Galluccio v The Queen
[2000] WASCA 178
•18 JULY 2000
GALLUCCIO -v- THE QUEEN [2000] WASCA 178
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 178 | |
| COURT OF CRIMINAL APPEAL | 18/07/2000 | ||
| Case No: | CCA:262/1999 | 10 MARCH 2000 | |
| Coram: | PIDGEON J WALLWORK J MURRAY J | 10/03/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused | ||
| PDF Version |
| Parties: | MICHELE GALLUCCIO THE QUEEN |
Catchwords: | Criminal Law and Procedure Sentencing Four offences of indecent dealing and one offence of attempted sexual penetration by an employer against a 17-year-old female employee Total effective immediate term of 2 years imprisonment with parole Employee persuaded by deceit into a compromising situation Whether Judge gave weight to extraneous matters or made incorrect findings as to deceit Whether sentence should be suspended Sentence confirmed Turns on its own facts |
Legislation: | Nil |
Case References: | Nil Davis v The Queen [1978] WAR 237 Eatwell v The Queen [1963] WAR 121 Ellis v The Queen, unreported; CCA SCt of WA; Library No 970480; 26 September 1997 House v The King (1936) 55 CLR 499 Langridge v The Queen (1996) 17 WAR 346 Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666 R v GP (1997) 18 WAR 196 R v Liddington (1997) 18 WAR 394 R v Meaton (1986) 160 CLR 359 Thompson & Owen v The Queen, unreported; CCA SCt of WA; Library No 980482; 3 August 1998 Tsaqgaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998 Weng Keong Chan v The Queen (1989) 38 A Crim R 337 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : GALLUCCIO -v- THE QUEEN [2000] WASCA 178 CORAM : PIDGEON J
- WALLWORK J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal Law and Procedure - Sentencing - Four offences of indecent dealing and one offence of attempted sexual penetration by an employer against a 17-year-old female employee - Total effective immediate term of 2 years imprisonment with parole - Employee persuaded by deceit into a compromising situation - Whether Judge gave weight to extraneous matters or made incorrect findings as to deceit - Whether sentence should be suspended - Sentence confirmed - Turns on its own facts
Legislation:
Nil
(Page 2)
Result:
Leave refused
Representation:
Counsel:
Applicant : Mr R E Birmingham QC & Mr I Weldon
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Hylton Quail
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Davis v The Queen [1978] WAR 237
Eatwell v The Queen [1963] WAR 121
Ellis v The Queen, unreported; CCA SCt of WA; Library No 970480; 26 September 1997
House v The King (1936) 55 CLR 499
Langridge v The Queen (1996) 17 WAR 346
Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Meaton (1986) 160 CLR 359
Thompson & Owen v The Queen, unreported; CCA SCt of WA; Library No 980482; 3 August 1998
Tsaqgaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998
Weng Keong Chan v The Queen (1989) 38 A Crim R 337
(Page 3)
1 JUDGMENT OF THE COURT: These are the reasons of the Court for making the order on 10 March last that the applicant be refused leave to appeal against a total effective sentence of two years imprisonment imposed upon him by his Honour Judge Macknay QC following his conviction by the jury of four sexual offences against a 17 year old girl who was an employee of the business he managed. The jury also found him guilty of a fifth offence of indecent dealing involving the same complainant, this being the first offence in time and the first on the indictment. For this offence his Honour imposed a fine of $500.
2 The applicant was born in 1933. He has no previous convictions for any offences other than traffic offences. In 1997, the complainant, a 17-year-old girl, commenced to work in the transport office which he managed and which was owned by his son. Absence of consent was not an element of the offences as she was an employee under his authority.
3 It will be necessary to set out the circumstances relating to the offences in order to understand the grounds of appeal. The first offence occurred on the day she commenced work. In the afternoon of that day, the complainant was reading some messages and said that the applicant leant over her shoulder. He placed his left hand on her left shoulder and started reading the messages in this manner. She said when he finished he squeezed her left breast with his right hand for a couple of seconds. The complainant moved back from the desk, turned around and said to him, "It was not going to happen and that she was not there to be used and harassed". She said that he laughed it off and walked away. As a result he was charged that he indecently dealt with a child under 18 years who was under his authority and for this offence his Honour imposed the fine of $500.
