R v Balassis
[2009] VSC 127
•1 April 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1655 of 2008
| THE QUEEN |
| v |
| GEORGE BALASSIS |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2008 | |
DATE OF SENTENCE: | 1 April 2009 | |
CASE MAY BE CITED AS: | R v Balassis | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 127 | |
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CRIMINAL LAW – Sentencing – 5 counts of rape – 1 count attempted rape – 4 counts administering a drug for the purposes of sexual penetration – 2 counts indecent assault – 2 counts indecent act – 1 count reckless injury – 7 victims – Predatory conduct persisting over three years – Use of drugs to facilitate sexual offences – Serious sexual offender – Impact on victims not lessened by prior histories of drug use or criminal conduct – Personal characteristics of offender including intelligence – Substance dependence – Grossly inadequate and dysfunctional personality – Pleas of guilty – Expressions of remorse – Limited prospects of rehabilitation – Primacy of protection of the community – Need for appropriate cumulation – Total effective sentence 20 years’ imprisonment – Minimum non‑parole period 16 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs M Williams SC | Office of Public Prosecution |
| For the Accused | Mr D Ross QC with Ms A Ellis | Rob Melasecca |
HIS HONOUR:
George Balassis you have pleaded guilty to five counts of rape, one count of attempted rape, four counts of administering a drug for the purpose of sexual penetration, two counts of indecent assault, two counts of indecent act and one count of recklessly causing injury. The offending spans a period of three years from July 2004 to July 2007.
You were born on 23 November 1963 and at the time your offences were committed were over 40 years in age.
The offences with which you are charged involve seven victims who, apart from one, were not previously known to you before the conduct involved in the offences.
At the time of the offending you were and had been for a number of years involved in poly‑substance abuse. In common with many other drug users you often sought out others with similar inclinations. Your social interaction with them generally included an exchange of drugs and the drinking of alcohol. In turn these meetings were sometimes accompanied by sexual activity. Each of the offences before me occurred after you had taken drugs and often after you had taken drugs in combination with alcohol. It is an agreed fact that this combination adversely affected your capacity for judgment.
Some complainants also had alcohol and/or drug problems and likewise suffered impaired judgment as the result of the ingestion of such substances at or prior to the time of your offending.
In four cases you administered drugs specifically with the intention of rendering your victims incapable of resisting and thereby to enable yourself to take part in acts of sexual penetration, the victims being LT (count 3), PM (count 4) and CA (counts 6 and 11).
In other instances sexual activity occurred when your victims were so affected by the consumption of drugs as to be unable to consent.
The gravest offending involved CA (counts six to twelve on the presentment). At the time of these offences CA was only 14 years of age. Her young age together with the protracted sequence of your offending render it particularly serious.
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 you approached her and showed her a plastic bag containing white crystals. You told her that it was $200 worth of crystal or crystal meth which CA took to mean amphetamines. CA told Ms JH that she would call her back. She left the station with you and she introduced herself as ‘China’. You told her that amphetamines with alcohol were awesome and that she should try it. You and CA went to a bottle shop. You bought a bottle of Vodka and you and CA shared the cost. You and CA continued walking to your home with CA falling over a number of times because she was drunk. As she accompanied you she kept saying she wanted to go back to the station. You said you would take her back but you needed to get a laptop from your place.
When you reached your home you took the bottle of Vodka and mixed some of the crystals with the Vodka and drew the mixture into a syringe. You injected the mixture into your arm and told her that she could drink it instead of injecting it. CA was sitting on your bed at this time. You then mixed some of the crystals with Vodka and gave it to her. She drank it at your suggestion. These actions form the basis of count 6, a charge of administering a drug for the purposes of sexual penetration.
You then repeatedly told CA to lie down to which she replied no. You pushed her shoulders down so that her back was on the bed but her legs were to the side. You 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.
