Reasons for Decision: Sentencing

Court File No.: CR 24-50000398
Date: 2025-03-26
Ontario Superior Court of Justice
Between:
His Majesty the King – and – William Gallerno

Appearances:
Sunita Malik, for the Crown
William Gallerno, self-represented
Ingrid Grant, Amicus Curiae

Heard at Toronto: March 19, 2025

Introduction

[1] Mr. Gallerno was convicted on a single charge of aggravated assault contrary to s. 268 of the Criminal Code following a trial before me sitting as judge alone. I delivered oral reasons for judgment which described the circumstances of the offence in more detail than the brief summary I shall provide here.

[2] Ms. Assenza was walking westbound on Queen Street near Parliament at approximately 3:30 pm on February 3, 2023. Mr. Gallerno was walking in the opposite direction. As he passed Ms. Assenza, a woman in her mid-sixties, he delivered a full-body punch to the head of Ms. Assenza without warning, knocking her down. The blow came without any form of warning and there is no suggestion of the remotest connection between victim and assailant beyond where they happened to be at that moment. Mr. Gallerno then continued on his way as if nothing had happened. The assault was captured on a surveillance video camera.

[3] Ms. Assenza received extensive injuries from this assault. She required surgery to one eye. Her broken jaw was wired for a considerable period of time and a shattered tooth that remains in her jaw requires root canal surgery to repair that has not yet been able to be performed due to her other injuries. She was left with months of intense pain. What impact these injuries had on her developing neurological condition cannot be stated with certainty. The blow was of such severity that Ms. Assenza believed that a weapon must have been used (although none was).

[4] Mr. Gallerno represented himself with the assistance of Amicus but presented no evidence. Following his conviction by me, he addressed the court and apologized to Ms. Assenza for the harm done to her and said that he had no memory whatsoever of the incident due to his state of addiction and the drugs he was consuming at the time.

[5] At the sentencing hearing, I received the victim impact statement of the victim’s husband who also testified at trial. I am fully satisfied of the devastating impact upon the health and well-being of Ms. Assenza. The physical impact of this assault is far from fully healed despite the passage of time – her shattered tooth root in particular threatens to make still further trouble in future. Her mental well-being, already under assault for unrelated reasons, has been severely troubled making her even more dependent upon her husband and haunted by fears and symptoms of what can only be described as post-trauma stress.

Aggravating and Mitigating Circumstances

[6] The aggravating circumstances of the assault have been described by me at length: the unprovoked nature of the assault, the severity of the impact upon the victim in particular stand out. Mr. Gallerno’s prior history of criminal involvement over the past three decades including his most recent history reflects frequent entanglements with the law involving assaults.

[7] Mr. Gallerno is entitled to consideration of the mitigating circumstances arising from the conditions of his pre-trial detention. The lock-down report obtained by Amicus illustrates the frequent full and (more frequent) partial lockdowns that have become frequent enough at Toronto South to almost be taken for granted – but should not. There was also a month where he was frequently subjected to triple bunking. He is entitled to consideration in mitigation of sentence on that account.

[8] Mr. Gallerno defended himself at trial as was his right. Following trial he has expressed remorse for the impact upon the victim and pleaded an entire lack of memory. I accept his sincerity in that regard to a degree, but I note that he defended himself actively despite having high quality video of himself that he could not have failed to recognize. That is certainly not an aggravating circumstance of course, but it limits the weight of the post-conviction remorse that he has expressed.

[9] Mr. Gallerno is of aboriginal heritage. While he has declined to have a Gladue Report prepared, it is clear that much that has happened in his life must be viewed through a lens that accounts for his heritage and the challenging circumstances of his youth – some of which he has explained to me and other aspects of which can be inferred from a deep dive into his record. I am conscious of this and it has played a material role in my fashioning what I hope is a balanced and fair sentence accounting for all of the circumstances before me.

Pre-sentence Custody

[10] Mr. Gallerno has been detained since his arrest on April 24, 2023. However, his time served up until January 24, 2024 was credited to other sentences he received. For the purposes of this case, his pre-trial detention began on January 24, 2024 being the date on which he would have been released but for this charge. This results in a calculation of actual time served of 427 days which, when grossed up at a rate of 1.5 x pursuant to s. 719(3.1) of the Criminal Code, results in a net credit for pre-sentence custody of 641 days.

[11] The sentence shall accordingly reflect a credit for pre-sentence custody credit of one year and 276 days pursuant to s. 719(3.1) of the Criminal Code.

