Balassis v The Queen
[2010] VSCA 296
•11 November 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2009 0583
| GEORGE BALASSIS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN, NEAVE and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 October 2010 |
| DATE OF JUDGMENT | 11 November 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 296 |
| JUDGMENT APPEALED FROM | R v Balassis [2009] VSC 127 (Osborn J) |
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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to five counts of rape, one count of attempted rape, four counts of administering a drug for the purposes of sexual penetration, two counts of indecent assault, two counts of indecent act and one count of recklessly causing injury – Limited prospects of rehabilitation – Primacy of protection of the community – Need for appropriate cumulation – Appellant sentenced to a total effective sentence of 20 years’ imprisonment with non-parole period of 16 years – Whether sentence imposed manifestly excessive – Appeal dismissed – Evidence Act 1958, s 41G.
CRIMINAL LAW – Appeal – Sentence – Sentencing judge made finding about the appellant’s dysfunctional personality – Whether such a finding open on the evidence – Whether natural justice afforded – Appeal dismissed.
WORDS AND PHRASES – “resipiscence”.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Melasecca Kelly & Zayler |
| For the Crown | Mr B L Sonnett | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
In my opinion, the appeal should be dismissed for the reasons stated by Neave and Tate JJA.
NEAVE JA
TATE JA:
By orders made on 1 April 2009, the appellant, George Balassis, was sentenced to a total effective sentence of 20 years’ imprisonment with a non-parole period of 16 years.[1] The total effective sentence was imposed with respect to five counts of rape, one count of attempted rape, four counts of administering a drug for the purposes of sexual penetration, two counts of indecent assault, two counts of indecent act and one count of recklessly causing injury. The offending took place over a period of three years from July 2004 to July 2007 and involved seven victims, one of whom, CA, was, at the time of the offence, 14 years of age. The other victims can be referred to as LT, PM, CS, DJ, MS and RB. At the time all the offences were committed, the appellant was over 40 years old.
[1]R v Balassis [2009] VSC 127.
The appellant pleaded guilty to all 15 counts. With respect to CA, the appellant entered a plea of guilty after CA gave evidence and was cross-examined at a special hearing in accordance with s 41G of the Evidence Act 1958. The prosecution conceded that the pleas of guilty had to be given substantial weight save with respect to the charges relating to CA. The sentencing judge said that a viewing of the tape of the evidence given by CA demonstrated that her evidence was both cogent and compelling. He said that it was difficult to escape the inference that the appellant’s subsequent pleas of guilty with respect to the charges relating to CA were in response to the overwhelming probability that the appellant would be convicted of those charges founded upon the evidence given by CA.
The sentencing judge accepted, however, that with respect to the pleas given
to the charges relating to the other six victims, they had to be given full weight as evidencing remorse, as protecting the victims from the need to go through the emotional and psychological stress of a trial, as bringing the stress from the trial process to a swifter conclusion and as saving the State of Victoria and the community direct cost, resource requirements and the difficulties of conducting a complex trial.
The seven victims were, apart from one, not previously known to the appellant. He met them in or around the Melbourne CBD area and/or railway stations, and in one instance at a house in Oakleigh. Each of the offences occurred after the appellant had taken drugs and often drugs in combination with alcohol. Some complainants also had alcohol and/or drug problems. The appellant would share drugs and/or alcohol. With the exchange of drugs there was often sexual activity which occurred when the victim was so affected by the consumption of drugs as to be unable to consent. With respect to three of the victims, the appellant administered drugs specifically with the intention of rendering his victims incapable of resisting and thereby to enable himself to take part in acts of sexual penetration, the victims being LT (count 3), PM (count 4), and CA (counts 6 and 11).
We draw on the sentencing judge’s account of the circumstances of the offences, derived from a statement of Agreed Facts, in which the gravest offending involved CA (counts 6 to 12).
On 14 April 2007, CA went to visit a friend, Ms JH, and got off a train at Richmond station. She had been drinking wine and felt light-headed. As she was walking from the station CA had been talking to Ms JH by mobile phone. Whilst CA was on the phone, the appellant approached her and showed her a plastic bag containing white crystals. The appellant told her that it was $200 worth of crystal or crystal meth which CA took to mean amphetamine. CA told Ms JH that she would call her back. She left the station with the appellant and she introduced herself as ‘China’. The appellant told her that amphetamine with alcohol was awesome and that she should try it. The appellant and CA went to a bottle shop. The appellant bought a bottle of Vodka and he and CA shared the cost. The appellant and CA continued walking to his home with CA falling over a number of times because she was drunk. As she accompanied the appellant she kept saying she wanted to go back to the station. The appellant said he would take her back but he needed to get a laptop from his place.
When he reached his home he took the bottle of Vodka and mixed some of the crystals with the Vodka and drew the mixture into a syringe. He injected the mixture into his arm and told CA that she could drink it instead of injecting it. CA was sitting on his bed at this time. The appellant then mixed some of the crystals with Vodka and gave it to her. She drank it at his suggestion. These actions form the basis of count 6, a charge of administering a drug for the purposes of sexual penetration.
The appellant then repeatedly told CA to lie down, but she refused. The appellant pushed her shoulders down so that her back was on the bed but her legs were to the side. The appellant also got on the bed and rubbed her stomach and breast. That is part of the factual basis for count 7 which is a rolled up count of indecent act.
The appellant then put his hands down CA's jeans which forms a further component of rolled up count 7. CA felt very drunk and tired at the time and did not like what the appellant was doing. CA told him that she wanted to leave and go back to the station. Eventually when she got upset the appellant agreed.
