R v Gallo No. Sccrm-02-64

R V GALLO
[2002] SASC 172
Court of Criminal Appeal: Doyle CJ, Perry and Lander JJ

DOYLE CJ. I agree with the reasons given by Lander J for the orders that the Court made on the hearing of this appeal.
PERRY J. I concurred in the order made on the hearing of this appeal, that the non-parole period be reduced to six months. I agree with the reasons now published by Lander J for taking that course.
LANDER J. This is an appeal against sentence.
At the conclusion of the hearing the Court announced that the appeal would be allowed but only for the purpose of reducing the non-parole period set by the District Court Judge. These are my reasons for that order.
The appellant was charged with assault with intent to rape and indecent assault. Both offences were said to have been committed in March 2001 at Renmark on the same woman at the same time.
The appellant pleaded guilty to indecent assault which was accepted by the Crown in full satisfaction of the information.
On 28 February 2002 he was sentenced to be imprisoned for 15 months and a non-parole period of nine months was set.
The circumstances of the offending are somewhat bizarre. At the time of the offence the appellant was aged 62 years. He had no relevant prior convictions. He was a married man with four adult children.
On the day in question he visited the home of an 81 year old widow. He offered her some fruit. He then told her he loved her and offered to give her $50 for sex. He put his arms around her. She rejected his advances. He then squeezed both her breasts so firmly that she suffered quite extensive bruising.
A psychologist’s report which was tendered contained an opinion that the offending was “a spontaneous inappropriate over-familiarity”.
The appellant was an acquaintance of the victim. The victim and her husband had bought tomatoes from the appellant and his wife and the victim had occasionally given the appellant’s wife a lift into town, where she and the victim assisted each other with shopping.
The appellant was born in Rosana, Italy on 28 October 1938 and migrated to Australia in 1966 at the age of 28. When he came to Australia he was married with three children and his family joined him shortly after. He now has four children aged 40, 36, 35 and 32, all married with children.
The appellant had a limited education, prior to immigrating to Australia. He worked on a farm in Italy. Initially, on entering Australia he lived in Victoria and worked in the tobacco industry. He worked in that industry for 15 years before moving to the Riverland where he purchased land. He has grown fruit on that land. The appellant worked hard on the land but was unable to sustain an income from it. He retired about ten years before these offences and has been in receipt of a pension since that time.
In 1979 he was convicted of trafficking in a drug of addiction and sentenced to four years imprisonment with a non-parole period of 18 months.
Although the Crown did not accept it to be the case the appellant pleaded guilty to the assault at the first available opportunity. Initially he was charged with a more serious offence of assault with intent to rape. He pleaded guilty to the offence for which he was convicted as soon as the Crown indicated it would accept a plea to the lesser offence. The Crown maintained that he could have negotiated for a plea to the lesser offence earlier. I think in the circumstances of this case that is somewhat unrealistic. Apart from the plea the appellant exhibited contrition both to a psychologist, who provided a report to the Court, and through his counsel to this Court.
During sentencing submissions the Crown indicated that, whilst it viewed the matter as a serious offence which was aggravated by being committed on an elderly woman in her own home, it was open for the sentencing judge to consider suspending the sentence.
The sentencing judge, after very briefly referring to the facts, said:
“There appears to be no coherent reason why you committed this very nasty offence. To attack an elderly woman in the way that you did in pursuance of some bizarre sexual gratification is both cruel and heinous; and the responsibility that I have is the protection of the elderly people like your victim who are living alone.
I take into account your plea of guilty, your previous record and your state of health. This matter is a very serious example of the charge of indecent assault, bearing in mind your victim was defenceless and very old and the physical attack upon her was not insignificant.
The question of general deterrence in this case, in my view, far outweighs matters personal to yourself and I cannot exceed to your counsel’s request to suspend the inevitable term of imprisonment that I must. I would normally set a sentence of two years imprisonment but because of your plea of guilty I reduce that to 15 months. I set a non-parole period of nine months.”
The appellant claimed that the sentence is manifestly excessive. It is claimed that the learned judge failed to approach the sentencing task upon the basis that a sentence of imprisonment was a sentence of last resort and further failed to give consideration to whether good reason existed to suspend the sentence of imprisonment.
In my submission the first submission cannot be accepted.
The appellant’s offending required a sentence of imprisonment. Anything less would not have recognised the gravity and the circumstances of the offence.
We were taken to a number of cases where persons had been sentenced for offences of this kind. The circumstances of these offences differ so much that comparative sentences are of little assistance. However, the sentences which we referred to did not suggest that this sentence was necessarily manifestly excessive.
I do not believe the sentence of imprisonment was manifestly excessive.
This offence was committed on a elderly lady in her own home. It must have been a terrifying experience for her. She and people like her are entitled to call upon the courts to protect them from offending of this kind.
The sentencing judge has not indicated why it was he did not believe good reason existed for suspending this sentence. A sentencing judge is not obliged to record every submission which has been made to the court. Nor is the judge obliged to set out every circumstance which has been relied upon for the exercise of a discretion and in particular why a sentence has not been suspended. In this case it was sufficient for this judge to merely indicate that no good reason existed for suspending the sentence.
This Court is not entitled to substitute its discretion for that of the sentencing judge. This Court must be satisfied that the sentencing judge erred in the exercise of his discretion in paying regard to irrelevant matters or failing to have regard to relevant matters. The appellant was unable to demonstrate any error, in that regard.
I do not believe it can be said that the sentencing judge erred in not suspending the sentence of imprisonment.
The appellant has, apart from the one conviction to which I have referred, lived a blameless life. He has established himself in a new country at a mature age. He has raised four children and assisted in raising a number of grandchildren. He has provided for himself, his family and his extended family and all of those people are making a worthwhile contribution to the community.
He is an elderly man who continues to support his wife. The offence was quite out of character and there is little prospect of further offending. He is an excellent candidate for rehabilitation.
Those matters were all relevant for the purpose of determining the appropriate non-parole period. Because of those matters, in my opinion, the non-parole period of nine months was excessive and manifestly so.
For those reasons I joined in the order made by the Court that the non-parole period should be reduced to six months but that otherwise the appeal should be dismissed.

[2002] SASC 172

13 June 2002