Director of Public Prosecutions v Galluzlo
[2022] VCC 1638
•3 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00825
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANK ANTHONY GALLUZLO |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2022 | |
DATE OF SENTENCE: | 3 October 2022 | |
CASE MAY BE CITED AS: | DPP v Galluzlo | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1638 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Aggravated burglary – Prohibited person possess imitation firearm – Common assault – Commit indictable offence whilst on bail – Relevant criminal history – Drug related offending – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 77, 320A(2); Control of Weapons Act 1990 s 5AB(2); Bail Act 1977 s 30B; Sentencing Act1991 ss 6AAA, 18.
Cases Cited:DPP v Barnes [2015] VSCA 293; Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 2 years and 9 months with a non parole period of 1 year and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Goodenough | The Office of Public Prosecutions |
| For the Accused | Mr J Portelli | James Dowsley & Associates |
HIS HONOUR:
Introduction
1Frank Anthony Galluzlo, you have pleaded guilty to:
(a) one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment (Charge 1);
(b) one charge of prohibited person possess an imitation firearm contrary to s 5AB(2) of the Control of Weapons Act 1990, which carries a maximum penalty of 10 years imprisonment (Charge 2); and
(c) three charges of common assault contrary to Common Law, which in this instance carries a maximum penalty of 15 years imprisonment (Charges 3, 4 and 5).
2You have also pleaded guilty to the related summary offence of commit indictable offence whilst on bail contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment (Summary Charge 6).
3You have also admitted your Criminal Record.
Circumstances of offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5On 1 August 2021 Constable Nathan Bow (‘Constable Bow’) was working at the Frankston Police Station.
6At approximately 6pm, Constable Bow was in the reception area of the station speaking with Senior Constable Robin Ham.
7You entered the police station and pointed a silver revolver at Constable Bow through the window at the counter (Charge 1 – Aggravated burglary; Charge 2 – Prohibited person possess firearm)
8You were rambling and yelling. The revolver was aimed at Constable Bow’s face. (Charge 3 – Common assault)
9At the time you were a ‘prohibited person’ as you had been subject to a Family Violence Intervention Order which expired on 4 April 2018, such that not more than five years had expired since you were subject to that order.[1]
[1] Firearms Act 1958, s 3.
10Constable Bow ducked under the counter and pressed the duress button.
11While under the counter you continued to point the revolver at Constable Bow and pulled the trigger multiple times.
12You pointed the revolver at Senior Constable Ham and pulled the trigger multiple times. (Charge 4 – Common assault)
13The revolver was an imitation firearm and did not discharge.
14Constable Bow and Senior Constable Ham thought that they might be killed. The entire incident was caught on CCTV.
15Protective Services Officers (‘PSO’) at the Frankston Railway Station were alerted to what had happened. PSO Dubery and others observed you running away and pursued you. You pointed the firearm at PSO Dubery (Charge 5 – Common assault)
16PSO Dubery feared for his life.
17You said ‘it’s not real’ and threw it to the ground after being told to do so. You were searched and a screwdriver was also located.
18Victoria Police members attended and arrested you.
19You were described as erratic, agitated and verbally abusive.
20You were interviewed by Victoria Police on 1 August 2021. You said:
(a) you had seen a video of your ‘stepson’ being ‘roused upon’ by PSOs;
(b) this made you angry;
(c) you had a miniature gun which had a trigger which was a torch and you walked into the Frankston police station;
(d) you put your arm through the window and said ‘freeze’;
(e) you thought the members would have felt scared;
(f) you may have said ‘freeze’ or nothing;
(g) you were squeezing the trigger;
(h) you denied pointing the gun at the PSOs;
(i) you were pretty sure you did not touch the trigger; and
(j) you had felt like killing yourself.
21At the time of the offending you were on bail (Summary Charge 6 – Commit an indictable offence whilst on bail)
Nature and gravity of the offending
22Your offending was committed in the public foyer area of a police station. The CCTV from two angles was tendered and played at the plea, depicting the entire incident. Watching the video, it is self-evident that you entered the police station and advanced with purpose to the counter at a fast pace, immediately putting your hand, holding the imitation firearm, through the gap in the protective windows on the counter. You then proceeded to pull the trigger of the firearm a number of times while pointing it at the two police officers as described above.
23The video is confronting. It represents frightening and violent behaviour. While the firearm was later discovered to be an imitation, given the speed at which you advanced to the counter after entering the police station and began pointing it at the police officers, it is understandable that the police officers thought that you were holding a dangerous weapon. Both police officers state that they believed they could be shot and seriously injured or killed.
24After leaving the police station you were pursued by PSOs and when confronted, you pointed the firearm at the third victim. He also feared for his life.
25Aggravated burglary is by its nature a serious offence, reflected in the maximum penalty of 25 years imprisonment. However aggravated burglary offences are committed in a wide range of circumstances. In this instance, the aggravated burglary charge was complete once you entered the public area of the police station with the requisite intent. As has been recognised by the Court of Appeal, aggravated burglary is a somewhat anomalous offence in the sense that an aggravated burglary would rarely attract a sentence near its maximum penalty, given the available maximum penalties attached to serious offences that may be committed after entry.[2] Plainly enough, in this instance, the more serious conduct that gives rise to the common assault charges occurs seconds after the aggravated burglary is complete.
