Director of Public Prosecutions v Gallagher

[2015] VCC 761

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

IAN GALLAGHER (a pseudonym)

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 June 2015
CASE MAY BE CITED AS:	DPP v Gallagher
MEDIUM NEUTRAL CITATION:	[2015] VCC 761

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. P. D'Arcy	Office of Public Prosecutions
For Accused	Ms. J. Swiney

HER HONOUR:

1Ian Gallagher[1], you have been found guilty by way of jury verdict on three charges of rape, Charges 1, 2 and 5 and one charge of false imprisonment, Charge 3.  Those charges were included on Indictment B13048128.3B, file CR-14-00769.  You have pleaded guilty to a further charge of indecent act with a child under 16 which is Charge 1 on Indictment B13-048128.3D, file CR-15-00449. 

[1] Ian Gallagher is a pseudonym

2The maximum penalty for rape is 25 years imprisonment.  The maximum penalty for false imprisonment is 10 years imprisonment.  The maximum penalty for indecent act with a child under 16 is 10 years imprisonment.  

3The circumstances of your offending set out on Indictment B13048128.3B are as follows.  In December 2010, you met the complainant on an Internet dating site.  You met face to face about four weeks after this and began a sexual relationship.  You were married with two children when you met the complainant.  You were living with your wife but separated from her shortly after.  You were living in Bairnsdale and the complainant lived in the Melbourne area.  You and the complainant saw each other about every two or three weeks, sometimes in Bairnsdale and sometimes in Melbourne.  You also had very numerous conversations on the telephone and by text message. 

4On Sunday 22 May 2011, you were staying at a hotel in Dandenong.  You rang the complainant and asked her to come and see you.  The complainant arrived about 7.30 or 8.30 pm.  You appeared to have been crying and smelt of alcohol.  You had told the complainant your father had died.  You were talking to the complainant about your problems and asked her to come to bed with you.  She said she was comfortable where she was on the couch.  The complainant stood up to give you a hug.  You hugged her and then spun her onto the bed.  You were on top of her, you held her wrists to the bed.  You had your knees either side of her.  She told you to get off and was physically resisting you.  You said you wanted to make love to her.  She continued to refuse.  You continued to be forceful with her and eventually she stopped struggling and you had penis vagina sex with her (Charge 1 of rape).  You continued to pin her wrists to the bed, you ejaculated and got off.  The complainant said she was going and you became apologetic.  You said that were going to "get off the booze."  You continued to apologise for your behaviour in text messages in the following days. 

5The complainant later agreed to meet you again in Bairnsdale.  You booked a hotel room in Bairnsdale for the night of Friday 27 May 2011.  The complainant arrived at the hotel room about 5.30 pm.  She intended to end your relationship.  You had gifts for her and the complainant said she wanted to talk.  You said you would talk later and you both went to see some friends of yours. 

6On returning to the hotel, the complainant said she wanted some time and space.  You had a conversation about that.  You asked her to stay the night.  The complainant said she was not going to stay.  The complainant got up to leave.  You pushed her onto a chair, you took her keys and phone.  You asked again for sex.  The complainant refused.  You then pushed her and threw her onto the bed.  The complainant was crying and screaming.  You were calling her names.  You got on top of her.  You had removed her clothes.  She was still wearing underwear.  You pulled your jeans down.  You held her arms to the bed.  She was still kicking and struggling.  The physical struggle continued for some time.  The complainant was scared and eventually let you have sex with her.  You had penis vagina sex until you ejaculated (Charge 2 of rape).  During this incident, you also forcibly pushed your penis into her mouth (Charge 5 of rape). 

7Shortly after midnight, you went to the toilet and the complainant grabbed her belongings and left.  Your detaining of her in the hotel room is the subject matter of Charge 3 of false imprisonment.

8You were interviewed by police on 14 December 2011.  You agreed that you had been at the hotel on 22 May 2011 and said you did not have sex.  You denied any other physical or sexual assault in respect of the complainant. 

9The incident which gives to the charge of indecent act with a child under 16 which is Charge 1 on indictment B13048128.3D CR-15-00449 occurred in June 1997.  Your former wife was in hospital having giving birth to your son.  Your wife's younger sister was staying over at your house as she often did, because she was playing basketball nearby.  You had been drinking beer.  You called her into the main bedroom to watch television with you.  The complainant did so.  The complainant was 15.  She was lying on the bed watching television.  You leant over the complainant and put your hands down the side of her track suit pants.  You put your hand on her vagina under her clothing (Charge 1 indecent act with a child under 16).  The complainant asked what you were doing.  She left and went to her room. 