You then put your hands down CA's jeans which forms a further element of rolled up Count 7, a rolled up count of indecent act. CA felt very drunk and tired at the time and did not like what you were doing. CA told you that she wanted to leave and go back to the station. Eventually when she got upset you agreed.
You then took her into a dark area of an apartment complex so that you could give her some more ice to wake her up. You asked her to pull down her pants. She did. She sat on a ledge and you poured some crystals on to her clitoris with a syringe. That is the factual basis of Count 8, an indecent act. You then started to lick CA's clitoris with your tongue and penetrated her vagina. You then put more of the drug on her clitoris and you then started to lick CA's clitoris with your 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.
You then said that somebody was coming so you and CA left and you took her to a grassy area, a park near the Yarra River. You pulled down your pants exposing a flaccid penis and told CA to suck it. She told you ‘no’ and started to cry. You grabbed the back of her head and tried to force her head to your genitals. As you used force to do this CA was pushing away and pushing her body back with her hands on the grass. At one stage your 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 your genitals, so it is a count of attempted oral penetration.
You and CA got up, CA asked you to go back to the station but you took her to a toilet block and locked the door. You mixed more of the crystals with water and drew the mixture into a syringe. You told CA to open her mouth and you 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 you reloaded the syringe with more of the mixture. You told CA to pull down her pants which she did. You then put more of the mixture on her clitoris and rubbed it in with your finger. You licked CA's clitoris and penetrated her vagina with your tongue. These acts comprise part of the basis of Count 12, which comprises a rolled up count of rape.
You then penetrated CA's vagina with your fingers and this act comprises a further basis for the rape count. So that Count 12 includes the penetration of the vagina with your tongue and the penetration of the vagina with your fingers as part of a rolled up count.
During the time CA was with you, you exchanged mobile telephone numbers. You had consumed drugs and alcohol but nevertheless were aware on the occasion of each of the rapes and the attempted rape comprised in Counts 9, 10 and 12 that CA was not consenting.
I turn then to the other two instances in which you administered drugs specifically with the intention of rendering your victim incapable of resisting and enabling yourself to take part in an act of sexual penetration. I will deal first with LT (counts 3 and 4 on the presentment, that is administering a drug for sexual penetration and indecent assault). At the time of your offending she was 37 years old.
On 25 March 2006 LT was walking across Flinders Street near Young and Jackson Hotel. In the course of crossing the street she met you and the two of you exchanged pleasantries. You and LT then walked along Swanston Street talking. You and LT agreed to get a can of Coke each and a flask of bourbon. You poured some bourbon into LT' can of Coke. You 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.
You and LT then drank some of the drinks and smoked some cannabis. You and LT then took the tram towards your house. On the way LT started to feel strange. She dropped her can and when she picked it up nearly lost her balance. You put your arm around her and asked if she were okay. When you and LT were at your house LT asked for water and you brought her an orange juice container filled with water. It smelt funny and she refused to drink it. She also told you that she knew that you had put something in her drink, that she had taken drugs before and she says she said this in order to bluff you.
You 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 you and on the floor. You then asked what you could do for her and LT asked you to open the windows as she was having difficulty breathing and you did. You offered to wash her pants because of the vomit and LT said she would just sponge it off herself but you insisted on washing her pants. You offered her some female clothing that had been abandoned. She put on one of your outfits over her clothes.
You then started to massage LT's back as she had previously told you that she had had some discs fused. You reached around and pulled off her jeans and LT felt your flaccid penis rubbing her near her buttocks and then close to her vagina. LT did not consent to any sexual activity with you and you were 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 you that she needed to sit on earth and you got her possessions for her and you and LT went outside and sat on the grass. Just before you parted you gave her the correct directions to Racecourse Road. LT then left.
I turn then to the complainant, PM. This relates to count 5 on the presentment. Administer a drug for the purposes of sexual penetration. At the date of your offending she was 41 years old.
