Director of Public Prosecutions v Gallagher (a pseudonym)
[2014] VCC 2318
•11 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IAN GALLAGHER (a Pseudonym) |
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JUDGE: | Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 September 2014 | |
CASE MAY BE CITED AS: | DPP v Gallagher (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2318 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Fitzgerald | |
| For the Accused | Ms J. Swiney |
NOTE: A PSEUDONYM HAS BEEN USED TO ANOYMISE THE ACCUSED
HER HONOUR:
1 Ian Gallagher,[1] you have been found guilty by way of jury verdict on two charges of rape, Charges 2 and 12, and two charges of intentionally causing injury, Charges 3 and 13. You pleaded guilty to one charge of rape, Charge 15. Those charges were contained in Indictment B-13-048128.2A on file CR-13-01318. The victim of your offending was your then wife.
[1] Ian Gallagher is a pseudonym.
2 You have also pleaded guilty to transferred and uplifted summary charges. The guilty verdict on Charge 2 of rape means that you breached a suspended sentence of imprisonment imposed at Bairnsdale Magistrates' Court on 18 August 2010. On that date you were convicted of intentionally causing injury, indecent assault and assault and injuriously imprisoning a person. The victim of those offences was your former wife, Ms Gallagher[2].
[2] Ms Gallagher is a pseudonym.
3 In respect of the charge of intentionally causing injury you were sentenced to a term of nine months' imprisonment, wholly suspended for a period of 12 months. That is the suspended sentence which has been breached by the offending in Charge 2. Transferred summary charge 20, file CR-14-01560 relates to the breach constituted by the offence in Charge 2.
4 At the same hearing on 18 August 2010 on the charges of indecent assault and assault and injuriously imprison, you were convicted and placed on a community based order for a period of 18 months. The offending covered by the charges on which you were found guilty by the jury also constitutes a failure to comply with that community based order. Transferred summary Charge 1, file CR-14-01558, is a charge of failing to comply with a community based order.
5 A family violence intervention order was made in respect of you in 2011. The protected person was Ms Gallagher. You contravened that order by sending a text message to her on 12 August 2011. That is the subject matter of Summary Charge 1, file CR-13-01318. Between 4 September and 12 September 2011 you again contravened the family violence intervention order by sending text messages to Ms Gallagher. That is the subject matter of Summary Charge 22, file CR-13-01318. Between 23 September and 26 September 2011 you again breached the order by sending text messages to Ms Gallagher while pretending to be another person. That is the subject matter of Summary Charge 23, file CR‑13-01318. On 10 December 2012 you failed to appear at the committal hearing in accordance with your bail. That failure to appear is the subject of uplifted Summary Charge 54, file CR-13-01318.
6 The offending in Charge 2 of rape and Charge 3 of intentionally causing injury on the Indictment occurred on the evening of 7 January 2011. You were living apart from Ms Gallagher and had told her you had a new girlfriend. You had also said you wanted to resume your relationship with Ms Gallagher. On that night you had come to Ms Gallagher's home to visit the children. You had been drinking. You were invited to stay for dinner and continued drinking. You told Ms Gallagher to get ready for a threesome. During the trial it was not disputed that you had an interest in having sexual activity in the context of a threesome with another man. Ms Gallagher objected. You told her to go to the bedroom and take off her clothes. Ms Gallagher did as you said and was crying. You came into the bedroom, undressed and told her to give you oral sex. She refused and you grabbed her hair, forced her head to your penis and forced your penis into her mouth.
7 About two hours later you came into the room and told Ms Gallagher to give you oral sex. She was angry and lashed out causing your nose to bleed. You yelled and swore at her and punched her to the face. You hit Ms Gallagher to the body multiple times and she curled up to avoid your blows. You said, "I'll hit you where I fucking want." You caused her to have a large black eye the next day and difficulty seeing out of that eye.
8 The next morning you made Ms Gallagher talk about what had happened with the unknown male who had come to the house for a threesome by arrangement with you. You again forced your penis into Ms Gallagher's mouth. That is the subject matter of Charge 12 of rape.