The appellant then took her into a dark area of an apartment complex so that he could give her some more ice to wake her up. The appellant asked her to pull down her pants. She did. She sat on a ledge and he poured some crystals on to her clitoris with a syringe. That is the factual basis of count 8, an indecent act. He then started to lick CA's clitoris with his tongue and penetrated her vagina. He then put more of the drug on her clitoris and he then started to lick CA's clitoris with his tongue and penetrated her vagina again. Those acts constitute count 9 which is a rolled up count of rape, that being the penetration of the vagina by the tongue.
The appellant then said that somebody was coming so he and CA left and he took her to a grassy area, a park near the Yarra River. He pulled down his pants exposing a flaccid penis and told CA to suck it. She told the appellant, ‘no’, and started to cry. The appellant grabbed the back of her head and tried to force her head to his genitals. As he used force to do this CA was pushing away and pushing her body back with her hands on the grass. At one stage his genitals brushed her face. That is count 10, attempted rape, being the grabbing of the back of her head and trying to force her head to the appellant’s genitals; it is a count of attempted oral penetration.
The appellant and CA got up. CA asked him to go back to the station but he took her to a toilet block and locked the door. He mixed more of the crystals with water and drew the mixture into a syringe. He told CA to open her mouth and he put the mixture into her mouth. That is the basis for count 11, which is again a count of administering a drug for the purposes of sexual penetration.
CA was sitting on a toilet with the lid down and the appellant reloaded the syringe with more of the mixture. He told CA to pull down her pants which she did. He then put more of the mixture on her clitoris and rubbed it in with his finger. He licked CA's clitoris and penetrated her vagina with his tongue. These acts comprise part of the basis of count 12, which is a rolled up count of rape.
The appellant then penetrated CA's vagina with his fingers and this act comprises a further basis for the rape count. Count 12 thus includes the penetration of the vagina with his tongue and the penetration of the vagina with his fingers as part of a rolled up count.
During the time CA was with the appellant, they exchanged mobile telephone numbers. The appellant had consumed drugs and alcohol but nevertheless was aware on the occasion of each of the rapes comprised in counts 9 and 12, and the attempted rape in count 10, that CA was not consenting.
There were two other instances in which the appellant administered drugs specifically with the intention of rendering his victim incapable of resisting and thereby to enable himself to take part in an act of sexual penetration. With respect to LT, the relevant counts were counts 3 and 4 on the presentment, that is, administering a drug for sexual penetration and indecent assault. At the time of the offending LT was 37 years old.
On 25 March 2006, LT was walking across Flinders Street near the Young and Jackson Hotel. In the course of crossing the street she met the appellant and the two of them exchanged pleasantries. The appellant and LT then walked along Swanston Street talking. The appellant and LT agreed to get a can of Coke each and a flask of bourbon. The appellant poured some bourbon into LT's can of Coke. The appellant then placed an unknown drug in the can for the purpose of sexually penetrating LT. That is the factual basis for count 3, administer drug for the purposes of sexual penetration.
The appellant and LT then drank some of the drinks and smoked some cannabis. He and LT then took the tram towards his house. On the way LT started to feel strange. She dropped her can and when she picked it up nearly lost her balance. The appellant put his arm around her and asked if she was okay. When the appellant and LT were at his house, LT asked for water and he brought her an orange juice container filled with water. It smelt funny and she refused to drink it. She also told the appellant that she knew that he had put something in her drink, that she had taken drugs before and she says she said this in order to bluff him.
The appellant came back with a glass of water and LT was finding that her vision was blurry and it was an effort to see in front of herself. She drank the water and vomited over herself, over the appellant and on the floor. The appellant then asked what he could do for her and LT asked him to open the windows as she was having difficulty breathing and he did. He offered to wash her pants because of the vomit and LT said she would just sponge it off herself but he insisted on washing her pants. He offered her some female clothing that had been abandoned. She put on one of the appellant’s outfits over her clothes.
The appellant then started to massage LT's back as she had previously told him that she had had some discs fused. The appellant reached around and pulled off her jeans and LT felt his flaccid penis rubbing her near her buttocks and then close to her vagina. LT did not consent to any sexual activity with the appellant and he was aware she was not consenting or might not be consenting. This activity comprises count 4, the indecent assault, that is, the rubbing of the penis near her buttocks and close to her vagina. After further discussions, LT told the appellant that she needed to sit on earth and he got her possessions for her. The appellant and LT went outside and sat on the grass. Just before the appellant parted, he gave her the correct directions to Racecourse Road. LT then left.
With respect to the complainant PM, she was the victim with respect to count 5 on the presentment, administering a drug for the purposes of sexual penetration. At the date of the offending, PM was 41 years old.
On 11 March 2007, PM went to the Young and Jackson Hotel at the corner of Flinders and Swanston streets in Melbourne. She met friends there and had a good deal to drink. PM became upset because of a falling out with her boyfriend. She sat on a bench crying. The appellant was passing by. She spoke to him. He asked her if she was okay. At her request she used the appellant’s mobile phone to try to ring her boyfriend. The appellant and PM then went to the Crown Casino for drinks, then by taxi to PM's home at about 2:30 a.m. The appellant paid for the taxi.
When the appellant and PM arrived at her home, PM poured herself a glass of wine. The appellant took a red tablet and told her to take it as it would make her feel better. He told her it was like a strong Panadeine Forte. PM took the tablet and used some water to wash it down. The appellant administered the drug to her to render her incapable of resistance, thereby to enable him to take part in an act of sexual penetration. That comprises count 5. PM then has no memory until about 7:30 a.m. when she awoke on the couch lying on her stomach with cold legs. PM then realised she was naked from the waist down and the appellant was totally naked lying on the floor. He said his nakedness was because he had showered at her suggestion.