4 The next three offences occurred two days later. The circumstances in which they occurred were that on the following day the applicant called the complainant to his desk and in the words of the complainant, in her evidence to the jury, the following occurred (AB 112):
"The next day Michele called me to his desk and pulled out an envelope from the drawer and showed me a letter of which is for appraising hotel rooms and he asked me how I thought I should like do it and I said well, like, if you were to appraise hotel rooms, you would, like, obviously have to go and see them and stay there or at least see the rooms and that and, like, on this letter it had said to appraise the hotel rooms and if there
(Page 4)
- was a sale there was 15 per cent of 33,000,000 for whoever did it."
5 The letter had been received by the applicant some years earlier. It appeared to be a circular letter and it was described to us as being the "Nigerian scam". The letter came from a person describing himself as Prince Joe Umunna from Ikeduru, Imo, State of Nigeria, West Africa. It referred to the fact that the precise amount of $33,341,711.00 was to be paid into overseas accounts and requested details of the recipient's personal account and said, "At the conclusion of the transfer you shall be entitled to 30 per cent of the whole sum. There will be an amount of 10 per cent for contingencies and 60 per cent to be shared among officials described in the letter." Although the letter itself made no mention of appraising hotel rooms, the applicant indicated to the complainant this was what was required. The complainant was shown the envelope bearing Nigerian stamps. She was asked if she would be interested in doing the appraisal and was told that at the hotel she would receive half of the sum mentioned. She said she thought it was legitimate and it would be a chance to set her life up. The complainant at that stage thought she would be conducting the survey by herself.
6 The applicant told her to expect a call from "Joe", the name on the letter. A person calling himself "Joe" did ring her and give her some instructions. Her evidence was that the applicant then said to her that they would have to go together and act like a couple because there were sensors in the motel rooms. The applicant indicated to her that if it was found out that they were not there as lovers, but were doing an appraisal for the room, then "the bid would be barred" and they would not receive the money. He told her that the sensors were heat activated and they acted on movement and body heat. She said she was told again to make it look as though they were "basically lovers" and she was not comfortable with this. She was told to meet him at the motel at quarter past six the next day. She did this. She drove to the motel and met the applicant as arranged. He already had checked in and they went to a room together. She in fact made notes and did an appraisal of the room. They then went to dinner together at a restaurant nearby. She was requested to undress and was told that she was not to freeze as that would "stuff everything up". What then occurred is described in his Honour's sentencing remarks, a portion of which we now set out: (AB584)
"You arranged for the complainant to believe that it would be greatly to her financial advantage to go to a hotel with you to appraise the hotel for an Arab sheik who was an acquaintance of
(Page 5)
- yours. The complainant was also gulled into believing that the hotel was equipped with what she described as sensors and that it was necessary for her to act as though the two of you were not a 64-year-old employer and his 17-year-old female employee but as persons in a relationship of some kind.
Under your direction the complainant found herself naked in the shower of a bathroom annexed to the hotel room with you in the shower also naked. You in the course of that rubbed the complainant between her legs; that's count 2. You then had the complainant wash you including your genital area; that's count 3, and after going into the bedroom again and going into the bed, you attempted to penetrate her vagina with your penis. The complainant resisted that and you then ceased. The complainant then dressed and left. It was made clear to the complainant that nothing was to be said about it. The complainant actually prepared an appraisal of this hotel which made reference to sensors and was instructed, you told police officers, to send it off to Singapore to the Arab sheik but in fact it remained in your briefcase."
7 The second and third counts to which his Honour referred were offences of indecent dealing with a child between the ages of 16 and 18. The fourth count was an allegation of attempted sexual penetration of a child who was under the applicant's care or authority and was between the same ages. The circumstances are as described above. The circumstances of the fifth count are set out in the following remarks of his Honour. (AB585)
"You told the complainant later at work that the appraisal had been unsuccessful and it was necessary to appraise another hotel. The complainant understandably wasn't very keen on the idea of that but with some help from Joe, the Arab sheik, she eventually relented and again found herself in a hotel room with you.
You then began kissing her but this time the complainant was sensible enough to make you stop immediately and it's that kissing that is the conduct that was complained of in count 5 of the indictment. The complainant then left the hotel. She did not resume work and later complained to police officers."