9 It was uncontested evidence at the trial that you stayed over with Ms Gallagher from time to time. On one such occasion in March 2011 you were in bed with Ms Gallagher and you went to sleep. Ms Gallagher looked at a text message which had come onto your phone and which she believed was from your new girlfriend. Ms Gallagher sent back a message pretending to be you and saying that you were with her and having oral sex. You were angry when you found what she had done. Ms Gallagher was in the lounge room. I am satisfied beyond reasonable doubt on the evidence of Ms Gallagher and your daughter that your daughter was also in the lounge room. You were yelling at Ms Gallagher. She denied touching your phone and you started punching her to the head causing her pain and a lump on her head. That is the subject matter of Charge 13 of intentionally causing injury.
10 The offending in Charge 15 of rape to which you pleaded guilty occurred in January 2011. The only evidence about this incident came from your admissions in the record of interview with the police. You said that you had been arguing with Ms Gallagher and then went to bed. You asked for oral sex and she refused. You then forced her head down and forced her to have oral sex with you. You said you had used a lot of force and knew that it was something Ms Gallagher did not want to do.
11 Victim impact statements were tendered from Ms Gallagher and from your two children. The victim impact statements from your children were read out in court. Ms Gallagher, in her victim impact statement, speaks of the impact on her of your offending and the fear that she felt. She speaks of the lack of trust she now has in other people and her feeling that she will never be able to trust another man. Putting aside references to matters which were not related to these charges, it is clear that your offending has caused considerable distress and disruption to your children and ex-partner.
12 In sentencing you I have taken into account your personal circumstances which were set out by your counsel and in the report of Ms Carla Lechner, psychologist, dated 19 August 2014, Exhibit 1.
13 You are now 41 years old. You grew up in country Victoria. Your father had problems with alcohol and violence. Your parents separated when you were about 11 to 12 years old and you had no contact with your father for about 10 years. You resumed contact with your father when your mother was dying when you were about 22. Your relationship with your father ultimately improved with your father no longer being violent or abusing alcohol.
14 You left school after year 10 and completed an apprenticeship in plastering. You have worked consistently in your own business and for others as a plasterer since that time. You met your wife in 1995. You had financial and relationship problems and ultimately separated from Ms Gallagher. About two years ago you met your current partner. She remains supportive of you, although you have been in custody on remand for a considerable period of time.
15 Apart from the matters for which you were sentenced on 18 August 2010, you have only one prior court appearance in 2000 for being drunk in a public place. The 2000 matter is not relevant for the purposes of sentencing you today.
16 Ms Lechner assesses you as presenting with symptoms of alcohol use disorder in remission and major depression. It is Ms Lechner's opinion that you have a history of a long-standing battle with depression with the use of alcohol as self-medication. She says you do not present with overt symptoms of a psychosexual disorder, although you would benefit from reassessment by the sexual offenders program. She also suggests that you would benefit from medical review to determine the possible benefit of antidepressant medication and could benefit from counselling support and alcohol rehabilitation. Ms Lechner says:
"At interview Mr Gallagher impressed as capable of reflecting on the impact his behaviour has on both himself and others, although his past drinking and depressed mood state are likely to have had an adverse impact on his judgment and decision-making."
17 I accept that your offending occurred in the context of a history of depression and alcohol abuse. I note that your counsel, appropriately in my view, did not reply on the application of Verdins principles. It is clear that your prospects of rehabilitation are linked to your potential ability to deal with those problems. It appears from the material provided that prior to being placed in custody you at least made appointments in order to deal with your issues. Your counsel submitted that it is encouraging that you have attended all programs in custody that you could and have also built three cubbyhouses which are being auctioned for charity.
18 You are now in protection because of the nature of your offending which makes access to programs more difficult. Your counsel said that your alcohol use is under control in custody but that you would need support on your release in respect of matters of depression and alcohol abuse. Your counsel submitted that you were not without prospects and had some insight suggesting that you could on your release give positive value to the community.
19 Your counsel also submitted that it should be taken into account in sentencing you that there had been a delay in this matter between March and August relating to the need for a retrial.
20 Your counsel submitted that you ought not be made subject to the Sex Offenders Registration Act 2004, as the purposes of registration and the requirements of that act do not reflect this type of offending which occurred against an intimate partner within the family home. Your counsel submitted I could not be satisfied beyond reasonable doubt that there would be a real risk to the sexual safety of any person as required by the legislation.