With respect to CS, the relevant count is count 1 (rape). At the time of the appellant’s offending, CS was aged 29. CS met the appellant on 20 July 2004 at an amphetamine dealer's house in Oakleigh. Both of them had gone there to obtain drugs. At that time, CS regularly used amphetamine and was on prescription Valium for anxiety attacks. CS formed the view that she and the appellant had mutual friends and acquaintances. The appellant and CS went back to CS's place. The appellant was to massage her. When the appellant arrived at CS’s home, both he and CS used amphetamine and CS also took some Valium. The massage then took place. CS took off most of her clothes. The appellant then started to try and spread her legs. CS kept closing them, then gave in. The Valium and amphetamine that she had consumed had affected her ability to consent. The appellant raised CS's hips and penetrated her vagina with his penis without her consent. At the time he had consumed drugs and was affected by them, but he was aware that CS might not have been consenting. These actions constituted count 1 on the presentment, a count of rape.
With respect to DJ, the relevant count is count 2 (rape). At the time of the offending, DJ was aged 26. On 10 August 2004, DJ went to the corner of Exhibition and Bourke streets with the intention of buying some heroin. At that time, she was in a drug rehabilitation unit. The appellant approached DJ asking her for a light for his cigarette. He then asked if she could get some heroin for him as well. DJ tried to get the appellant some of the drug but could not get it as cheaply as he wanted it so she bought it for herself only. DJ then walked into the toilet of a hotel to use the heroin. When she walked out the appellant was still there. He offered her $40. She says it was to practise his massage. The appellant says it was because she was a working girl and would also supply drugs. (The sentencing judge was unable to resolve this conflict either in favour of the prosecution beyond reasonable doubt or in the appellant’s favour on the balance of probabilities.)
The appellant and DJ took the train to Caulfield and walked to where the appellant was then living in Dandenong Road. The appellant gave DJ $30 and said that he could not give her the other $10 at that time. DJ removed her clothes except for her bra and pants. DJ was affected by the drugs she had taken. The appellant massaged her for a period of time. He then penetrated her vagina with his penis. DJ did not consent to being sexually penetrated. Further, DJ was so affected by drugs as to be incapable of giving free agreement and the appellant was aware that DJ might not be consenting. These circumstances form the factual basis for count 2, rape. After he penetrated her, DJ turned away from a kiss, but he eventually did kiss her. She asked him not to ejaculate inside her and he ejaculated on her abdomen. DJ asked him for something to clean it. He gave her a towel and, before he and DJ parted, he gave her $8 in change and his mobile phone number.
With respect to MS, the relevant count is count 13 (indecent assault). MS was aged 34 at the time of the offending. MS was a heroin user who was on the methadone program. On 28 May 2007, she went with her boyfriend to somewhere in the Collingwood or Richmond area to obtain heroin as she did not have a prescription for methadone and was feeling sick. She gave a dealer $100 for heroin but what she was given in exchange was not heroin. During the course of the night, police took her to the Richmond Police Station. When she could leave the station she called her boyfriend to collect her and she sat on a bench seat and waited for him. As she was feeling anxious and sick, she says she took about 20 Xanax tablets and started to lose consciousness. Some time after 3:00 a.m. a van pulled up near MS. The appellant was driving. He had a woman passenger. He and his passenger had been looking for drugs. The woman passenger left. MS got into the appellant’s vehicle. He says that she rubbed her hand on his leg.
The appellant and MS drove back to his house and he says that he and MS took heroin and alcohol. MS does not remember. She says that she passed out and awoke at 8:00 p.m. but fell asleep again and her memory of events is vague. The appellant says that he and MS spent a lot more time together. MS says that she collected her possessions and went walking. She thinks that she passed out in somebody's yard. When she came to, there was a love bite on her neck. She had no memory of what had happened to her and when MS went to the bathroom she found that the appellant had shaved her pubic hair. Count 13, of indecent assault, is a rolled up count comprising the love bite and the shaving.
With respect to RB, the relevant counts are counts 14 and 15 (rape and recklessly causing injury).
At the time of the offending, RB was aged 19. RB has a history of multiple drug abuse and was, at the relevant time, receiving support from the Youth Substance Abuse Service. Through that service she became friends with another woman, who introduced her to the appellant. He met RB by arrangement and she gave him some of her medication. Two nights later he rang RB asking her to arrange for him to purchase some heroin. RB told him that she could not get in touch with her dealer. The appellant and RB then exchanged drugs of different sorts a considerable number of times. They included ice and heroin. Alcohol was also consumed. The appellant and RB went to where he was living and RB described herself as ‘completely out of it, really smashed’. She passed out. When RB awoke, she was half on the couch and half on the floor, naked with her feet on the floor and her legs spread. The appellant was pulling up the zip on his pants. Then, in the process of putting the skirt back on her, the appellant penetrated her vagina with his fingers (count 14, rape). At this time, although the appellant had consumed drugs and alcohol, he was aware that RB might not have been consenting. RB abused him asking what had he done to her. He told her that he would take her home. RB asked for more heroin which she was given. RB then remembers getting out of the appellant’s car and having to be dragged inside her home. The appellant yelled at her to give him some of her Seroquel tablets which she did. At some stage during the evening, the appellant pulled a silver snake necklace off RB's neck causing cuts on her neck and that is the factual basis for count 15, recklessly causing injury. Police later found the necklace at the appellant’s home. Later he rang RB’s mobile phone. She asked him what had happened the previous night and he told her that she was really smashed, that she had drunk most of the alcohol and used most of the heroin.
The appellant was extensively interviewed by police about each complainant. He co‑operated and answered all questions put to him.
By reason of conviction on counts 1 and 2, the appellant was sentenced as a serious sex offender on counts 3-14, in accordance with the Sentencing Act 1991.