10You were interviewed about this matter on 14 December 2011 and denied the allegation.  The complainant felt unable to say anything to anyone about this incident until mid-2006 when she was in a relationship with her current husband. 

11The victim in each of these matters made a Victim Impact Statement. The complainant in respect of Indictment B13048128.3B requested that her Victim Impact Statement be read by the prosecutor.  In her Victim Impact Statement she describes the impact on her of your offending, particularly the offending on 27 May 2011.  She says that on her night her sense of safety, respect and self-confidence was taken away from her.  She also describes the impact that being required to give evidence at the committal hearing in July 2013 had on her.  She says that prior to the committal hearing, she struggled with intrusive bad thoughts, flashbacks, sleeplessness, insomnia, nightmares and difficulty concentrating.  She says that the feelings had escalated after the committal hearing.  She said she has experienced on-going panic attacks and anxiety.  She says this has hampered her in her career.  She says that since 2013 she has been having treatment in respect of post traumatic disorder.  She says that she still has ongoing difficulties and that what you did has had "a massive everlasting negative effect" on her life. 

12The complainant in respect of Indictment B13048128.3D describes her feelings in her Victim Impact Statement.  She says that this incident has always played on her mind and has affected her self-confidence and relationship with her husband. 

13I previously sentenced you on 11 September 2014 in respect of three charges of rape and two charges of intentionally causing injury.  Those charges were contained in Indictment B13048128.2A.  The victim of that offending was your former wife.  Those offences occurred between 7 January 2011 and March 2011.  You also pleaded guilty to a number of transferred and uplifted summary charges.  I sentenced you in respect of those matters also, on 11 September 2014.  Again, the victim in those charges was your former wife.  On that occasion you were sentenced in respect of one charge as a serious sexual offender, as you were sentenced on two other relevant charges to a term of imprisonment.  The consequence is, that in respect of the sentence today, you will be sentenced as a serious sexual offender in respect of Charges 1, 2 and 5 on Indictment B13048128.3B, and Charge 1 on Indictment 13048128.3D.  The prosecution does not seek disproportionate sentences for the purpose of community protection. 

14The total effective sentence you are presently serving is 78 months imprisonment with a non-parole period of 51 months.  At the time of sentencing you on 11 September 2014, you had served 628 days by way of pre-sentence detention.  

15In sentencing you previously, I took into account your personal circumstances.  Your counsel said in sentencing submissions in respect to the new matters, that the same material was relied upon including the psychological report of Ms Carla Lechner, dated 19 August 2014, Exhibit 1.

16Your counsel gave me an update on your personal circumstances.  He said that you had been serving your sentence at the Hopkins Correctional Centre in Ararat since October 2014.  You are serving your sentence in protection because of the nature of your offences.  You have not yet been "cleared" as suitable to do programs so you are on waiting lists but have not been able to do any programs and courses since being transferred to Ararat.  You have put your name down for programs.  You have been able to work on ongoing building works using your skills as a plasterer.  You are housed in a self-catering cottage. 

17You remain concerned about your father who is now 80 years old and lives in Shepparton.  Your father is able to visit about once a month.  His health issues have improved but you are anxious about his health situation and the possibility that he may be deceased prior to your release. 

18You still have a relationship with your fiancé, but that relationship is strained.  She visits you about once a month.  She herself has some significant health problems which is causing your ongoing anxiety.

19You are now divorced from your former wife.  You have not had contact with your children, although your son has suggested that you have contact in future. 

20Your physical health in custody has been reasonable, but you have ongoing issues for depression for which you have not received any treatment in custody.  You have chosen not to take medication as you consider that it would have a deleterious effect on you. 

21The non-parole period on your current sentence finishes in March 2017. 

22In sentencing submissions, your counsel relied on the delay which had occurred between you being charged in 2011 and the finalisation of these matters.  Your counsel submitted that you had had these matters hanging over your head for a lengthy period of time.  Your counsel made submissions in respect of totality in respect of the charges on Indictment B13048128.3B in respect of the sentence received today, and the previous sentence.  Your counsel submitted that the application of the totality principle would lead to some moderation of sentence by way of limited cumulation. 

