Gugliucciello v The King

[2023] VSCA 247

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0090

MARIO GUGLIUCCIELLO	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2023
DATE OF JUDGMENT:	17 October 2023
DATE OF REASONS:	19 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 247
JUDGMENT APPEALED FROM:	DPP v Gugliucciello [2023] VCC 779 (Judge Tinney)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Charges of indecent act with child under 16, indecent assault and indecent act with 16/17 year old child under care, supervision or authority – Offending spanning period from 2002 to 2008 and 2013 – Victims female staff or clients in applicant’s hair salon aged between 13 to 17 – Total effective sentence of 3 years and 2 months’ imprisonment with non-parole period of 18 months – Whether sentence manifestly excessive – Leave to appeal granted – Appeal allowed – Applicant resentenced to 5 months’ imprisonment.

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Counsel
Applicant:	Ms C A Boston SC with Mr D Zajd
Respondent:	Ms J Warren
Solicitors
Applicant:	Dribbin & Brown Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA:

1. On 10 November 2022 and 17 February 2023, the applicant pleaded guilty to the offences set out in the table below.

2. Following a plea on 8 May 2023, he was sentenced on 12 May 2023 as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment No. L12644493.A1
1	Indecent act with a child under 16 years	10 years	9 months	3 months
2	Indecent assault	10 years	5 months	2 months
3	Indecent act with a child under 16 years	10 years	9 months	3 months
4	Indecent act with a child under 16 years	10 years	10 months	Base
5	Indecent act with or in the presence of a child aged 16–17 years under care, supervision or authority	5 years	9 months	3 months
TES on Indictment L12644493.A1:		1 year and 9 months
Indictment No. L12644493.3
1	Indecent act with a child under 16 years	10 years	9 months	2 months
2	Indecent act with a child under 16 years	10 years	22 months	Base
TES on Indictment L2644493.3:		2 years
Cumulation as between indictments:		14 months of the TES on Indictment L12644493.A1 be served cumulatively of the TES on Indictment L2644493.3
Total Effective Sentence:		3 years and 2 months’ imprisonment
Non-Parole Period:		18 months’ imprisonment
Section 6AAA Statement:		5 years and 6 months’ imprisonment with a non‑parole period of 4 years’ imprisonment
Other relevant orders:		Registration and reporting period of life pursuant to s 34 of the Sex Offenders Registration Act 2004.

1. The applicant sought leave to appeal against sentence on the single ground that the individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in light of the principle of totality and the significant factors in mitigation, including the applicant’s guilty pleas, rehabilitation, and increased burden of imprisonment.

2. At the conclusion of the hearing of the application for leave to appeal on 17 October 2023, we were of the view that leave to appeal should be granted and the appeal allowed. We resentenced the applicant as detailed below. These are our reasons for those orders.

Circumstances of the offending

1. The applicant owned and operated a hair salon. The offending occurred in the salon between 2002 to 2008 and in 2013 when the applicant was aged 28 to 39 years. It involved six victims aged between 13 and 17 years.

Indictment L12644493.A1 (‘the First Indictment’)

1. In 2002–2003 Vicki Lynch[1] was aged 14 to 15 years. While the applicant was cutting her hair, he touched her breasts and cupped her vagina, both over her clothing (charge 1 — rolled up indecent act with a child under 16 years).

   [1]A pseudonym.

2. In 2004–2005 Jane Marsh[2] was a 16 year old employed by the applicant. On one occasion he touched her breast over her clothing (charge 2 — indecent assault).

   [2]A pseudonym.

3. In 2006 Krystal Lynch[3] was aged 14 to 15 years. While cutting her hair the applicant touched the outside of her underwear with his fingertips and touched her breast underneath her clothing (charge 3 — rolled up indecent act with a child under 16 years).

   [3]A pseudonym.

4. In 2007 Nellie Lynch[4] was aged 13 to 14 years. While cutting her hair the applicant touched her breast and vagina over her clothing (charge 4 — rolled up indecent act with a child under 16 years).

   [4]A pseudonym.

5. In November 2008 Cindy Stanley[5] was 17 years old and employed by the applicant. On a single occasion he touched her vagina over her clothing, pushed his erect penis against her bottom over her clothing and touched her breast under her clothing (charge 5 — rolled up indecent act with or in the presence of a child aged 16–17 years under care, supervision or authority).