The sentencing judge sentenced the appellant as follows:[2]
[2]R v Balassis [2009] VSC 127, [87].
Count 1 rape (CS) six years’ imprisonment
Count 2 rape (DJ) six years’ imprisonment
Count 3 administer drug (LT) three years’ imprisonment
Count 4 indecent assault (LT) three years’ imprisonment
Count 5 administer drug (PM) three years’ imprisonment
Count 6 administer drug (CA) three years’ imprisonment
Count 7 indecent act [rolled up four years’ imprisonment
count] (CA)
Count 8 indecent act (CA) three years’ imprisonment
Count 9 rape – rolled up count (CA) eight years’ imprisonment
Count 10 attempted rape (CA) five years’ imprisonment
Count 11 administer drug (CA) three years’ imprisonment
Count 12 rape – rolled up count (CA) eight years’ imprisonment
Count 13 indecent assault – rolled
up count (MS) four years’ imprisonment
Count 14 rape (RB) six years’ imprisonment
Count 15 reckless injury (RB) one year’s imprisonment
His Honour directed that:[3]
[3]Ibid [88].
two years of the sentence on Count 1 (CS),
two years of the sentence on Count 2 (DJ),
six months of the sentence on Count 3 (LT),
six months of the sentence on Count 4 (LT),
six months of the sentence on Count 5 (PM),
six months of the sentence on Count 6 (CA),
one year of the sentence on Count 10 (CA),
six months of the sentence on Count 11 (CA),
two years of the sentence on Count 12 (CA),
six months of the sentence on Count 13 (MS), and
two years of the sentence imposed on Count 14 (RB)
be served cumulatively upon the sentence of eight years imposed with respect to count 9 (CA), resulting in a total effective sentence of 20 years’ imprisonment. The sentences imposed were otherwise to be served concurrently. He fixed a non-parole period of 16 years.
The sentencing judge declared, pursuant to s 6AAA of the Sentencing Act that, but for the pleas of guilty, he would have imposed a total effective sentence of 25 years’ imprisonment with a non-parole period of 21 years.
By the time the appellant was sentenced he was aged 45, having been born in 1963. He came to Australia from Greece at the age of four. His father has passed away but he still has the personal support of his mother and that of his two brothers, who are self‑employed mechanics.
The appellant grew up in South Melbourne and went to the local primary school and, in turn, completed secondary school. He gained entry to Monash University in 1982 and commenced study in Arts and Law. He did not progress far with these studies and went to La Trobe University in 1984 to undertake a Bachelor of Social Studies. While there he was an officeholder in a prominent Greek youth organisation.
While at university, he married and began operating a fish and chip shop business.
He has two sons, one born in 1992 and the other in 1993.
The fish and chip shop did not prosper and the appellant gradually increased his use of alcohol and drugs. He started using marijuana when aged about 21 and later used amphetamine and cocaine to elevate his mood. His behaviour thereafter led to the breakdown of his marriage, which ended in 2001. His subsequent employment history was erratic and he had an unsettled life centred upon drug abuse.
The appellant attended the Odyssey House drug rehabilitation program in Sydney for six months in 2004. He then returned to Melbourne but relapsed into substance abuse, chiefly using amphetamine. He then spent a further three months at Odyssey House in Melbourne. Once again, however, this period did not result in any lasting change to his substance abuse.
Since the escalation of his drug abuse, the appellant has had no fixed address for other than relatively short periods of time. He has descended into widespread acts of dishonesty resulting in convictions.
The appellant has over 150 prior convictions. These include convictions in June 1995 for possessing a drug of dependence (cannabis L); using a drug of dependence (cannabis L); possessing a drug of dependence (amphetamine) and using a drug of dependence (amphetamine), for which he was sentenced to pay an aggregate fine of $750.00 and was disqualified from obtaining any licence for a period of six months.
In June 1999, the appellant was convicted of possessing a drug of dependence (cannabis L); using a drug of dependence (cannabis L); stating false name; stating false address; and failing to wear a properly secured seat belt, for which he was sentenced to pay an aggregate fine of $600.00.
In February 2002, the appellant was convicted of unlicensed driving; driving while having a blood alcohol concentration content exceeding 0.00%; exceeding the prescribed concentration of alcohol within 3 hours of driving a motor vehicle; failing to answer bail; and obtaining property by deception, for which he was sentenced to three months’ imprisonment on each of charges 1-3, to be served by way of an intensive correction order, and he was disqualified from obtaining any licence for a period of 12 months. He was further sentenced, without conviction, to pay an aggregate fine of $800.00 on charges 4 and 5.
In October 2002, the appellant was convicted of obtaining property by deception (2 charges) and was sentenced to an aggregate term of imprisonment of four months, wholly suspended for a period of 12 months. In response to a breach of the suspended sentence, the period of suspension was extended for a period of 12 months. The sentence was ultimately fully restored in response to a further breach of the extended suspended sentence.
In December 2003, the appellant was convicted of obtaining property by deception (27 charges); attempting to obtain property by deception (4 charges); possessing property suspected of having been stolen or unlawfully obtained (2 charges); driving a motor vehicle without a permit; making a false document (4 charges); using a false document (3 charges) and theft (of motor vehicle), for which he was sentenced to an aggregate term of imprisonment of nine months, wholly suspended for 12 months. That sentence was also fully restored in response to a breach of the suspended sentence.
In August 2006, the appellant was convicted of obtaining property by deception (71 charges); attempting to obtain property by deception; obtaining financial advantage by deception (7 charges); failing to answer bail; handling stolen goods (2 charges); attempting to obtain financial advantage by deception; making a false document (3 charges); using a false document; going equipped to steal; theft (3 charges); dealing with property suspected of being proceeds of crime (4 charges); possessing a drug of dependence (cannabis L); and using a drug of dependence (cannabis L). He was sentenced to an aggregate term of imprisonment of 15 months.