[2] DPP v Barnes [2015] VSCA 293, [46] per Croucher AJA.
26The type of common law assault that you have pleaded guilty to, involving assault on police using a firearm is a serious version of common assault as recognised by Parliament having imposed a maximum penalty of 15 years imprisonment, pursuant to s 320A(2) of the Crimes Act. That is, assaulting a police officer on duty and being in possession of a firearm that is readily apparent to the victim. In the circumstances, your conduct in my view represents relatively serious examples of this type of common law assault.
27The seriousness of your conduct is heightened when consideration is given to the fact that you were on bail at the time of the commission of the offences.
Victim impact
28A victim impact statement was prepared by Constable Nathan Bow. Constable Bow describes that he has been psychologically impacted by your crimes. He experiences flashbacks, replaying the incident in his mind including the feeling of believing that he could have been killed. He has trouble sleeping and has required the assistance of a psychologist. In terms of his working environment, Constable Bow states that the incident continues to impact how he feels at work including that he now feels unsafe on occasions.
Personal circumstances
29You are currently 50 years of age. You were born in Frankston to Italian immigrant parents who worked at a fruit and vegetable grocery in Mornington owned by members of your extended family. Your parents were traditional and very strict with you as a child, often resorting to physical discipline when you misbehaved. Your father would typically strike you using a belt. In spite of this, you remain close with your parents and describe your mother as your main support. During your time on remand, you have maintained regular phone contact with your mother.
30You have two younger brothers and a younger sister, none of whom have any involvement in the criminal justice system. You left school partway through Year 8 to attend Mornington Technical College, where you pursued a work experience role at a car wiring factory. You did not enjoy school, having suffered from ADHD as a youth, although you never received a formal diagnosis from a paediatrician. You ultimately left school after being suspended multiple times and went on to work in several jobs, including in a car harness factory for one year, as a concreter, and as a labourer at a factory which specialised in sheet metal manufacturing and the construction of farm sheds. Your longest period of employment was at the Melbourne Markets for eight years as a forklift driver. You last worked in 2013 and since then you have claimed the disability pension on the basis of drug-induced psychosis.
31You were assessed by Dr Nick Owens, psychiatrist, in August 2022. Dr Owens prepared a report dated 21 September 2022 which provides a detailed history in relation to your long-term drug use. You began smoking cigarettes at age 13 and commenced using alcohol regularly in your late teens or early twenties. However, as an adult, you drink only rarely. You also started using cannabis regularly at age 13 and have consistently used ever since. You commenced using amphetamines when you were 15 years old and progressed to crystal methamphetamine about eight years ago. You use about 0.1 grams every day or every other day by intravenous injection. Your longest period of abstinence was a period of around four months while you were in custody. You instructed your counsel that you had used methamphetamines in the hours before the incident.
32You were formally diagnosed with ADHD 13 years ago. You had been attending psychiatrist Dr Robert Kruk since 2013 and were seeing him every six months to get prescriptions for dexamphetamine, which is a stimulant used for treatment of ADHD. Your adherence to this medication in the past has been dependent on your ability to afford the medication. You have not been prescribed dexamphetamine since being remanded, although when asked by Dr Owens, you indicated that despite the lack of medication, you have not felt agitated whilst on remand. In respect of your current medication regime, you have been prescribed anti-psychotics, Zyprexa and Olanzapine. You also use medication for heart burn and glaucoma.
33You have previously engaged with drug and alcohol counselling as a condition of community correction orders and were admitted to a residential drug rehabilitation facility for about ten months in 2006. You were treated as an inpatient at the Alfred Hospital psychiatric inpatient unit for three days in May 2016. You were brought to the emergency department via ambulance after deliberately cutting your thigh with a box-cutter. This was in the context of methamphetamine use, isolation from your family (who had taken an intervention order against you), and stress relating to an upcoming court hearing with risk of imprisonment. I note in the August 2022 assessment with Dr Owens, you denied having any suicidal thoughts and reported no such thoughts since being on remand.
34At the time of the offending, you were affected by methamphetamine. You were without a permanent home and had enrolled in the ‘Homelessness to Home’ program. You were awaiting assignment of stable housing before you offended. You stated to Dr Owens that at the time of the offending, you were feeling angry and distressed after being shown a video of your friend’s child being escorted by police. The record of interview indicates you were also experiencing suicidal thoughts at the time. Dr Owens is of the view that your offending may be characterised as 'an episode of acute affective dysregulation, intensified by the impact of methamphetamine, and possibly also characterised by an element of paranoia and disorganisation of [your] thinking'.