On 11 March 2007 PM went to 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. You were passing by. She spoke to you. You asked her if she was okay. At her request she used your mobile phone to try to ring her boyfriend. You and PM then went to the Crown Casino for drinks, then by taxi to PM's home about 2.30 a.m. You paid for the taxi.
When you and PM arrived at her home PM poured herself a glass of wine. You took a red tablet and told her to take it as it would make her feel better. You told her it was like a strong Panadeine Forte. PM took the tablet and used some water to wash it down. You administered the drug to her to render her incapable of resistance, thereby enabling you 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 you were totally naked lying on the floor. You said your nakedness was because you had showered at her suggestion.
I move then to CS – Count 1 (rape). At the time of your offending CS was aged 29. CS met you on 20 July 2004 at an amphetamine dealer's house in Oakleigh. Both of you had gone there to score. At that time CS regularly used amphetamines and was on prescription Valium for anxiety attacks. CS formed the view that she and you had mutual friends and acquaintances. You and Ms CS went back to CS's place. You were to massage her. When you arrived at CS’s home you both used amphetamines and CS also took some Valium. The massage then took place. CS took off most of her clothes. You then started to try and spread her legs. CS kept closing them, then gave in. The Valium and amphetamines that she had consumed had affected her ability to consent. You raised CS's hips and penetrated her vagina with your penis without her consent. At the time you had consumed drugs and were affected by them, but you were aware that CS might not have been consenting. These actions constituted Count 1 on the presentment, a count of rape.
I turn then to the complainant, DJ - Count 2 (rape). At the time of your offending DJ was aged 26. On 10 August 2004 DJ went to the corner of Exhibition and Bourke streets with the intent of buying some heroin. At that time she was in a drug rehabilitation unit. You approached DJ asking her for a light for your cigarette. You then asked if she could get some heroin for you as well. DJ tried to get you some of the drug but could not get it as cheaply as you 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 you were still there. You offered her $40. She says it was to practice your massage. You say it was because she was a working girl and would also supply drugs. (I am unable to resolve this conflict either in favour of the prosecution beyond reasonable doubt or in your favour on the balance of probabilities).
You and DJ took the train to Caulfield and walked to where you were then living in Dandenong Road. You gave DJ $30 and said that you couldn't 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. You massaged her for a period of time. You then penetrated her vagina with your 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 you were aware that DJ might not be consenting. These circumstances form the factual basis for Count 2, rape. After you penetrated her, DJ turned away from a kiss, but you eventually did kiss her. She asked you not to ejaculate inside her and you ejaculated on her abdomen. DJ asked you for something to clean it. You gave her a towel and before you and DJ parted you gave her $8 in change and your mobile phone number.
I turn then to MS – Count 13 (indecent assault). MS was aged 34 at the time of your 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 Zanax tablets and started to lose consciousness. Some time after 3 a.m. a van pulled up near MS. You were driving. You had a woman passenger. You and your passenger had been looking for drugs. The woman passenger left. MS got into your car. You say that she rubbed her hand on your leg.
You and MS drove back to your house and you say that you and MS took heroin and alcohol. MS does not remember. She says that she passed out and awoke at 8:00 pm but fell asleep again and her memory of events is vague. You say that you and MS spent a lot more time together. MS says that she collected her possessions and left walking the streets. 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 you had shaved her pubic hair. Count 13, of indecent assault is a rolled up count comprising the love bite and the shaving.
Lastly I turn to RB – Counts 14 and 15 (rape and recklessly causing injury).