In November 2006 the appellant was convicted of obtaining property by deception (3 charges) and sentenced to an aggregate term of imprisonment of two months.
By order made on 29 October 2009, Maxwell P granted leave to appeal from the sentence imposed by the sentencing judge in the instant matter. The Full Statement of Grounds upon which the appellant relies are as follows:
1.The individual sentences, total effective sentence and non-parole period are manifestly excessive and betray (a) that insufficient weight was accorded to the pleas of guilty, and (b) that double punishment occurred in the instance of the sentences imposed and/or the directions for cumulation made in respect of Counts 3, 6 and 11.
2.The learned sentencing judge erred by making findings of fact as to the appellant’s psychological disposition when such findings were unsupported by expert evidence and in circumstances where the appellant’s counsel did not have the opportunity to make submissions in respect of those findings.
Relevantly to ground 2, the appellant’s case before the sentencing judge was that it was his drug taking that contributed to his state of immaturity and that when he was free from the influence of drugs he was able to, and in fact did, show a perceptive level of insight into the effects of offending upon the complainants. His counsel said, ‘the evidence is that when he was using he was a ratbag. When he was not using he was totally charming.’ Evidence was given from the appellant’s younger brother that, ‘there’s a bit of a Jekyll-and-Hyde syndrome I suppose’ and that, ‘when he got on drugs George was a different person’. The appellant argued that it was his addiction, and ingestion of drugs, that contributed to the offending, and he relied on expert evidence given in a report by a forensic and counselling psychologist, Mr Patrick Newton, in support of that proposition.
The sentencing judge accepted that the appellant’s criminality was ‘significantly associated with substance abuse’. He observed that the appellant demonstrated a consistent pattern of predatory behaviour upon women who were either vulnerable because of their own substance abuse or their age. He rejected the appellant’s case that his substance abuse altered the appellant’s otherwise functional personality or that his character was divided in any simple sense. He concluded that the offending bespoke a deeper permanent defect in the appellant’s character, one in which the weakness of his personality was fundamental to his character as a whole.
His Honour was encouraged in his conclusions by the report of Mr Newton:[4]
In my view Mr Newton’s report encourages the view (supported both by your age and by the pattern of your offending) that you have a grossly inadequate and dysfunctional personality.
[4]Ibid [59].
Referring to the evidence of Mr Lamberti, a former Executive Director of Odyssey House in Melbourne with extensive experience in drug rehabilitation, his Honour said:[5]
He endorses Mr Newton’s view of your personality. In his view, your feelings of inadequacy and your immaturity have led to drug use and in turn such drug use has precipitated your criminal behaviour, by suppressing your inhibitions. Again I interpolate that in my view feelings of inadequacy and continuing immaturity of the sort capable of producing offending of the type you have engaged in, are not mere temporary developmental problems in a man of your age. Rather they are indicative of a major problem.
[5]Ibid [65].
His Honour referred to a letter of contrition written by the appellant that had been tendered in the proceedings, in the context of other evidence given in support of the appellant:[6]
The evidence of your family and friend also confirms your expressed remorse and shame at the circumstances which have brought you before the Court.
That remorse is eloquently elaborated in a letter written by you to your solicitors some two weeks prior to the plea made on your behalf. By its terms that letter incidentally confirms the evidence of Mr Newton that you are of above average intelligence. It also confirms Mr Lamberti’s evidence that you have insight into the significance of the consequences of your continuing drug abuse.
Your counsel submitted that the letter demonstrates true ‘recipience’. Nevertheless it seems to me that your expressions of remorse must be treated with some reserve. I say this not for the reason advanced by [the prosecution], namely that your letter should be rejected as manufactured for the purpose of your plea, but because in my view there is, as Mr Newton describes, a more disturbing underlying inadequacy and immaturity to your personality. It seems to me that fundamentally you have lived an almost entirely self-centred and self-indulgent life. You have not demonstrated any on-going capacity to respect the rights or needs of others. You have failed to demonstrate any insight into the ongoing effects of a sustained course of repeated predatory conduct. There is a real sense in which you present at 45 as the spoilt baby of your family who has never progressed to an adult life. This inadequacy is however juxtaposed with your mature age and intelligence. You have been and in my view continue to be a real danger to the community. In this context your intelligence may enable you to talk the talk, but I am far from convinced that there are good prospects from the community point of view that you will walk the walk of a more mature and less selfish and destructive way of life.
[6]Ibid [66]-[68].
On the appeal, the appellant argued that the sentencing judge erred in that he conducted a generalised inquiry into and assessment of the appellant’s lifelong moral or psychological disposition that was of little or no relevance to the imposition of sentence for the offences to which he pleaded guilty and was unsupported by evidence, in any event. It was argued that the evidence supported the inference that when the appellant was free from the influence of drugs he gained insight into his offending and acted differently. Why it was that the appellant took drugs in the first place or why he appeared to squander the advantages flowing from his intelligence and the support of his family were questions that remained unanswered on the evidence and, for that reason at least, were matters which the sentencing judge ought not to have attempted to reconcile.
It was also argued that the general conclusions drawn by the judge about the appellant’s personality traits were delivered for the first time in the reasons for sentence and therefore at a point at which the appellant’s counsel could do nothing to answer them.
We reject the appellant’s submissions and would dismiss this ground of appeal.