23The prosecutor, in sentencing submissions, submitted that there had been a period of delay between December 2012 and July 2013 after you did not appear at a committal proceeding.  That delay could be attributed to you, otherwise the delay was not attributable to any action on your part.  Your counsel agreed with that. 

24Your counsel tendered a bundle of material as Exhibit 2 which demonstrated that you have made some progress whilst in custody, in discussing your issues, completing some programs and expressing a wish to engage in various rehabilitative programs.  Your counsel submitted that your depression would make your time in custody more burdensome, and sought some moderation of sentence to reflect that in application of principle 5 of the Verdin's principles.

25In respect of the charge on Indictment B13048128.3D to which you have pleaded guilty, your counsel submitted that your plea had been of significant utility and demonstrated your willingness to facilitate the course of justice.  Your counsel submitted that that was somewhat historical matter, which was one-off and opportunistic and not repeated.  The prosecutor agreed that your plea was a very useful plea of guilty and could be considered to have been made at the earliest opportunity given that discussions between prosecution and defence about this matter had not been undertaken until recently. 

26The prosecutor also submitted that the offence on Indictment B13048128.3D of indecent act with a child under 16 was a single Class 2 offence under the provisions of the Sex Offender's Registration Act [2004] and you will be required to report for 8 years upon your release. 

27In respect of the matters on Indictment B13048128.3B the prosecutor said that the offences were Class 3 offences which would give me the discretion to order compliance with the reporting provisions if I were satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons or of the community.  The offences will be treated, for the purposes of that Act, as two Class 3 offences and the reporting period would be life if reporting were ordered.  The prosecutor submitted that because there was another female who was subject to your criminality in respect of sexual offending, you should be required to report.  Your counsel made no submissions in respect of being required to report in respect of those offences.

28In sentencing you, I have taken into account your personal circumstances, as set out in my reasons for sentence on 11 September 2014 together with the update provided by your counsel.  Amongst the matters I have taken into account are the contents of Ms Lechner's report and her opinion that you presented to her with symptoms of alcohol use disorder in remission, and major depression.  I accept her opinion that you have a history of a longstanding battle with depression with the use of alcohol as self-medication.  I accept that in respect of the offending to which I am sentencing you today, alcohol played a considerable part.  I consider that the context of a history of depression, together with alcohol abuse, was the context in which you offended against the complainant in Indictment B13048128.3B.  I reiterate that your prospects of rehabilitation are linked to your potential ability to deal with those problems.  It appears that you are prepared to do so when you get the opportunity.

29Ian Gallagher, the offences for which I am sentencing you today are further examples of serious offending including serious sexual offending by you.  The offending against your former wife's younger sister occurred some time ago.  You touched that young girl in a very intrusive and offensive way.  You were looking after her whilst your wife was in hospital.  The complainant was entitled to trust you as the partner of her older sister.  Your conduct involved a very serious breach of that trust.  She has not forgotten what you did, and what you did has continued to have a negative effect on her. 

30The offences against the complainant in Indictment B13048128.3B were of serious sexual offending and constituted offending which was similar in many ways to the offending against your former wife, for which I sentenced you in September last year.  You physically forced yourself on the complainant despite her resistance.  You over-bore her will with physical force in order to act on your sexual desires.  On two occasions of rape you had unprotected sex with her and ejaculated.  You treated the complainant in a degrading and bullying way.  On one occasion you would not allow the complainant to leave when she wanted to. 

31Your prior criminal record in respect of the offending in Indictment B13048128.3B includes a suspended sentence of imprisonment imposed on you at the Bairnsdale Magistrates' Court on 18 August 2010.  On that date you were convicted of intentionally causing injury, indecent assault and assaulting and injuriously imprisoning a person.  The victim of those offences was your former wife.  On that occasion you were sentenced to a term of 9 months imprisonment wholly suspended for 12 months and also placed on a Community Based Order for a period of 18 months.  As I said when sentencing you in September last year, those sentences ought to have been a warning to you about your difficulties with alcohol, violence and sexual offending. 

32Again, your offending must be strongly denounced and appropriately punished.  The punishment must be sufficient to deter you and others from treating anyone else in this way.  A sentence of imprisonment is clearly warranted for the purposes of just punishment, denunciation, general deterrence and specific deterrence.  I consider that specific deterrence must be given weight in the sentence to be imposed.  I see no reason to alter my opinion of September last year, that your present prospects for rehabilitation are reasonable at best.  Clearly, it is of vital importance that you are able to get support to deal with your issues of depression and alcohol abuse. 

