Director of Public Prosecutions v Gallardo, Enzo
[2010] VCC 1709
•27 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ENZO GALLARDO (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE HOWIE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29 and 30 April 2010; 4, 5, 6, 7, 11, 12, 13, 14, 17, 18 and 19 May 2010 | |
DATE OF SENTENCE: | 27 May 2010 | |
CASE MAY BE CITED AS: | DPP v Gallardo, Enzo | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 1709 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Stefanovic | |
| For the Accused | Mr S. Brand |
HIS HONOUR:
1 Enzo Gallardo, you have been found guilty by jury verdict of one count of persistent sexual abuse of Sheila Serrano[1] and one count of persistent sexual abuse of Hayley McKenzie[2]. You have also pleaded guilty to possession of child pornography. The maximum penalty for the crime of persistent sexual abuse of a child under the age of 16 is a term of imprisonment of 25 years. For possession of child pornography it is a term of imprisonment of five years.
[1] A pseudonym
[2] A pseudonym
2 The persistent sexual abuse of the two girls took place in the three month period from 1 February 2008 to 1 May 2008.
3 Sheila Serrano was seven years of age, her date of birth being 10 June 2000. You were the partner of her mother Ursina Curiel[3], with whom you had been in a relationship for many years and with whom you had lived at in Deer Park since 2007. There was a child of that relationship, Maurizio Gallardo[4], born on 19 June 2006. You lived as a family with Ms Curiel and the two children at the Deer Park unit. When she was interviewed by police, Sheila spoke of you as her dad and as her stepdad.
[3] A pseudonym
[4] A pseudonym
4 Hayley McKenzie was ten or eleven years of age in this period, her date of birth being 22 April 1997. She was a friend of Sheila's. She lived a short distance from your home and she regularly visited Sheila at your home after school.
5 The evidence of the two girls was that in that period in early 2008 when Sheila's mother was absent for some reason such as shopping or visiting her mother, you used the opportunity to commit sexual acts with each of them in the home. Each of them spoke of acts involving your rude part and her rude part.
6 The acts alleged in Count 1 with respect to Sheila Serrano were touching her vagina, introducing your tongue onto her vagina, having her masturbate your penis, introducing your finger into her vagina, and masturbating in front of her. The evidence of Sheila Serrano was that acts of this kind took place on a number of occasions in the three month period. The prosecution identified 13 such occasions to the jury. The jury were satisfied that there were at least three occasions when an act of the kind alleged took place.
7 The acts alleged in Count 2 with respect to Hayley McKenzie were introducing your penis into her vagina and the attempted introduction of your penis into her mouth. The prosecution relied on three occasions when it was submitted on the evidence that the alleged acts took place, an occasion in the kitchen when you introduced your penis into her vagina, an occasion in the lounge room when you introduced your penis into her vagina and an occasion when you pushed her head down to your exposed penis. The jury were satisfied that on those occasions the alleged acts took place.
8 Evidence was given of other acts of sexual misconduct by you, particularly with Hayley McKenzie that were not the subject of the charge. These included masturbating in her presence, touching her vagina and putting your finger into her vagina many times. While you are not to be sentenced for this other misconduct, it means that the three acts alleged with respect to Hayley McKenzie cannot be treated as being isolated acts, that is, the only sexual acts committed with her.
9 These are profoundly disturbing crimes. You exploited the immaturity and ignorance of two children, coercing them to submit to sexual acts with you. You betrayed the trust that one of them had in you as her stepfather and the trust of the other girl which she had in you as the adult in the home of her friend. It is such a grave wrong to harm a child and to violate two children as you have done. It is particularly abhorrent conduct. It deserves stern punishment. Sexual offending against children is a matter of the utmost seriousness, principally because of its impact on each of the two girls but also because of the damage to the community generally.
10 The separate statements of Ms Curiel and Ms McKenzie, the mothers of each of the girls, refer to the impact of your abuse on each of them. Each describes her daughter as having become withdrawn and distrustful of males. Ms Curiel has written that her daughter often becomes teary and emotional. Her performance at school has been adversely affected. She receives weekly counselling at the Gatehouse Centre. Her mother fears a permanent affect on her emotional wellbeing and future mental health. Mrs McKenzie described the emotional impact on her daughter and her family.
