R v GIACALONE [2000] NSWCCA 116

New South Wales Court of Criminal Appeal

CITATION : R v GIACALONE [2000] NSWCCA 116 FILE NUMBER(S) : CCA 60347/99 HEARING DATE(S) : 15/03/00, 17/03/00 JUDGMENT DATE : 17 March 2000

PARTIES : REGINA v Tomas John GIACALONE JUDGMENT OF : Ireland J at 13; Simpson J at 15; Barr J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0208-12 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : Crown: DC Frearson Appellant: In Person SOLICITORS : Crown: SE O'Connor Appellant: In Person

DECISION : Leave to appeal granted; appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60347/99

IRELAND J SIMPSON J BARR J

Friday, 17 March 2000 REGINA v Tomas John GIACALONE JUDGMENT

1 BARR J: Tomas Giacalone seeks leave to appeal against sentences imposed upon him by Gibson DCJ of Queens Counsel in the District Court. He pleaded guilty to a number of charges of robbery and stealing. On five occasions between 20 October 1997 and 6 January 1998 he robbed defenceless women of their handbags and their contents in the streets of suburbs of Sydney. On another occasion he assaulted a woman with intent to rob her. On another he assisted a man he knew had committed a similar offence. On another he allowed himself to be carried in a conveyance he knew was stolen. 2 For the most serious of the offences his Honour sentenced the applicant to seven years' imprisonment, comprising a minimum term of three and a half years and an additional term of three and a half years. For all except one of the remaining offences his Honour sentenced him to concurrent fixed terms of two and a half years. For the final offence his Honour imposed a concurrent term of one and a half years. His Honour also took into account under the provisions of s 21 of the Criminal Procedure Act two offences of being an unlicensed driver and another of creating a public mischief. The practical result was imprisonment for seven years with a minimum term of three and a half years. 3 In his written submissions the applicant submitted that the sentences were manifestly excessive, that his Honour gave insufficient weight to the effects of the death of his father, to his prospects for rehabilitation and his participation in drug and alcohol programs, to his contrition, to his admissions and plea of guilty and to his good work history. 4 In oral submissions before this Court, he also pointed out that this was the first sentence of full-time custody imposed upon him. He has been previously imprisoned for charges of break, enter and steal and that was in September 1996, but the sentence there was for nine months' periodic detention. 5 His Honour made reference to the features pointed to by the applicant and that being so, his submission really comes down to an assertion that the total effective sentence was outside the range of his Honour's proper sentencing discretion. 6 The applicant was twenty-seven years old when sentenced. He was born in Spain and arrived in Australia with his family in 1970. The family was a good and supportive one, apparently. The applicant left high school at fifteen years of age and eventually got a job as a car detailer. Over the years he had a number of jobs in the car detailing industry and as a process worker. Then he became a baker's assistant and worked night shift. He had an impressive work history. 7 Then, about a year before the events giving rise to these matters, his father committed suicide and the applicant found his body. He was very badly affected and, according to the author of the pre sentence report that was put before the sentencing judge, became involved in criminal activity for the sake of friendship. The report said that the behaviour seemed out of character. 8 There is some substance for that assertion. Although, as his Honour found, the applicant was drinking and using pot and amphetamines from a young age and was before the Children's Court and then the Local Court on property and other offences between 1980 and 1990, he seems to have settled down after that. It was after his father's death that he became addicted to the use of heroin and, as his Honour found, it was that addiction that was the motive for the offences now under consideration. He snatched women's handbags because he needed the money to buy the drugs. 9 Some of his victims were dragged along the street when they resisted his attacks. Evidence showed that one of them, Ms Rota, suffered severe bruising to the face and body and an injury to her left eye. She had to receive medical treatment for her injuries on six subsequent occasions. That was the count on which his Honour imposed the longest sentence. 10 It seems to me that his Honour paid proper regard for the need to impose sentences likely to deter others who might be motivated to act in a similar way. The fact that the applicant's addiction to heroin underlay his actions did not mitigate his criminality. It seems to me that his Honour paid proper regard to the applicant's confessions and subsequent pleas of guilty. His Honour accepted that the applicant was genuinely remorseful. 11 In my opinion, his Honour paid proper regard to the applicant's work history and to the prospects for his rehabilitation. Indeed it was those considerations that caused his Honour to reduce the minimum term to one-half of the effective sentence so as to promote the applicant's prospects of rehabilitation. 12 I see no error in his Honour's approach. In my opinion, the total effective sentence imposed by his Honour and the minimum term were well within the range of his Honour's sentencing discretion. I would grant leave to appeal but would dismiss the appeal. 13 IRELAND J: I agree. It has been said many times in this Court that this is a court of error and not a court of review. It is important to make that point, particularly when an applicant appears in person, that is to say, unrepresented by a lawyer. 14 The jurisdiction or power which this Court exercises is enlightened by the establishment of an error on the part of the sentencing judge. The issue is not whether the members of this Court, had they been determining what was an appropriate sentence, would have done something different. The question is did the sentencing judge fall into error. In my view he did not and for that reason I agree with Barr J and with his reasons. 15 SIMPSON J: I would not wish it to be thought I regard offences of this kind other than very seriously indeed, but there are two matters which, in my view, make this case unusual. 16 The applicant, whilst having had brushes with the law in his early years, had managed to remain crime free for a period of six years from 1990 to 1996. His further descent into criminality was precipitated by the tragic circumstances of his father's suicide and his role in being the first to discover that fact. In my opinion, the applicant deserved credit and greater credit than he was given for his successful rehabilitation during those years, and recognition of the circumstance that brought him to reoffend. 17 I am satisfied that the sentences imposed of themselves show that inadequate attention was given to this circumstance. 18 I would have proposed that leave to appeal be granted, the appeal be allowed in relation to the third count and that in lieu of the sentence imposed in relation to that count, the applicant be sentenced to a total term of penal servitude for six years made up of a minimum term of two years nine months and an additional term of three years three months. I would not have interfered with the remaining sentences. 19 IRELAND J: The order of the Court will be as proposed by Barr J. **********