   Indictment L2644493.3 (‘the Second Indictment’)

   [5]A pseudonym.

6. In 2013 Victoria Meyer[6] was a 15 year old employed by the applicant. On two occasions between September and October, at the salon and upon the applicant’s request, she touched his penis over his clothing (charge 1 — rolled up indecent act with a child under 16 years).

   [6]A pseudonym.

7. On a separate occasion in November, the applicant touched Meyer’s vagina underneath her clothing in an upstairs room of the salon (charge 2 — rolled up indecent act with a child under 16 years).

Police interviews

1. The applicant was interviewed by police after the conduct the subject of charge 1 on the second indictment, but before the conduct the subject of charge 2 on that indictment occurred. He was then interviewed again. The applicant denied the allegations. Meyer made a statement of no complaint and no charges were then laid.

2. On 26 November 2019 the applicant was interviewed in relation to the conduct the subject of the charges on the first indictment. On 23 August 2020 police contacted Meyer, who then made further police statements.

Sentencing Reasons

1. In detailed reasons for sentence, the sentencing judge summarised the circumstances of the offending[7] and termed the applicant’s conduct ‘disgraceful’.[8] The judge said that the seriousness of the conduct was not to be gauged merely by the physical acts, but also by the breaches of trust involved in them.[9] He rejected the applicant’s claim that the indecent touching was done absent a sexual motivation.[10] The judge noted that some of the charges were rolled up, but none were laid on a representative basis.[11]

   [7]DPP v Gugliucciello [2023] VCC 779, [7]–[14] (‘Reasons’).

   [8]Reasons, [16].

   [9]Reasons, [16].

   [10]Reasons, [16].

   [11]Reasons, [18]–[19].

2. Next the judge summarised the victim impact statements, finding that the impact had been ‘very significant’ and had ‘changed many lives for the worse.’[12]

   [12]Reasons, [22]–[37].

3. The sentencing judge summarised the applicant’s background, drawn from psychological reports written by Ms Carla Lechner and Dr Paul Grech, as well as character references tendered on his behalf.[13] He noted the applicant’s subsequent convictions for similar offending in the early 2000s, committed on two girls aged 13 and 14. The judge accepted that the applicant’s pleas of guilty were made relatively early, facilitated the course of justice and attracted particular weight because they were entered during the COVID-19 pandemic.[14] He also found that the applicant had some limited remorse.[15] The judge noted that the applicant had been offence free since 2013 and had been assessed by Ms Lechner as being of a low to moderate risk of sexual reoffending.[16] Further, he accepted that both the unfairness and rehabilitation limbs of delay were applicable[17] and that the applicant had favourable prospects of rehabilitation.[18] The judge also accepted that, if imprisoned, the applicant would be burdened with worry about his family and business[19] and took into account the impact of COVID-19 on the custodial environment.[20]

   [13]Reasons, [50]–[57].

   [14]Reasons, [58]–[65].

   [15]Reasons, [66]–[77].

   [16]Reasons, [78]–[81].

   [17]Reasons, [83]–[99].

   [18]Reasons, [100]–[104].

   [19]Reasons, [105]–[114].

   [20]Reasons, [115]–[116].

4. Turning to the nature and gravity of the offending, the judge again noted the breach of trust involved. Whilst accepting that, on the whole, the instances of touching were ‘relatively brief or even fleeting’, the judge stated that the offending was ‘incredibly brazen’ and noted the significant age gap between the applicant and his victims. He concluded that the charges did not fall at the lowest level.[21] The judge took into account the impact of the crimes and referred to the need for just and proportionate punishment, denouncement, protection of the community and deterrence, both specific and general.[22] His Honour also referred to community protection as the principal purpose of sentencing in the event that the applicant fell to be sentenced as a serious sexual offender. The judge also referred to current sentencing practices.[23]

   [21]Reasons, [117]–[128].

   [22]Reasons, [129]–[138].

   [23]Reasons, [140]–[145].