At the time of your offending RB was aged 19. RB has a history of multiple drug abuse and was at the time in issue, receiving support from the Youth Substance Abuse Service. Through that service she became friends with another woman, who introduced her to you. You met RB by arrangement and she gave you some of her medication. Two nights later you rang RB asking her to arrange for you to purchase some heroin. RB told you that she couldn't get in touch with her dealer. You and RB then exchanged drugs of different sorts a considerable number of times. They included ice and heroin. Alcohol was also in the mix. You and RB went to where you were 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. You were pulling up the zip on your pants. Then in the process of putting the skirt back on her you penetrated her vagina with your fingers (Count 14, rape). At this time although you had consumed drugs and alcohol, you were aware that RB might not have been consenting. RB abused you asking what had you done to her. You told her that you would take her home. RB asked for more heroin which she was given. RB then remembers getting out of your car and having to be dragged inside her home. You yelled at her to give you some of her Seroquel tablets which she did. At some stage during the evening you 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 your home. Later you rang RB’s mobile phone. She asked you what had happened the previous night and you told her that she was really smashed, that she drunk most of the alcohol and used most of the heroin.
I note that you were extensively interviewed by police about each complainant. You co‑operated and answered all questions put to you.
When your offences are viewed in totality, they demonstrate a consistent pattern of predatory behaviour. You repeatedly preyed on women who were vulnerable either because of their age or their substance abuse.
Whilst an isolated offence under the influence of alcohol or drugs might be to some extent explicable as a momentary lapse, you continued in a course of predatory offending despite your apparent intelligence, mature years and the opportunities you must have had for reflection between the episodes which bring you before the Court.
As I have said the offending against CA was particularly gross, having regard to her young age and the persistent abuse in which you engaged with her.
In truth however each of your victims was pursued by you in a predatory fashion and subjected to unwelcome sexual advances which culminated in the sexual assault in various ways of six of your victims.
By virtue of your convictions on Counts 1 and 2, you fall to be sentenced on the remaining counts (other than Count 15) as a serious sexual offender. As such I must regard the protection of the community as the principal purpose of sentencing in respect of each subsequent count (although it is not submitted by the prosecution that penalties disproportionate to the objective gravity of the offences are appropriate).[1]
[1]Sentencing Act 1991 s 6D.
The Victim Impact Statements filed in this matter demonstrate the emotional and psychological trauma you have inflicted upon each of those you preyed upon.
CS states:
In 2004 I was going through a bad time and after this incident with the accused instead of turning to someone for help I turned into (sic) more drug use - more speed. I have two kids and after doing the police statement I was so upset I gave the kids to their father as I was suicidal and ended up taking an overdose and [was] in hospital for about a week. This was also [due] to the fact that the police told me they weren’t going to charge him because there wasn’t enough evidence so this made me feel even more depressed and alone.
The kids' father didn't want to give me the kids back - they were 7 y.o. and 5 y.o. and because I had no support to help me with this hard time I actually signed the kids to him for their benefit. This was probably the point in my life where I was the weakest. Signing the kids over was probably the hardest thing I’ve ever done in my life. It was the 1st Christmas without my children and I didn't know how I was going to cope so I turned to heroin.
DJ states:
Since the incident I have gone from a confident, social and happy person to a reclusive and shy one.
I have intimacy issues and very rarely make love to my boyfriend of two years. I’m talking every six months or more. I easily feel uncomfortable and find it hard to show passion or get intimate.
Since hearing about the court process, I regularly experienced flashbacks, and find myself thinking about it a lot.
LT states:
After seeking help, I attended at SACASA for 9 weeks to discuss my humiliation, and my now reclusive nature, as a direct impact caused by George Balassis.
…
During the last 3-8 years I have felt weighed down by this incident, and had hoped for the day my mind, body and spirit would be free again.
Today brings a very special day for me, (and the other witnesses), for all of this anguish I have felt, will now be handed over to … George Balassis to have and to hold, for hopefully many years to come.
PM states:
He [Balassis] took many things from me. He took my freedom, my trust, my social life, and so much more. I used to be a friendly, outgoing, loving person. Now I find it very hard to trust people, especially men. I won’t go out at night without my husband, not even to check the mailbox. I was very street wise before and did not have much fear in life, now I am very scared at night even in my own home when I am alone. I hate to be left alone at night, I often have nightmares. They are not as bad as they were last year but they are still there and will be for the rest of my life.