21 Your counsel, in respect of the summary offences, did not seek to suggest there were any exceptional circumstances which applied in respect of the breach of suspended sentence but submitted that totality should be taken into account in deciding the degree of cumulation, if any, that should be imposed in respect of the suspended sentence and any sentence imposed for the current offending.
22 In respect of the community based order your counsel submitted that you had complied to a degree and that if the suspended sentence were being reimposed that no action should be taken in respect of the community based order. Your counsel submitted that there ought be some concurrency in sentencing given the summary offences included similar offending to the trial matters. She also submitted that I take into account totality and proportionality in arriving at the ultimate sentence.
23 The prosecutor submitted I should take into account the seriousness of your offending and its impact on Ms Gallagher and the children. The prosecutor accepted that the use of alcohol seemed to have been part and parcel of the offending but was not the only issue involved. The prosecutor submitted that whilst appropriate consideration needed to be given to your plea of guilty and admissions in relation to the rape which the subject matter of charge 15, in respect of other matters you had not demonstrated any remorse.
24 Your counsel also referred to the indecent assault for which you received the community based order and submitted that there were some matters which were similar in kind to the trial matters. The prosecutor submitted in respect of the reimposition of the suspended sentence that other than totality there was no reason that this should not be a cumulative sentence. He further submitted that the degree of cumulation in respect to the suspended sentence ought to be taken into account in considering whether or not any action ought to be taken in respect of the breach of the community based order.
25 Ian Gallagher, you have engaged in serious offending. You subjected your wife to sexual and physical assaults. You showed absolute disrespect for her and her wishes. You physically forced her to have oral sex with you and used physical violence against her when she stood up to you. You offended against Ms Gallagher in her own home in a degrading and bullying way. You were not deterred by the presence of your children in the home. It was put on your behalf at the trial and accepted by Ms Gallagher that there had been attempts at reconciliation between you but a big issue was your drinking. You offended again against Ms Gallagher despite the severe warning giving to in the sentences imposed on 18 August 2010. You continued to offend, despite knowing that you had a tendency towards imposing your will on Ms Gallagher and being violent when intoxicated. Your offending has had a very serious effect on Ms Gallagher and on your children.
26 Despite a family violence intervention order you continued to text messages to Ms Gallagher. You failed to respect her wishes. You also failed to respect an order made by a court with the purpose of protecting Ms Gallagher from such contact.
27 Your offending must be strongly denounced and appropriately punished. The message must be brought home to you and others that you must not treat your partner or anyone else in this way. A sentence of imprisonment is clearly warranted for the purposes of just punishment, denunciation and general deterrence. I consider that specific deterrence ought to be given weight in the sentence to be imposed.
28 I have taken into account in sentencing you the matters raised by your counsel. As I have said, I accept that your offending occurred in the context of your depression and alcohol abuse. I note that you complied with the treatment conditions of your community based order. The report provided by Corrections says that you appeared to be making positive progress with psychological counselling and accordingly it was not recommended that you attend specific drug and alcohol programs. The report says that you did not advise Corrections of issues occurring within your personal life. It appears that you complied with the treatment conditions imposed but did not fully engage in the opportunity to obtain assistance with your issues.
29 You have a history of hard work and support from your current partner. You have demonstrated some contrition in the admissions you made to the police. It is apparent from the reference from the prison chaplain that you have engaged positively with him in working through the Positive Lifestyles Program. I accept that you now have more insight and a greater desire to deal with those issues which is encouraging.
30 Despite those positive matters, in view of your offending history, I am of the opinion that you will struggle to deal with your issues on your release. I consider that you are likely to reoffend unless you take serious steps to deal with your depression and control your drinking. You would clearly benefit from professional support on your release. I assess your present prospects for rehabilitation as reasonable at best.
31 In respect of the breach of suspended sentence, there are no exceptional circumstances which would make it unjust to restore the sentence of imprisonment and the sentence will be reimposed. Pursuant to s.83AR of the Sentencing Act (1991) that sentence must be served immediately and cumulatively on any other sentence "previously imposed" unless otherwise ordered. In view of the reimposition of the suspended sentence and your compliance, I do not propose to take action in respect of the breach of community based order other than to find the breach proven and confirm the order.
32 I have taken into account that there was an additional delay in this matter between March and August relating to the need for a retrial. I accept that that was an additional relatively short period of anxiety for you.