11 The full impact of your conduct on each of the children cannot be fully evaluated but it cannot be doubted that you have done each of them serious harm. Superior courts have observed that frequently the damage is profound and a long time may pass before it can be addressed. Childhood is disrupted, self esteem damaged, education impacted and the capacity to form and maintain relationships seriously impaired.
12 Each of the girls was interviewed by police officers in May 2008 and her evidence recorded. Your plea of not guilty meant that two years later in May 2010, each had to watch and listen to the earlier recording of her evidence and be cross-examined about it.
13 On 18 May 2010, following the jury verdict on the other two counts, you pleaded guilty to possession of child pornography on 29 April 2008. In the trial, Ms Curiel gave evidence that she had observed you watching film of sexual behaviour between an adult male and a female child on your computer. Later, police seized from your computer a DVD of child pornography. By your plea, you admit that you were in possession of the child pornography located on that DVD. It is sufficient to state that it contains approximately an hour and twenty minutes of moving film and approximately two minutes of still images. The DVD includes images of sexual acts between adult males and female children, including penile vaginal penetration. Your interest in such degrading material does not suggest that your prospects of rehabilitation are good. I have not been told how this DVD came into your possession. Apparently it was not downloaded from the internet. Nor have I been told how long it was in your possession. The offence pleaded to was that it was in your possession on 29 April 2008. While it is not suggested that you played any part in the production of the pornography on the DVD, the interest in the possession and viewing of child pornography is the reason why children are violated to produce it, so you cannot escape the responsibility for the degrading exploitation of children which is involved.
14 As far as the charges of sexual abuse are concerned, there is no evidence of remorse on your part. When interviewed by Sergeant Harrison on 7 May 2008, you gave no comment answers to questions asked of you and, as I have already observed, your plea of guilty required the girls to be questioned again about your conduct.
15 Your plea to possession of child pornography indicates acceptance by you of your responsibility for that conduct and it has avoided the cost and inconvenience of a trial for that offence.
16 As you have been convicted of persistent sexual abuse of a child and also of possession of child pornography, you are to be sentenced as a serious sexual offender. I am required to regard the protection of the community as the principle purpose for which the sentence is imposed. These are grave offences that merit stern punishment and I do not consider it necessary to impose a sentence longer than that which is proportionate to the gravity of the offences.
17 It is difficult to assess what risk you are of committing similar offences in the future. This was opportunistic offending, availing yourself of the opportunity when Ms Curiel was absent. One victim was within your family circle and the other from another family. You have a prior court appearance in August 1995 for matters not relevant for present purposes. There is no evidence of either remorse of insight on your part. There is no evidence explaining the causes of your behaviour. A pre-sentence clinical report based upon a psychological assessment tool assesses you as being in the moderate to low risk category of sexual re-offending. The fact that you had an interest in viewing images of adult sexual behaviour with children does not suggest that your prospects of rehabilitation are good. Personal deterrence as well as general deterrence are important considerations in sentencing you.
18 You are 44 years of age, your date of birth being 5 November 1965. When you arrived in Australia from El Salvador at the age of 18, you already had your papers as a qualified boilermaker and I am told that you have been in employment during your adult life until suffering a serious injury at work on 20 June 2008, when five tonnes of metal fell on your leg, causing multiple fractures which have required four or five operations. You have been unable to work since suffering this injury and you are to be assessed for permanent incapacity. You presently require the use of elbow crutches and it is apparent that your physical incapacity will be a cause of additional hardship to you in prison.
19 Your parents, three sisters and two brothers also migrated to Australia. Ms Condon told me that you have not informed any of your family of these matters, so you are at the moment without family support. You may have some support from a former partner Ms Cervantez[5], with whom you have three daughters born in 1990, 1999 and 2001.
[5] A pseudonym
20 You are convicted of the three offences. On Count 1, persistent sexual abuse of Sheila Serrano, you are sentenced to a term of imprisonment of five years. It is the base sentence.
21 On Count 2, persistent sexual abuse of Hayley McKenzie, you are sentenced to a term of imprisonment of six years. The sexual acts with Hayley McKenzie were more serious that those with Sheila Serrano as they involved penetration of her vagina with your penis.
