Balassis v The Queen - [2010] VSCA 296

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Balassis v The Queen

Details

AGLC: Balassis v The Queen [2010] VSCA 296
Case: [2010] VSCA 296
Decision Date: 11 November 2010

CaseChat Overview and Summary

Balassis appealed against his conviction and sentence, which involved multiple serious sexual offences. The Court of Appeal was tasked with reviewing the appropriateness of the sentence and the procedures followed in the trial court. The central issue was whether the sentence of 20 years' imprisonment with a non-parole period of 16 years was manifestly excessive. Additionally, the court considered whether the sentencing judge had properly assessed the appellant's prospects for rehabilitation and if the principles of sentencing were correctly applied.

The Court of Appeal found that the sentence imposed was within the range of appropriate sentences for the crimes committed. It held that the sentencing judge appropriately considered the need to protect the community and the appellant's limited prospects of rehabilitation. The court also addressed the appellant's contention that the sentencing judge made a finding about his dysfunctional personality without affording him natural justice. The court found that the evidence supported the sentencing judge's finding and that the appellant was not prejudiced by this assessment. The appeal was dismissed on both grounds.

The Court of Appeal confirmed the sentence, rejecting the argument that it was manifestly excessive. The court held that the sentencing judge had correctly applied the principles of sentencing, taking into account the gravity of the crimes and the need to protect the community. The appeal was dismissed, and the original sentence was upheld.

No further orders were made.

Orders