33 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 a real risk to the sexual safety of any person with whom you had an intimate personal relationship. I do not propose to require you to be made subject to the Sex Offenders Registration Act 2005. I accept the argument that the purposes of registration and the requirements of that act do not reflect the type of offending in which you have engaged. Registration would not, in my view, assist in the prevention or detection of any future crime of the type you are likely to commit.
34 I have taken into account in mitigation your admissions to the police about the offending which is the subject matter of Charge 15. Those admissions were the only evidence of this offence and demonstrate some contrition on your part. The same can be said for the other pleas of guilty entered which have saved the time and expense of contested hearings.
35 You have shown no remorse in relation to the offending on which you were found guilty by way of jury verdict, other than some remorse for the effect on your children of your offending generally and the impact on your elderly father.
36 You will be sentenced on Charges 2 and 12 to a term of imprisonment. That means you will be sentenced in respect of Charge 15 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 principal purpose of the sentence for that offence. I have taken into account s.6E in determining the degree of cumulation to impose, bearing in mind the need to apply the principle of totality to the sentence as a whole, as well as your plea to this charge.
37 In determining the individual sentences and degree of cumulation I have taken into account the principles of totality and proportionality.
38 Could you stand please, Mr Gallagher. In respect of file CR-13-01318 I make the following orders: on Charge 2 of rape you are convicted and sentenced to 48 months' imprisonment. On Charge 3 of intentionally causing injury you are convicted and sentenced to 12 months' imprisonment. On Charge 12 of rape you are convicted and sentenced to 42 months' imprisonment. On Charge 13 of intentionally causing injury you are convicted and sentenced to nine months' imprisonment. On Charge 15 of rape you are convicted and sentenced to 30 months' imprisonment.
39 In respect to Charge 15 you are being sentenced as a serious sexual offender and declaration will be recorded in the records of the court.
40 On Summary Charge 1 of contravening a family violence intervention order you are convicted to seven days' imprisonment. On Summary Charge 22 of contravening a family violence intervention order you are convicted and sentenced to seven days' imprisonment. On Summary Charge 23 of contravening a family violence intervention order, you are convicted and sentenced to seven days' imprisonment. On Summary Charge 54 of failing to appear in answer to bail you are convicted and sentenced to one months' imprisonment.
41 The sentence on Charge 2 is the base sentence. Three months of the sentence on Charge 3, 12 months of the sentence on Charge 12, two months of the sentence on Charge 13 and seven months of the sentence on Charge 15 are to be served cumulatively on each other and on the sentence on Charge 2. The remaining sentences are to be served concurrently with the sentences on Charge 2. The total effective sentence on the charges on file CR-13-01318 is 72 months' imprisonment. Six months of the sentence on file CR-14-01560 is to be served cumulatively on this sentence. The combined total effective sentence on the charges on file CR-13-01318 and file CR‑14‑01560 is 78 months' imprisonment.
42 In respect of this sentence on file CR-13-01318 and the sentence on file CR‑14-01560 I fix 51 months as the period you are required to serve before being eligible for release on parole.
43 In respect of this sentence and the sentence on file CR-14-01560 I declare that you have served 628 days by way of pre-sentence detention to be deducted administratively.
44 But for your pleas of guilty in respect of Charge 15 and Summary Charges 1, 22, 23 and 54 I would have sentenced you on the charges on file CR-13-01318 to a term of imprisonment of 82 months with a nonparole period of 64 months.
45 In respect of file CR-14-01560 I make the following orders: on Summary Charge 20 of breaching a suspended sentence imposed on 18 August 2010 the breach is found proven and the sentence of imprisonment of nine months is restored. Six months of this sentence is to be served cumulatively on the sentence imposed on file CR-13-01318. The combined total effective sentence on the charges on file CR-13-01318 and file CR-14-01560 is 78 months' imprisonment.
46 In respect of this sentence on file CR-14-01560 and the sentence on file CR‑13-01318 I fix 51 months as the period you are required to serve before being eligible for release on parole.
47 In respect of this sentence and the sentence on file CR-13-01318 I declare that you have served 628 days by way of pre-sentence detention to be deducted administratively.
48 In respect of file CR-14-01558 I make the following orders: on Summary Charge 1 of failing to comply with a community based order imposed on 18 August 2010 I find the breach proven and confirm the community based order.
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