Galliano v The Queen [2000] FCA 130 (10 February 2000)

Last Updated: 28 February 2000

FEDERAL COURT OF AUSTRALIA

Galliano v The Queen [2000] FCA 130

PATRICIA ANNE GALLIANO v THE QUEEN

A78 OF 1999

SPENDER, MILES and MATHEWS JJ

10 FEBRUARY 2000

CANBERR

AIN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A78 OF 1999

On appeal from a single Judge of the Supreme Court of the Australian Capital Territory

BETWEEN:	PATRICIA ANNE GALLIANO Appellant
AND:	THE QUEEN Respondent
JUDGES	SPENDER, MILES and MATHEWS JJ
DATE OF ORDER:	10 FEBRUARY 2000
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The sentences imposed by Gallop J on 22 September 1999 be varied by substituting 16 February 2004 for 16 February 2005 as the date for expiration of the non-parole period.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A78 OF 1999

On appeal from a single Judge of the Supreme Court of the Australian Capital Territory

BETWEEN:	PATRICIA ANNE GALLIANO Appellant
AND:	THE QUEEN Respondent

JUDGES	SPENDER, MILES and MATHEWS JJ
DATE:	10 FEBRUARY 2000
PLACE:	CANBERRA

REASONS FOR JUDGMENT

SPENDER J:

1 I agree with the order proposed by Mathews J for the reasons her Honour has given. In my opinion the reduction in the non-parole period suggested by her Honour is consistent with the observation by Dr William Knox in the report to which Mathews J referred, where Dr Knox said:

"She does have the potential to regain control of her life and use her considerable intelligence to construct an appropriate structure for her life".

2 The order of the Court is that the appeal be allowed and the sentence imposed by Gallop J on 22 September 1999 be varied by substituting 16 February 2004 for 16 February 2005.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .

Associate:

Dated: <> February 2000

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A78 OF 1999

On appeal from a single Judge of the Supreme Court of the Australian Capital Territory

BETWEEN:	PATRICIA ANNE GALLIANO Appellant
AND:	THE QUEEN Respondent
JUDGES	SPENDER, MILES and MATHEWS JJ
DATE OF ORDER:	10 FEBRUARY 2000
WHERE MADE:	CANBERRA

REASONS FOR JUDGMENT

MILES J:

3 Yes, I also agree, I have nothing to add.

I certify that paragraph numbered 3 is a true copy of the Reasons for Judgment herein of the Honourable Justice Miles.

Associate:

Dated: 17 February 2000

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A78 OF 1999

On appeal from a single Judge of the Supreme Court of the Australian Capital Territory

BETWEEN:	PATRICIA ANNE GALLIANO Appellant
AND:	THE QUEEN Respondent

JUDGES	SPENDER, MILES and MATHEWS JJ
DATE:	10 FEBRUARY 2000
PLACE:	CANBERRA

REASONS FOR JUDGMENT

MATHEWS J:

4 The appellant appeals to this Court against the severity of sentences imposed by Gallop J on 22 September 1999 after the appellant pleaded guilty to four counts of arson and one of taking and using a motor vehicle without authority. A further offence of driving while disqualified was taken into account by his Honour under s448 of the Crimes Act 1900 (ACT). His Honour imposed a sentence of two years' imprisonment for each arson charge, to be served cumulatively, and a concurrent sentence of 12 months in relation to the motor vehicle offence. The sentences, which totalled eight years, were directed to date from 27 December 1998, being the date upon which the appellant first went into custody in relation to these offences. A non-parole period was imposed to commence on 25 November 1995, this being the commencement date of sentences which the appellant was serving at the time of the present sentencing. A non-parole period was specified to expire on 16 February 2005.

5 At the time of the appellant's sentencing for these offences, she was in custody serving the balance of a sentence following the revocation of her parole. Her sentence was due to expire on 17 February 2002. Accordingly, the fresh non-parole period set by the sentencing judge added an additional three years onto the term which she was then serving.

6 The facts of these offences, briefly, are as follows. On the night of 27 December 1998, the appellant, who was heavily intoxicated, left her home in Latham, ACT, and walked to a nearby cul-de-sac. There she came across a vehicle parked in the street and, using a cigarette lighter, she set it alight, totally destroying the vehicle. She then used a key which she had in her possession to enter a Corolla Station Wagon which was parked nearby. She drove this vehicle down to the Woden area. There she stopped beside a parked car at the edge of the road, and again using her cigarette lighter, she set fire to the vehicle. She was disturbed by passersby and left in the stolen Corolla. The fire was extinguished before much damage was caused. The appellant then drove to the carpark of the Woden Tradesmen's Club and set alight the hubcap of a third vehicle. This fire did not spread and only minor damage was caused to the vehicle. She then travelled to a nearby group of residential units where she set fire to a fourth car, this time a Holden Commodore which was parked immediately beneath the unit belonging to the owner of the car.