The findings of the sentencing judge were, in our opinion, supported by the expert evidence of Mr Newton. That evidence was based upon psychological testing involving measures which screen for the presence of psychological dysfunction, behavioural disturbance and personality problems in adults. The appellant’s answers to the psychological testing were expressed by Mr Newton to be ‘consistent with the marked level of behavioural disturbance he reported on clinical interview and were reliable and valid’. Mr Newton reported the appellant as having stated that:
he had become sexually active in his mid teens and he described a prolific sexual appetite. Mr Balassis said that he had had many sexual partners in any given year. The majority of these encounters took place in the context of brief liaisons sometimes of only one night’s duration and many of them took place in the period when Mr Balassis was using drugs.
Mr Newton recognised that there were two exceptions to these short-term sexual encounters, one being his relationship with his wife from 1987 until about 1999, although his wife had been unaware of his promiscuity and largely ignorant of his drug use until the final years of their marriage. The second long-term relationship was violent and turbulent, and beset by perennial instability. The appellant’s extensive history of drug use started from when he was 21, with marijuana use and later amphetamine and cocaine. His participation in several episodes of rehabilitation to address his drug problem had not prevented relapse into drug use.
Mr Newton observed that there was no indication that the appellant suffered any clinically significant disturbance of his mood or thought processes. Indeed, he noted that the appellant’s reality testing and capacity for moral reasoning were both intact, his intelligence falling in the average range or somewhat above. He observed:
Mr Balassis’ thought processes are normal. … Mr Balassis’ capacity for moral reasoning is normal and I do not consider that his capacity to appreciate the wrongfulness of his actions was ever compromised. Moreover, I am of the view that he was aware of the nature and quality of his actions and was capable of forming the requisite intent at the time of his offending.
Mr Newton went on to assess the failure of the appellant to develop a mature personality. He said:[7]
My assessment suggests that, notwithstanding his evident intelligence, Mr Balassis remains a very immature man for his age. Not only are his mannerisms and demeanour more in keeping with those of a younger person, but his sense of identity is also poorly formed relative to his age peers. Despite being in his 40s, Mr Balassis is still in the process of developing his views on major life issues and his sense of direction and purpose in life is still only partially in place. His drug use rendered him unable to navigate and/or sustain the psychological and developmental tasks necessary to make the transition to mature adulthood: thus, he has been unable to establish himself in a career; has been unable to maintain a mature relationship, instead participating in a succession of superficial and tumultuous relationships; and has been unable to establish a mature independent existence in the community.
[7]Emphasis added.
This assessment is not only evidence of a grossly inadequate and dysfunctional personality, as the sentencing judge correctly inferred, but it also reveals the manner in which the extensive history of severe substance use has impaired the appellant’s psychological development. On the basis of this evidence, the sentencing judge was correct to reject the argument that the appellant had demonstrated in effect a split personality, that of a ‘ratbag’ or a ‘Mr Hyde’, on the occasions in which he was using drugs, while on other drug-free occasions he was ‘charming’ or a ‘Dr Jekyll’. The evidence was rather that the appellant has been unable to establish a mature identity; that his fundamental character reflected an underlying failure to form an adult sense of identity; this was an ‘inadequacy’, again as the sentencing judge correctly inferred.
That inadequacy has had implications for the appellant’s behaviour as he has sought to compensate for his feelings of insecurity, inadequacy and self-doubt. As Mr Newton observed, the compensatory behaviour has had two distinct if inter-related threads, the compulsive sexuality and the severe drug addiction. Mr Newton noted:[8]
Mr Balassis has attempted to assuage these feelings of inadequacy in two key ways. Firstly, he has engaged in a large number of short-term sexual relationships. Through these he has sought a constant flow of approval and kudos by which to bolster his poor self-esteem. A second strategy has been his use of stimulants and other drugs. …
While such … dysfunctional attempts to bolster self-esteem are relatively common in younger men with self-esteem issues, they are not only unusual in a man of Mr Balassis’ age but also carry considerable risks. These risks are manifest both in terms of the individual’s mental and physical health, and also in forensic terms. Moreover, as the failure to resolve these developmental issues has become more entrenched in Mr Balassis’ case, the impacts he has suffered have become increasingly profound and severe. From a psychological perspective the interaction of his significant personality disturbance, chronic interpersonal difficulties and behavioural dysregulation (evident in both his compulsive sexuality and his severe drug addiction) have culminated in the offending behaviour that brings him before the Court.
[8]Emphasis added.
Thus, the findings by the sentencing judge about the psychological development of the appellant, far from being made in the absence of relevant expert evidence, as the appellant alleges, were supported by the expert evidence of Mr Newton as providing the ultimate cause of the appellant’s predatory conduct.
Furthermore, it was the appellant who sought to base his case before the sentencing judge on the nature of his personality. It was the appellant who argued that there was a split or division in his personality, the aberrant aspect of which was manifest upon the ingestion of drugs. Faced with such a submission, the sentencing judge was correct to assess whether the aberrant behaviour was more accurately attributable to a developmental defect of character.
With respect to the sentencing judge’s comments on the appellant’s remorse, it is noteworthy that the letter written by the appellant was argued by his counsel to be evidence of true ‘recipience’. This would appear to have been intended as a reference to ‘resipiscence’ which is defined as ‘repentance for misconduct; recognition of past errors’.[9] It conveys ‘something subjective concerning the prisoner, ie that he is repentant or motivated to cause no more harm’. [10]
[9]Shorter Oxford English Dictionary (6th ed, 2007).
[10]R v Lawrence (1980) 32 ALR 72, 108.
The sentencing judge rejected the submission of the prosecution that the letter was contrived. The reserve with which he treated the remorse expressed by the appellant was, in our opinion, no more than an expression of concern that the appellant’s prospects for future rehabilitation would be affected by his psychological failure to develop a functional mature personality. That view was also supported by the report of Mr Newton which stated that:
Even with optimal treatment it is conceded that Mr Balassis has a formidable and protracted treatment course ahead of him if he wishes to make real his expressed desire to change his life.