22 On the charge of possession of child pornography, you are sentenced to a term of imprisonment of ten months.
23 Having regard to the principle of totality, I order that four years of the sentence imposed on Count 2 be served concurrently with the sentence for Count 1. By operation of law, two years are to be served cumulatively. I order that four months of the sentence imposed for possession of child pornography be served concurrently. By operation of law, six months are to be served cumulatively. The total effective sentence is a term of imprisonment of seven years and six months. I fix the period of five years and four months as the period during which you shall not be eligible to be released on parole.
24 I record in these reasons that Mr Stefanovic, for the Director, submitted that the appropriate sentencing range is a term of imprisonment of eight to ten years with a non-parole period of six to eight years.
25 I direct that it be entered in the records of the court that you were sentenced as a serious sexual offender for each of the three offences.
26 As you pleaded guilty to the offence of possession of child pornography, you have received a less severe sentence than would otherwise have been imposed. The sentence that would have been imposed but for the plea of guilty is a term of imprisonment of twelve months. In the circumstances of this case where you are sentenced for other matters, it is not appropriate to state a non-parole period.
27 I direct that the period of nine days during which you have been in custody in relation to these proceedings be reckoned as a period of imprisonment already served under the sentence.
28 Now, Mr Gallardo, having been found guilty of these offences, you are a registrable offender under the Sex Offenders Registration Act. Persistent sexual abuse is a Class 1 offence and possession of child pornography a Class 2 offence. This imposes obligations upon you and you are required to comply with the reporting obligations imposed by the Act for the remainder of your life. It is necessary for me to have served on you a notice under the Sex Offenders Registration Act, and I will have that prepared now and served on you.
29 Mr Gallardo, this is the notice that will be served upon you. I am not going to read it all to you, but you will see that it is headed notification of reporting obligations under the sex offenders registration regulations or Act. If you just look on the first page, you will see that you must report to Victoria Police within 28 days of your release from custody and if you look at the bottom of the page, you will see that you are required to comply with the reporting obligations for the remainder of your life.
30 If I could just ask Ms Mercedes-Evans to turn to the next page, you will see that set out on that next page are a series of personal details that you must provide to the police. They include your name and address and phone numbers, they include the names and ages of any children who generally reside in the same household as you and the names and ages of any children with whom you have regular unsupervised contact.
31 You will see that you are prohibited from applying for and engaging in any child related employment.
32 If you turn to the next page, you will see that you are required to inform the police of any changes to your personal details and any intended absence from the state of Victoria.
33 If you could just now turn to the next page, you will see that you are required to provide your personal details annually to a case manager for the duration of your life. You will see that it is a criminal offence to fail to comply with the reporting obligations that you have, or to give false or misleading information. It sets out there various identification documents that you are required to provide to the police.
34 This is a system that reflects the profound concern that the community has about sexual offences involving children and it is intended to impose a regime of supervision upon you for the rest of your life.
35 Now, I will just ask Ms Collins to come down and to have you sign acknowledgement that you have received this notice. I should sign this one first, should I not? I will ask you to accompany her if you would Mr Brand please.
36 Is there anything further Mr Stefanovic?
37 MR STEFANOVIC: On the plea, Your Honour, I believe I did ask for forfeiture of two items, one being the subject of the possession of the child pornography, that DVD, and secondly the short video of Hayley McKenzie's complaint to Ursina Curiel.
38 HIS HONOUR: Yes, have you - - -?
39 MR STEFANOVIC: I don't have a draft, I'm sorry.
40 HIS HONOUR: You haven't got any draft orders?
41 MR STEFANOVIC: That can be - I undertake to provide that this morning.
42 HIS HONOUR: Yes.
43 MR STEFANOVIC: To your associate.
44 MR BRAND: That's not opposed.
45 HIS HONOUR: Not opposed, Mr Brand? Yes, well I will make those orders that those documents - that's the DVD that contains the pornography?
46 MR STEFANOVIC: Correct.
47 HIS HONOUR: And the DVD that contains that short interview of Ms Curiel with Hayley McKenzie?
48 MR STEFANOVIC: Correct.
49 HIS HONOUR: Yes. That they be forfeited and the usual orders made. Nothing further?
50 MR STEFANOVIC: No, Your Honour.
51 HIS HONOUR: Mr Brand, nothing further?
52 MR BRAND: No, Your Honour.
53 HIS HONOUR: Yes, thank you. Thank you both. Thank you Ms Mercedes-Evans for your assistance and I'll just leave the bench for the moment.
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