7 At this time, police approached the appellant, saw that the vehicle was alight, and she was arrested. She participated in a taped record of interview in which she admitted stealing the Corolla and setting fire to the Commodore, but denied involvement in the earlier acts of arson. However, on 29 July 1999, she pleaded guilty in the Supreme Court to all charges. On 22 September 1999, the sentences I mentioned earlier were imposed by his Honour.

8 There are a number of unusual features in this case. Probably the most striking of these is the very significant similarity between these offences and a series of offences committed by the appellant a little over three years earlier, on 25 November 1995. On that occasion the appellant drove around the Belconnen area in the early hours of the morning in a Toyota Corona which she had stolen using a similar key. She set fire to four separate cars using a cigarette lighter. Two of the cars were parked underneath blocks of units. In one case the fire spread to the block of units causing significant damage.

9 On 9 April 1996 the appellant was sentenced by Gallop J to a total of five years imprisonment, being cumulative sentences of one year each in relation to four charges of arson and to one charge of taking and using a motor vehicle. A non-parole period of two years dating from 25 November 1995 was set. She was released to parole on 24 November 1997 and was on parole when the present offences were committed. On her arrest she was refused bail, and on 18 February 1999 her parole was revoked. She was returned to custody into the New South Wales prison system to serve the whole of the balance of the term under the previously imposed sentences. These sentences, as already mentioned, are due to expire on 17 February 2002.

10 The appellant is now aged 26. She has accumulated an unenviable record, most of her convictions relating to the use or abuse of motor vehicles. A lengthy report from Dr William Knox, a consultant psychiatrist, was before Gallop J when he sentenced the appellant in April 1996, and again when he sentenced her in relation to these offences. This report shows that although the appellant was suffering from no frank psychiatric illness, she was, as Dr Knox described:

"a most troubled person in regard to her ability to manage her emotional life to the benefit of herself and indeed the community. Her psychological functioning is not normal; it is neither healthy not competent."[sic]

11 Dr Knox diagnosed her as suffering from depression to a moderate degree.

12 Between August and December 1998, whilst on parole for the earlier offences, the appellant undertook counselling with a psychologist, Kate Burrell. A very lengthy report from Ms Burrell was before Gallop J, when he sentenced the appellant in relation to these offences. Ms Burrell's diagnosis, in agreement with Dr Knox, was that the appellant was suffering from depression to a moderate degree.

13 On all accounts the appellant is an intelligent person. The quite impressive written submissions which were furnished to us today, are illustrative of this. She enrolled in tertiary studies after completing her schooling, but she lacked the perseverance to continue with them. Her history shows a continuing pattern of alcohol abuse, including binge drinking, which is no doubt related to her underlying psychological problems. Both series of arson offences were committed when she was heavily intoxicated.

14 The appellant represents herself in these proceedings. She makes no complaint as to the length of the head sentence, and this, in my view, is a legitimate approach. It could not be urged that eight years was an excessive sentence in the light of the objective seriousness of these offences, particularly having regard to the appellant's background. However, she complains that the non-parole period, being the total period of time which she will be required to serve in prison before becoming eligible for release on parole, is, in the circumstances, excessive.

15 It will be remembered that this non-parole period was reached by his Honour adding a further three years on to the totality of the sentence which the appellant was serving at the time of sentencing (and indeed will still be serving for another two years). It could not be suggested that a three year non-parole period on its own was excessive in relation to these offences. If the sentences had simply amounted to a head sentence of eight years with a non-parole period of three years, no legitimate complaint could have been made. However the situation here was more complex, because of the term of imprisonment which the appellant was already serving. In these circumstances it is necessary to have regard to the total time which will be spent in custody under both sentences. Adopting this approach, I consider that the non-parole period set by his Honour was inappropriately long.

16 It is to be noted in this regard that the non-parole period set by his Honour, which is to expire in February 2005, is only 22 months short of the head sentence of eight years. Eight years, as I have already said, was an appropriate head sentence for these offences. It takes into account the principles of deterrence and retribution, both being highly relevant considerations in the circumstances of these offences. But principles of rehabilitation are more appropriately relevant to periods actually spent in custody. In this case the appellant's quite impressive submissions go almost entirely to the matter of rehabilitation. She is committed, she says, to receiving treatment and counselling in an endeavour to resolve her psychological and emotional problems which were directly related to the commission of these offences.

17 The appellant also urges that her moral culpability for these offences was reduced, having regard to her psychological dysfunction at the time. She says that she is now committed to resolving these psychological and emotional problems. If she does, she plainly has the capacity to serve as a valuable and contributing member of the community.

18 In my view, given the appellant's background, a period of 22 months in the community under supervision is inadequate. A longer period is required, particularly having regard to the length of the head sentence. This can only be achieved by reducing the non-parole period. I would accordingly reduce the non-parole period by one year, so that it expires on 16 February 2004.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews .

Associate:

Dated: 17 February 2000

Counsel for the Applicant:	In person
Solicitor for the Applicant:
Counsel for the Respondent:	Mr R Refshauge
Solicitor for the Respondent:	Director of Public Prosecutions
Date of Hearing:	10 February 2000
Date of Judgment:	10 February 2000