Furthermore, the sentencing judge made it clear to counsel for the appellant that he considered that the evidence of Mr Newton pointed to a deeper defect of character. During the plea hearing, the sentencing judge asked some questions of Mr Lamberti:[11]
His Honour: The offending is clearly associated with his drug use, but there are many drug users who don’t commit offences against 14 year old girls, aren’t there? … That’s correct, yes.
His Honour: It seems to bespeak a somewhat deeper permanent defect, if I could put it that way? … The drugs and alcohol don’t make someone behave that way. Those ideations, and parts of his personality, have to be there. When he’s sober he can defend them, when he’s not sober he can’t defend them, he cannot suppress them or control them, so any disinhibitor will bring those out.
His Honour [to counsel]: Is there anything arising out of what I’ve asked?
[11]Emphasis added.
While counsel for the Crown declined the opportunity to ask any further questions, the appellant’s counsel responded by asking Mr Lamberti whether, if the appellant received a term of more than five years, that would be the longest time he had been off drugs for the last 20 years, to which Mr Lamberti replied, ‘yes’.
In considering the history of drug-taking, his Honour said:
The other thing it may tend to confirm is Mr Newton’s opinion that this man is, despite his age, “a very immature individual for his age”. I suppose the difficulty is that serial contact with the criminal justice system, including prior imprisonment, has not created maturity.
At a later point in the plea, in the context of the submission by the prosecution that the appellant’s letter should be treated as a self-serving document to which little weight should be given, there was another relevant exchange. His Honour said:
I’m not sure about that, Mrs Williams. But it does seem to me that there is an underlying question about what it means long-term, and that is perhaps the more difficult question. I accept that he is intelligent and, indeed, I might say he is unusually intelligent in my judgment for someone with this sort of offending, including his priors, with a history of that kind one is perhaps surprised at the degree of intelligence and articulacy. What I am perhaps saying is that although it is always difficult to weigh up reports such as Mr Newton’s, on one view the problem is that this is not a mature response, it is not a considered response, it is not the product of an adult that one would have confidence presages some significant change in behavioural pattern. To put it another way, if he has come to this age and he is still at the point Mr Newton says he is at, then there is a serious problem there.
On these occasions the sentencing judge clearly indicated the approach he was taking to the appellant’s personality. That approach was not unveiled for the first time in the reasons for sentence. The appellant’s counsel was given the opportunity to make submissions in respect of the appellant’s psychological disposition.
It follows that ground 2 should be dismissed.
With respect to ground 1, it is useful to consider all of the offending in relation to CA first.
It was argued by the appellant that the sentences of 8 years each for count 9 and for count 12 were manifestly excessive as there were pleas of guilty and the particular offences were not accompanied by other acts of violence, threatened violence or degradation. The maximum sentence for rape is 25 years. In our opinion, the sentences imposed were not manifestly excessive taking into account that they were rolled-up counts of rape and that, being so, they stood to be sentenced in accordance with the approach adopted in R v Jones.[12] There, Charles JA (with whom Phillips JA and Bongiorno AJA agreed) said:[13]
[R]olled-up counts are a collection of counts bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled-up count were not included by agreement with the defence (demonstrated … by the plea of guilty) the count would be vitiated for duplicity. … The use of rolled-up counts operates considerably to the advantage of an accused who intends to plead guilty.
[12][2004] VSCA 68.
[13]Ibid [13] (footnotes omitted).
It is also important to keep in mind that the offences were committed upon a young girl of 14.
As mentioned above, the pleas of guilty were made only after compelling and cogent evidence was given by the complainant at a special hearing. Those pleas could thus be given less weight than in the case of the other pleas. As the sentencing judge correctly observed, this was a matter of some significance given that seven of the counts were ones in relation to which CA was the victim.
Moreover, the absence of other acts of violence or threats of violence must be considered in the circumstances of the case where CA was in a state of blurred consciousness and was powerless to resist. While it is important to recognise that here the administering of the drug for the purposes of sexual penetration was the subject of a separate count (count 6), and thus the criminal culpability of that conduct fell to be considered separately, it remains the case that the sexual penetration of a young girl who is powerless to resist is not to be considered of a lesser magnitude in the absence of other acts of violence. As Maxwell P and Neave JA stated in DPP v TDJ, in the context of a charge of incest:[14]
[T]he offence is no less serious by reason of the fact that the victim was unconscious. It is necessary, of course, to avoid double punishment, since the act of administering the drug for the purposes of sexual penetration is the subject of a separate count. … But the penetration of a young girl who is powerless to resist is, by itself, an act of high moral culpability.
[14][2009] VSCA 317, [18] (emphasis added).
With respect to count 12, it is also necessary to consider that the offence took place when the appellant had refused CA’s request to go back to the station and he had instead taken her to a toilet block and locked the door. In a sense, then, the rape took place in the context of an abduction, as was conceded at the hearing of the appeal.
Counts 7 and 8 were counts of indecent acts in relation to CA, count 7 being a rolled-up count. It was argued that the sentences imposed of four years’ and three years’ imprisonment respectively were manifestly excessive. Insofar as it was submitted that this was so taking into account the pleas of guilty, we have already observed that the pleas in relation to CA could not be given the same weight as the pleas to the other counts. Furthermore, the conduct of the appellant in relation to CA was described by the sentencing judge as ‘particularly gross’,[15] given her young age and the persistent abuse in which he engaged with her.
[15]R v Balassis [2009] VSC 127, [37].