33As I said previously, I am satisfied beyond reasonable doubt on the basis of the offending on which you have been found guilty and to which you have pleaded guilty, that there would be real risk to the sexual safety of any person with whom you had an intimate personal relationship.  I remain of the view that in respect of the offending covered by Indictment B13048128.3B you ought not be required to comply with the obligations of the Sex Offender's Registration Act 2004.  In respect of the offence of Indictment B13048128.3D you are required to report for a period of 8 years. 

34I have taken into account in mitigation of sentence, that there is considerable delay in this matter, apart from the delay caused by you. 

35In respect of the offence on Indictment B13048128.3D, I have taken into account in mitigation of sentence that you pleaded guilty at the earliest opportunity which will save the trauma and expense of a trial.  I have also taken into account that the offences on Charges 2, 3 and 5 on Indictment B13048128.3B occurred in the same incident. 

36I have also taken into account in mitigation of sentence, your anxiety about your father and fiancé, that you are serving your sentence in protection, and that imprisonment is more difficult for you because of your ongoing depression. 

37You will be sentenced on Charges 1, 2 and 5 on Indictment B13048128.3B and Charge 1 on indictment B13048128.3D as a serious sexual offender. I have taken into account s.6D and 6E of the Sentencing Act 1991. I do not consider that a disproportionate sentence is required for the purpose of community protection which must be the principle purpose of the sentence for that offence. I have taken into account s.6E in determining the degree of concurrency or cumulation between the sentences today and between today's sentence and the sentence previously imposed, bearing in mind the need to apply the principles of totality to the sentence as a whole as well as your plea to the Charge on Indictment B13048128.3D. I have also taken into consideration, the principle of totality in determining as well as s.6E in determining the degree of concurrency and cumulation between the sentence imposed today and the sentence previously imposed.

38Please stand Mr Gallagher.

39In respect of Indictment B13048128.3B, File CR-14-00769 I make the following orders: 

40Charge 1 of rape, you are convicted and sentenced to 46 months imprisonment.

41Charge 2 of rape, you are convicted and sentenced to 48 months imprisonment.

42Charge 3 of false imprisonment, you are convicted and sentenced to 12 months imprisonment. 

43Charge 5 of rape you are convicted and sentenced to 44 months imprisonment. 

44The sentence on Charge 2 is the base sentence.  I have selected that sentence as the base sentence because of the level of violence involved and the impact on the complainant, of this incident. 

45Thirty one months of the sentence on Charge 1, and 32 months of the sentence on Charge 5, are to be served concurrently with the sentence on Charge 2. 

46Fifteen months of the sentence on Charge 1, six months of the sentence on Charge 3, and 12 months of the sentence on Charge 5 are to be served cumulatively upon each other and on the sentence on Charge 2.  The total effective sentence on Indictment B13048128.3B, File CR-14-00769 is 81 months imprisonment. 

47In respect of Indictment B13048128.3D, File CR-15-00449, I make the following orders:

48On Charge 1 of indecent act with a child under 16 years you are convicted and sentenced to 12 months imprisonment.  But for your plea of guilty, I would have sentenced you to 18 months imprisonment. 

49Nine months of the sentence on Indictment B13048128.3D, File CR-15-00449 is to be served concurrently on the other sentences imposed today; three months of the sentence on Indictment B13048128.3D, File CR-15-00449 is to be served cumulatively on the sentence on Indictment B13048128.3B, File CR-14-00769. 

50The total effective sentence on Indictment B13048128.3B, File CR-14-00769 and Indictment B13048128.3D, File CR-15-00449 is 84 months imprisonment.   But for your plea of guilty on Indictment B13048128.3D, File CR-15-00449, I would have sentenced you to a total effective sentence on both indictments of 87 months. 

51Forty two months of this sentence on both indictments which is imposed today, is to be served concurrently on the sentence imposed on 11 September 2014; forty two months of this sentence is to be served cumulatively on the sentence imposed on 11 September 2014. 

52I am required to set a new non-parole period for the sentence imposed today, and the sentence imposed on 11 September 2014.  The new non-parole period in respect of the sentence imposed today and the sentence imposed on 11 September 2014, is 84 months imprisonment. 

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