35Dr Owens ultimately concludes that the most likely diagnosis is that you have recurrent episodes of drug-induced psychosis, linked to the use of methamphetamine and possibly also stimulant medication. He bases this opinion on a background of traits of personality disorder and antisocial and borderline type, cannabis and stimulant use disorder and possibly ADHD. In the course of assessing you, Dr Owens also formed the impression that you may be of borderline intellectual capacity, based on your vocabulary during the interview and the history you provided of your difficulties in education. However, he does not go so far as to make a formal diagnosis, noting he is not a psychologist and therefore not qualified to assess intellectual capacity.
36In terms of future risk Dr Owens sates:
I think the risk of violent reoffending in the next six to twelve months is moderate to high. He has a high loading of historic risk factors for violent offending including past violent offending, past non-violent offending, social isolation and history of alienation from supports, unemployment, substance use problems, mental illness, early developmental problems, traits of personality disorder and prior supervision failure on multiple occasions.
37Despite that assessment, Dr Owens notes you have ‘reasonable insight’ into your problems with substances. He opines your risk could be moderated by ensuring that you are linked with mental health services prior to your release and engaged with the NDIS to ensure more holistic support with things like accommodation and daily living.
38You have an extensive criminal history commencing in 1991. Your prior history consists of drug and drug related offending including dishonesty offences such as robbery and theft, violent offences and some driving offences. You have had a number of community-based dispositions and I note that in August 2020 you faced breach proceedings in relation to a community correction order imposed in 2019.
Sentencing considerations
39Mr Portelli who appeared on your behalf, highlighted a number of matters in mitigation.
40First is your plea of guilty. Your matter resolved at the committal mention stage and as such is an early plea. While the prosecution case was strong, nonetheless your plea of guilty demonstrates your acceptance of responsibility and willingness to facilitate the course of justice. Your plea avoids the need for a trial and most importantly, your plea has spared the victims from having to give evidence and relive the event.
41Your plea of guilty carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[3]
[3] Worboyes v The Queen [2021] VSCA 169 at [39].
42I accept that you have expressed regret for your conduct in the record of interview and to Dr Owens in a general sense, however the evidence does not demonstrate that you have articulated the impact of your conduct on the victims you confronted. That said, Dr Owens notes that you have reasonable insight and I have no doubt that you appreciate that your conduct was frightening and has had a significant impact on the victims.
43I take into account your difficult background and your long-term battle with drugs. It seems that initially there was a nexus between your undiagnosed and untreated ADHD from childhood and your drug use and offending. However, you are now a 50 year old man and have been battling with drugs and involvement in the criminal justice system for many years. While clearly your drug affected state influenced your conduct in this instance, it is no excuse. As noted by Dr Owens, your conduct was clearly intensified by the impact of methamphetamine mixed with paranoia and disorganisation of your thinking. These affects are well known to you as a long-term drug user.
44Your prospects of rehabilitation cannot be assessed positively. While I accept that you do have some insight, you have been unable to conquer your battle with drugs despite a number of attempts through community-based dispositions. Unless and until you confront your drug addiction in a serious way and demonstrate a sustained period of abstinence, your prospects will remain uncertain.
45I take into account that you have served your time on remand under onerous prison conditions as a result of the COVID-19 pandemic. While the conditions have begun to improve, there is uncertainty as to when the prison environment will revert to normality. As such I accept that your time in custody will continue to be more burdensome.
46General deterrence is a prominent sentencing consideration in this instance. Specific deterrence and protection of the community are also relevant sentencing considerations in the circumstances. While it might be thought the police officers working within the police station are in a safe environment, they are, not unlike store attendants, soft targets for persons like you who enter a store or work environment with the intention of committing a serious offence. That behaviour must be deterred.
47As to specific deterrence, plainly enough your drug addiction is entrenched, and you have been unable to overcome it. On this occasion you had used drugs and you then behaved in an erratic, violent manner. The unchallenged and perhaps trite opinion of Dr Owens is that your methamphetamine use clearly impacted your behaviour. The sentence I impose must provide a strong incentive to you to make further efforts to overcome your drug addiction and make a positive change.
48It was submitted on your behalf that a long parole period would provide you with supervision and assistance in the community, which are protective factors. While I accept that submission, I must also balance the other sentencing considerations I have noted above.
Sentence
49Mr Galluzlo, would you please stand.
50Frank Anthony Galluzlo, on Charge 1, aggravated burglary, you are convicted and sentenced to 18 months imprisonment. On Charge 2, prohibited person in possession of an imitation firearm, you are convicted and sentenced to 8 months imprisonment. On Charges 3 and 4, common assault, you are convicted and sentenced to 2 years imprisonment on each charge. Charge 3 is the base sentence. On Charge 5 common assault, you are convicted and sentenced to 12 months imprisonment. On Summary Charge 6, commit indictable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment.
51I direct that 6 months of the sentence on Charge 4 and 3 months of the sentence on Charge 5 be served cumulatively on each other and on Charge 3, making for a total effective sentence of 2 years and 9 months imprisonment. I direct that you serve 1 year and 9 months before becoming eligible for parole.
52Pursuant to s 18 of the Sentencing Act 1991, I declare that 428 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
53Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 4 years with a non-parole period of 2 years and 6 months.
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