With respect to counts 6 and 11 (administering a drug for the purposes of sexual penetration in relation to CA), it was argued that the sentence of 3 years’ imprisonment for each offence was manifestly excessive and resulted in double punishment given that the counts covered acts that were a direct precursor to further acts that attracted large sentences, and those acts were allegedly committed as a result of having administered the drug. The administering and consequent counts constituted part of the same course of conduct yet the magnitude of the sentences, it was argued, reveal that the sentencing judge considered the circumstances of one aggravated the penalty in respect of the other, and vice versa. Double punishment ensued.
We consider that there was here no double punishment, the sentencing judge taking care to ensure that the criminal culpability associated with administering a drug for the prohibited purpose was considered separately from that of the other offending, in a context in which the maximum sentence for the offence of administering a drug for the purposes of sexual penetration is 10 years.
The attempted rape of CA, which comprised count 10, attracted a sentence of 5 years’ imprisonment. It was conceded by the appellant that the particular conduct in question was indeed serious.
With respect to the rapes of CS, DJ and RB (counts 1, 2 and 14), the appellant argued that the sentence of 6 years for each count was manifestly excessive because the acts occurred after the complainants had voluntarily taken drugs, the appellant understood only that the complainants might not be consenting to the acts of penetration, and the prosecution had conceded that here the pleas of guilty were to be given their full weight.
The sentencing judge specifically rejected any suggestion that the voluntary use of drugs by a woman somehow renders it legitimate to sexually assault her or somehow lessens the probability that sexual assault will be traumatic for her.[16] In our opinion, his Honour was correct to do so.
[16]Ibid [48].
At the hearing of the appeal, counsel for the appellant expressly disavowed any suggestion that the behaviour of the complainants in relation to the circumstances in which they found themselves was a mitigating factor in relation to the rapes that took place. Rather, it was argued that the circumstances of the offending demonstrated that the sentences were manifestly excessive given the absence of aggravating factors and the need to give real weight to the pleas of guilty.
However, his Honour clearly considered that the offences in each of these counts were serious examples of predatory behaviour on pathetic and vulnerable victims. In the case of RB, she had awoken naked half on the couch and half on the floor with her legs spread, before the appellant, in trying to put a skirt on her, penetrated her vagina with his fingers (the basis of count 14). The sentencing judge was also mindful that because of the appellant’s convictions on counts 1 and 2, the principal purpose of sentencing for count 14 (and all the other remaining counts, save for count 15) was the protection of the community,[17] in accordance with the status of the appellant as a serious sex offender.
[17]Sentencing Act, s 6D.
In relation to count 15 (recklessly causing injury) the appellant was sentenced to imprisonment for one year, the maximum being five years. The injury caused to RB resulted from the appellant pulling a necklace off RB’s neck, causing cuts. The sentencing judge clearly considered that the circumstances in which the injuries occurred were important, namely, in the context of engaging in a piece of gratuitous violence upon a stupefied victim.
With respect to count 13, the indecent assault upon MS for which the appellant was sentenced to four years’ imprisonment, the appellant argued that, taking into account the full benefit of the plea, to which full weight had to be given, the sentence was manifestly excessive. He argued that, for the sentence to be justified, it would be necessary to consider that, without the plea, the sentence would have been above five years, say, six or higher, and that would only be given in circumstances at or near the worst possible offending for indecent assault. The circumstances here could not be so characterised.
The maximum sentence for indecent assault is 10 years. Count 13 was a rolled up count. One aspect of the offence involved the degrading circumstance that MS, on becoming conscious, discovered that the appellant had shaved her pubic hair. She further discovered a love bite on her neck. Although the plea of guilty was to be given its full weight, the appellant, as we have noted, fell to be sentenced as a serious sex offender.
Counts 3 and 4 comprised the administration of a drug to LT for the purposes of sexual penetration and the indecent assault of LT respectively, for which the appellant was sentenced to three years on each count (the maximum being ten years). For each count the appellant stood to be sentenced as a serious sex offender. Deterrence, both general and specific, and denunciation were important factors to be considered in the sentence to be imposed. The criminal culpability associated with each of the offences was clearly considered separately by the sentencing judge. Moreover, the factual basis of the offences was separated in time by the victim’s vomiting episode, after ingesting the drug when her vision became blurred and it was an effort for her to see in front of herself.
The last count to be considered is that relating to the victim PM, count 5 (administering a drug for the purposes of sexual penetration), for which the appellant was also sentenced to three years’ imprisonment. The appellant was charged with no other offending in relation to PM. In that context no attack was, or could be, made that the appellant had been doubly punished for acts that were a direct precursor to further acts of offending. The appellant was to be sentenced as a serious sex offender.
On the basis of all the considerations identified above, we do not consider that the exercise of the sentencing discretion by the sentencing judge miscarried. We consider that the sentences fixed with respect to each individual count were not manifestly excessive, in the circumstances outlined.
In our opinion, the total effective sentence of 20 years’ imprisonment with a non-parole period of 16 years was not manifestly excessive. This was arrived at on the basis of a direction for a portion (in many cases, a small portion) of most of the sentences to be served cumulatively. As the sentencing judge expressed it, by means of a sentiment with which we agree, this was done because the victims ‘cannot be treated as mere ciphers’.[18]
[18]R v Balassis [2009] VSC 127, [84].
Nor do we consider that the 20 per cent reduction in penalty attributable to the pleas of guilty was insufficient or ‘bespeaks’ error. As explained above, it was significant that full weight did not need to be given to the pleas with respect to seven of the counts, those concerning CA. Nor is a reduction of 20 per cent inconsistent with current sentencing practices.
We consider that the sentences imposed upon the appellant involved a sound exercise of discretion.
It follows that ground 1 of the appeal should also be dismissed.
Accordingly, we would dismiss the appeal.
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