one third of the non-parole period.
  19. It remains to consider a submission put on behalf of Mr Gittany as to the alleged extra curial punishment to which he has been subjected for the offence. Mr Strickland noted that the trial has received regular front-page coverage in the major Sydney newspapers and very extensive coverage in the electronic media, including prime-time news coverage on both the commercial stations and on the ABC. He submitted that the coverage has been sensational and has gone beyond the bounds of factual reporting of the trial.
  20. A small bundle of newspaper articles was tendered to support that contention (exhibit 4). While it may be fair to characterise those reports as being sensational in their style, nothing has been put before me to suggest that they are malicious or untrue.
  21. There was also evidence that the website for Mr Gittany’s retail business received hate emails the general nature of which has been communicated to him. Mr Strickland submitted that Mr Gittany had, on account of that material, suffered a serious “detriment” as a result of having committed the offence going beyond what an ordinary offender facing a charge of murder would suffer: R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) A Crim R 398 at [62] per James J; Tobias JA and R S Hulme J agreeing at [1] and [109] respectively.
  22. Mr Strickland sought to draw support for that submission from the report of the psychologist, Ms Robilliard, who recorded that Mr Gittany felt crucified and humiliated by the media coverage. Mr Gittany’s sister, Barbara Gittany and his girlfriend, Ms Louise, also gave evidence of his current depressed condition but it is difficult to relate their evidence specifically to the media coverage.
  23. The offender gave evidence that the prominent media exposure during the trial had been “a tough thing to deal with”. He said (T51 of 5.2.14):

I am charged with a crime that I did not commit and that’s in itself a cross that is just unbearable. And then for the media to have to report on that and everyone, you know, the millions of people throughout Australia, you know, that affects you. It weighs on your head, it affects your sleeping, it affects your eating and it gives you a lot of stress and it affected myself and my family greatly.

  1. It seems likely that the principal cause of the offender’s current state of depression is the guilty verdict and the prospect of a lengthy term of imprisonment. I doubt whether his depression has been exacerbated to any significant degree by the level of media attention his trial has attracted. He has, at least recently, embraced the attention of the media. In his evidence at the proceedings on sentence, Mr Gittany acknowledged that he was aware that his girlfriend would soon be appearing on national television to be interviewed about his case. He said that he had not tried to dissuade her from that course because she was trying to “repair the damage” and that he supported her “absolutely” in that respect. He was asked whether he agreed that her appearance would merely encourage media attention to his case. He replied “that is the whole point of it” (T60).
  2. Mr Gittany also acknowledged that he was aware Ms Louise had organised people to bring posters about the case to Court last week, on the first day of the proceedings on sentence. He had not attempted to dissuade her from being involved in that protest. He was not concerned as to whether that would encourage media attention. He said “no I actually encourage it because they believe in my innocence and they want the world to know the truth” (T62). In light of that evidence, I do not accept that media attention is unwanted by Mr Gittany.
  3. A separate question is whether public denigration is properly a matter to be taken into account so as to mitigate the sentence to be imposed.
  4. Mr Strickland submitted that the issue whether public humiliation or public denigration can constitute extra curial punishment remains unresolved in the High Court. In Ryan v R [2001] HCA 21; (2001) 206 CLR 267, Kirby J and Callinan J were of the view that public opprobrium can be taken into account, while McHugh J doubted that proposition (at [123], [177] and [52-55] respectively).
  5. In Kenny v R [2010] NSWCCA 6, Howie J said (at [49] to [50]):

My initial reaction was that public humiliation that arises from the commission of the offence should not alone give rise to a mitigation of sentence without more. However having regard to what Basten JA has written about this matter, the issue appears to be unresolved in the High Court and need not be determined for the purpose of disposing of this ground of appeal. Clearly there may be an exceptional case where it reaches such proportion that it has had some physical or psychological effect on the person so that it could be taken into account as additional punishment. That was in effect the position in Allpass. It was also the position in R v King [2009] NSWCCA 117 where media coverage of the respondent’s sentence resulted in threats to him and made him a virtual prisoner in his own home.

In so far as in the present case his Honour was not prepared to take into account as a mitigating factor the public humiliation suffered by the applicant, I agree with that view. But even if it were wrong, the impact upon the sentence would be very slight.

  1. It is appropriate to assume, without deciding, that a significant degree of public denigration could amount to extra curial punishment so as to be appropriately taken into account in mitigation of sentence, depending on the circumstances of the case. However, the measure of the impact of such a consideration must be assessed in a manner that is consistent with the authorities relating to extra curial punishment in all its forms. The degree of public retribution in Allpass was extreme. Mr Allpass and his wife were subjected to a lynch mob style of treatment. It had an extreme impact on his mental health and forced him to move home and assume a new identity.
  2. The impact of this consideration must also be assessed in a manner that is consistent with other principles of law, particularly the principles of open justice and those that recognise the importance of the freedom of the press.
  3. I consider that the impact upon sentence of the public attention Mr Gittany has attracted in the present case, if relevant, is very slight.
  4. Mr Strickland provided a number of comparable decisions for the purpose of determining an appropriate range of sentences. He relied in particular on the decision of the Court of Criminal Appeal in R v Toki [2003] NSWCCA 125 at [32] where the Court expressed the view that it is only in an exceptional case that a total sentence (not a non-parole period) of more than 20 years has been passed where a murder committed by a person against his or her partner was not premeditated. As acknowledged by Mr Strickland, however, Toki was decided before the introduction of standard non-parole periods. Whilst the standard non-parole period stands as a guidepost rather than a starting point, it is not a factor that the Court can simply choose to ignore. I do not think the range approved in Toki is a proper guide.
  5. Mrs Harnum and Jason Harnum prepared a victim impact statement which was read to the Court by the counsellor, Ms Michelle Richmond. The Crown did not suggest that the content of the statement could be considered in connection with the determination of the appropriate punishment for the offence: see s 28(4)(b) of the Crimes (Sentencing Procedure) Act. The statement nonetheless provided an eloquent articulation of the pain and damage to the whole community that is caused by offences of murder. It affords the Court an opportunity to acknowledge the grief and courage of those who mourn Lisa Harnum’s death.
  6. Taking into account all of the factors considered above, I consider that the appropriate sentence is a term of imprisonment for a period of 26 years with a non-parole period of 18 years to reflect the finding of special circumstances. The commencement of the sentence will be backdated to reflect the period the offender has spent in custody.
  7. Simon Gittany, I sentence you to a term of imprisonment with a non-parole period of 18 years commencing on 21 May 2013 and expiring on 20 May 2031 and a balance of term of 8 years commencing on 21 May 2031 and expiring on 20 May 2039. The first date on which you will be eligible for release to parole is 21 May 2031.

 

3 thoughts on “R v Gittany (No 5) [2014] NSWSC 49 11 February 2014

  1. seriously this guy hasn’t changed for years he was a control freak at school and the police and media forgot to mention he went to Doonside Primary school and Doonside High School. He was mean to you one day and real nice the next i have never forgotten how he would punch me waiting for role call he was in roll call C6 with Mr Darby to me he hasn’t changed at all just proves a leopard never changes its spots! You finally came unstuck Simon you never learnt did you?………

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  2. where did you get this transcript from? in the transcript it says hes parents are Lebanon immigrants .. further researching the government based transcript has no such wording.

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