(Page 6)
8 His Honour then referred to the following matters in his sentencing remarks: (AB585)
"Police officers spoke to you in the course of a video record of interview having earlier gone to your premises and the defence that you put forward to the police officers and you persisted in at trial and you still maintain is that a letter from Joe Umunna who was then in fact a prince in the African state of Nigeria to you asking for some letterheads in exchange for 30 per cent of $33,000,000 was a genuine proposal made to you which in fact you had discussed with your accountant at the time and decided not to proceed with but subsequently and coincidentally you'd met Joe Umunna on an aircraft whilst returning to Australia, that having been to your advantage because you'd made $50,000 from finding a property for this particular person and that you had then been asked to appraise a suitable hotel in Perth for Joe Umunna to buy and that he was making constant telephone calls to you, or attempting to find you, and that that was the reason that you had gone to the hotel and that the complainant had been brought on board by Joe, not by you, you said, and you said that you told her she would have to make her own arrangements with Joe.
It necessarily follows, of course, from the verdicts of the jury that they rejected that story. As I have already said to counsel it seems to me that it's not a story which any adult of any slight experience of the world could entertain for more than about half a second. These letters of course are quite notorious, and have been for some years, as being bogus. Your proposition that you were, based on your appraisal figure, to be paid $140,000 of course is simply nonsense and quite plainly the story was made up to gull the complainant and the telephone calls made to the complainant by Joe were either made by you or made by one of your acquaintances and the purpose of the telephone calls was to have the complainant believe that it was very greatly to her financial advantage to behave in a way that she wouldn't otherwise, I am sure, dream of behaving with you."
9 His Honour imposed a term of two years imprisonment for the offence of attempted sexual penetration and concurrent terms of 18 months in respect of the remainder.
10 The grounds of appeal are:
(Page 7)
- "1. That in sentencing the Applicant to, in effect, a term of imprisonment of two years with eligibility for parole, the learned Trial Judge acted on wrong principles, gave weight to extraneous matters and failed to give any or any sufficient weight to relevant considerations. In the premises, the sentence imposed was against sound discretionary judgment and in all the circumstances excessive."
- (i) The learned Trial Judge when sentencing the Applicant to a term of imprisonment found that the Applicant had created a story concerning the existence of Mr Umunna as an elaborate story created purely for the purpose of luring the complainant to the hotel when there was no evidence to support such proposition and that it did not form any part of the Crown case.
(ii) The learned Trial Judge failed to give proper consideration to the antecedents of the Applicant, the Applicant's personal circumstances and the extent to which a suspended term of imprisonment would be a proper disposition of the matter."
11 The first particular refers to observations his Honour made during his discussions with counsel when submissions were made in mitigation. He later used the expression "if I took the view". It is necessary to look to his Honour's sentencing remarks to ascertain the facts that he found. The relevant facts in this area are contained in the paragraph of his sentencing remarks which we have first set out whereby his Honour found that the applicant caused the complainant to believe it would be to her financial advantage to go to the hotel and that she was "gulled into believing" that the hotel was equipped with what she described as sensors and that it was necessary for her to act in the way that she did. In our view his Honour was fully justified in reaching the view he expressed in the sentencing remarks having regard to the evidence before him at the trial and the unlikelihood of the room being equipped with sensors in the way mentioned. It was open and proper for his Honour to take into account the fact that the complainant would not have gone to the motel and put herself in the compromising position she described had it not been for the deceit of the applicant.
(Page 8)
12 The second particular of the appeal and the main thrust of the argument in support of this application is that the sentence should be suspended. The reasons for his Honour imposing an immediate term were: (AB588)
"These offences exhibited in my view a considerable degree of planning. There was really a gross misuse of your position and of trust. The complainant, as I say, was an inexperienced, very naïve and vulnerable female, still 17 years of age. It is the case, of course, that the law in relation to sexual conduct with young females has often been said by the Court of Criminal Appeal, or certainly on at least one occasion, and often by courts to be in place to protect girls from themselves and that's perhaps usually said to be in relation to romantic notions that younger females might have but it would seem to me to be also applicable to a situation where a young female is caused to act in a particular way because of a belief that there is some extraordinary financial reward available if the complainant remains in your company and that that is then used to sexually exploit the complainant."
13 In our view it was open to his Honour to reach the view he did for the reasons he stated. When regard was had to the difference of ages between the applicant and the complainant and the extent of the deceit used, it could not be said that his Honour's discretion miscarried.
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