Disposition

[12] The crime that Mr. Gallerno has committed is a serious one. It has had a devastating and long term impact upon its victim. The degree of violence shown, the random and unprovoked nature of the attack and the length and nature of Mr. Gallerno’s prior convictions all strongly tilt the balance of sentencing principles towards protection of society from Mr. Gallerno and denunciation and deterrence, both general and specific.

[13] On the other hand, Mr. Gallerno’s life of frequent homelessness and constant struggle with addiction persuade me that a further, focused effort towards rehabilitation has the potential of offering a more durable “fix” for Mr. Gallerno. He is at a turning point in his life. He has very young twin children whom he has unfortunately met only briefly due to his incarceration. The pandemic shut down what was at least a potentially promising effort to assume the responsibilities of regular employment as a necessary building block of a productive life and thrust him back into a world of joblessness and homelessness. I have the sense that Mr. Gallerno is prepared to make a good faith effort to treat his addictions and turn a page. I am not naïve about the prospects of success. Further incidents similar to the one before me – should they occur – will almost certainly lead Mr. Gallerno to the dangerous or long-term offender stream from which his emergence cannot be predicted with any confidence.

[14] I do not feel that a five year sentence as sought by the Crown is a fit and proper sentence in all of the circumstances. Mr. Gallerno’s prior sentences have all been in the one year or less range. This crime undoubtedly orders of magnitude more serious and grave when viewed from many perspectives. However, it lacks any sense of planning, premeditation or motive. That is not to excuse it in the slightest. Even Dr. Jekyll bears responsibility for the actions of Mr. Hyde once alerted to how and why the latter personality emerges. Mr. Gallerno has had enough experience of the violence he has engaged in while under the influence of his addiction to know the consequences even if this incident stands out in so many ways from his past brushes with the law. A five year sentence would be crushing and yet would offer society only limited incremental separation from Mr. Gallerno and the risks he potentially exposes society to when he surrenders to his addictions.

[15] The sentence I am imposing is, in effect, a last chance. If Mr. Gallerno is able to pursue – and actively – the kinds of rehabilitation programs that are available to him and if he continues to pour himself into that effort after his release, his chances of avoiding a relapse are good. The sentence I am imposing is one of one year six months. This sentence is arrived at after taking into consideration his pre-sentence custody pursuant to s. 719(3.1) of the Criminal Code. Prior to such reduction, the sentence would be three years and three months.

[16] It is my very strong recommendation that Mr. Gallerno serve this sentence in one of the three Ontario facilities that have the capacity to offer him immediate and intensive treatment for his addiction and mental health issues whose influence and impact upon his life are written in bold type across his entire carceral history. These do not absolve him from responsibility for his actions but they do cry out to be addressed and I believe that he is finally at a stage in his life where he is prepared to address them and recognizes that this is in effect his last chance to do so before the penal system treats him with a considerably greater degree of harshness than it has done until now should he re-offend. The three facilities that I have in mind are the St. Lawrence Valley Correctional and Treatment Centre, the Algoma Treatment and Remand Centre and the Ontario Correctional Institute. I am sure the correctional authorities who shall be taking custody of Mr. Gallerno will give this recommendation the serious consideration that it deserves.

[17] I have concluded that probation cannot be ordered where the sentence imposed prior to the application of s. 719(3.1) is in excess of two years as much as a term of probation would be eminently desirable in this situation. Were I to have such jurisdiction, I should have ordered a probation period of two years with conditions to be determined by the parole board but with particular emphasis on avoiding alcohol and non-prescribed narcotics of any kind and actively participating in and making available to his parole officer the results of therapy and counselling programmes designed to re-enforce his stated determination to defeat his addictions and build a productive life outside of the prison system that he has so frequently been entangled with. A probation order would also continue the non-contact order for the duration of the term of probation.

[18] A non-contact order with the victim or her family shall also issue.

[19] Accordingly, I sentence Mr. Gallerno to a term of imprisonment of one year and six months which sentence reflects a sentence of three years and three months less 427 days of pre-sentence custody credited at 1.5 x (or 641 days) pursuant to s. 719(3.1) of the Criminal Code.

[20] In addition to his term of imprisonment, he shall be subject to the following ancillary orders:

a. A lifetime weapons ban under s. 109 of the Criminal Code;

b. A mandatory DNA sampling order; and

c. An order prohibiting contact with Ms. Assenza or her family for the duration of his custody.

S.F. Dunphy

Date: March 26, 2025