5. The sentencing judge rejected the applicant’s submission that a community correction order (‘CCO’) would be appropriate in all the circumstances, as well as the prosecution’s acquiescence in that submission.[24] He termed the latter ‘a startling submission in the circumstances of this case’.[25] The judge also rejected the submission that suspended sentences would be appropriate with respect to the charges on the first indictment.[26]

   [24]Reasons, [148]–[154].

   [25]Reasons, [149].

   [26]Reasons, [155]–[157].

6. Turning to totality, the judge said that the applicant’s criminality was ‘high’. He noted that the serious sexual offender provisions in the Sentencing Act 1991 would apply to the applicant upon the third sentence imposed, but clarified he would not impose a disproportionate sentence and, considering totality, would moderate the level of cumulation. Nevertheless, some cumulation was needed both because of the serious sexual offender provisions and independent of them — namely the number of victims and the rolled up charges.[27]

   [27]Reasons, [158]–[163].

Submissions of the parties

1. The applicant submitted that the sentences imposed were outside the range of what was reasonably open in all the circumstances. While not determinative, the prosecution’s concession before the sentencing judge that a CCO was within range is notable. The applicant pointed to the lack of premeditation in the offending and the nature of the sexual touching to submit that it fell at the lower end of the scale for such offending. The applicant highlighted his early guilty pleas, remorse and prospects of rehabilitation, the delay involved, the increased burden of imprisonment and the principle of totality to argue that the total effective sentence imposed was manifestly excessive.

2. The respondent submitted that notwithstanding the prosecution’s concession before the sentencing judge as to the appropriateness of a CCO, it was open to the judge to impose the sentences he did. The respondent argued that the offending was serious, involving breaches of trust and having significant impact on young girls who had been attending a salon for a haircut dressed in their school uniforms and girls starting out in the workforce. The offending was brazen and persistent. It involved six separate victims. The applicant has subsequent convictions for like offending with two further victims. The respondent argued that it was clear from the Reasons that the sentencing judge took into account all of the matters upon which the applicant could call in aid of mitigation of sentence and appropriately balanced these against, particularly, the need for community protection and general deterrence.

Analysis

1. As is often stated, an appeal against sentence on the basis of manifest excess requires more than that the appellate court would have imposed a different sentence. Rather, the sentence under consideration must be ‘wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion.’[28] Absent specific error, the sentence on its face must reveal underlying error.

   [28]Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).

2. That is no easy matter to establish,[29] but we are of the view that it has been in this case.

   [29]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

3. The description of the offending conduct as brazen, persistent and involving a breach of trust cannot be gainsaid. Nor can the characterisation of sexual offending against children as serious. General deterrence, denunciation and appropriate punishment were clearly relevant sentencing considerations. That said, the applicant’s conduct fell towards the lower end of the spectrum of such offending and he had significant matters in mitigation of sentence.

4. There is no need to rehearse all of those matters but, in particular, we note that his prospects of rehabilitation were positive. Not only was he found to be a low risk of re‑offending by Ms Lechner, but he had not in fact offended since 2013. Further and separately, both limbs of delay were very relevant to the sentencing exercise. The proceedings hung over the applicant’s head for some three and a half years and he had not offended in the decade between the last offence and the imposition of the sentence.

Conclusion

1. For these reasons we concluded that we must grant leave to appeal, allow the appeal and set aside the sentences imposed by the judge. Taking into account the matters to which we have referred, we sentenced the applicant as follows.

2. On each of charges 1 to 4, inclusive, of the first indictment, we sentenced the applicant to one months’ imprisonment. On charge 5 of that indictment we sentence him to two months’ imprisonment. On charge 1 of the second indictment we sentence the applicant to three months’ imprisonment. On charge 2 of that indictment we sentence him to four months’ imprisonment.

3. The sentence on charge 2 of the second indictment was ordered to be the base sentence. One month of the sentence on charge 5 of the first indictment was ordered to be served cumulatively on the base sentence. All other sentences were ordered to be served concurrently.[30] The total effective sentence is thus five months’ imprisonment.

   [30]We sentenced the applicant as a serious sexual offender on charges 3 to 5 on the first indictment, and on both charges on the second indictment.

4. For the purposes of s 6AAA of the Sentencing Act 1991, we declared that, if not for the applicant’s pleas of guilty, we would have sentenced him to 12 months’ imprisonment.

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