Attached to CA’S victim impact statement is the report of a psychiatrist, Peter Sherwin, who states in that report:
[CA] presented as an intelligent 14 year old Year Nine student. She was suffering anxiety and depression relating to her recent assault …
…
She was very upset and had difficulty talking about what happened to her in detail at that time. Apart from the stress described above she suffered from no major psychiatric disorder and her thinking was clear and coherent. The effects of the assault have become clearer over my extensive therapy with her … [which] has involved ongoing use of medication (currently Zoloft 200 mg daily), ongoing psychotherapy, and therapy sessions with both parents, and her older brother on one occasion.
…
[CA] had suffered the expected consequences of a significant sexual assault on an intelligent and sensitive young woman in mid-adolescence. There have been effects on her psychologically, academically, socially and in terms of complicating her family relationships. [CA] and her family have worked hard in their lives and in therapy to deal with this trauma. I have hope that as a result of all this that [CA] will be able to live a successful and healthy life in due course. However, some memory and scars will always remain as part of her persona: at various future developmental stages, such as developing intimate relationships with a man, marriage and having children she will have to re-work some of the impact of this assault on her psyche.
CA’s mother states:
[CA]’s school work for the remainder of 2007 was severely disrupted.
…
The impact upon the family has been extremely traumatic. [CA] has exhibited behavioural disturbance in many ways beyond her difficulties experienced at school and with her peer group.
…
She was fearful and often panic stricken in normal public situations and avoided social interaction wherever possible. Her father and I have, to a significant degree, put our lives on hold and sought to respond, as immediately as we could, to [CA]’s severe emotional trauma.
It was submitted on your behalf that the force of the victim impact statements is diminished by prior convictions of four of the victims and by the history of drug use of another. I reject this submission. In my view the statements simply reflect what is overwhelming probable, namely that sexual assault upon persons who are emotionally vulnerable, is inherently likely to result in serious emotional trauma with ongoing psychological consequences for them. It was not submitted to me that I should reject the descriptions of loss of self‑esteem and difficulties with social interaction which the victims set out in their victim impact statements. Each of such descriptions is circumstantial and as I have said reflects precisely the sort of consequences which are entirely probable as a result of conduct of the kind you engaged in.
I specifically reject any suggestion that the fact a woman uses drugs or herself has some criminal record, somehow renders it legitimate to sexually assault her or somehow lessens the probability that sexual assault will be traumatic for her. Indeed it seems to me that to the contrary as CS’s victim impact statement makes clear, assault is highly likely to aggravate any drug abuse problems from which the victim suffers. In my view your criminality was in no way lessened by the fact that your victims were patently vulnerable and in most cases had a history of drug abuse.
I turn then to your personal circumstances. You were born on 23 November 1963 and are now 45. You came to this country with your family from Greece at the age of four. Your father has passed away but you still have the personal support of your mother and your two brothers, who are self‑employed mechanics.
You grew up in South Melbourne and went to the local primary school and in turn completed secondary school. You gained entry to Monash University in 1982 and commenced to study Arts and Law. You did not progress far with these studies and went to La Trobe University in 1984 to undertake a Bachelor of Social Studies. While there you were an officeholder in a prominent Greek youth organisation.
While at university however you married and commenced to operate a fish and chip shop business. You did not complete your degree.
You have two sons, one born in 1992 and the other in 1993.
The fish and chip shop did not prosper and you gradually increased your use of alcohol and drugs. You started using amphetamines in about 1998 and your behaviour thereafter led to the breakdown of your marriage, which ended in 2001. Thereafter your employment history has been erratic and you have had an unsettled life centred upon drug abuse. You have had no fixed address for other than relatively short periods of time. You have descended into widespread acts of dishonesty resulting in convictions to which I shall return.
You attended the Odyssey House program in Sydney for six months in 2004. You then returned to Melbourne but relapsed into substance abuse, chiefly using amphetamines. You then spent a further three months at Odyssey House in Melbourne. Once again however this period did not result in any lasting change to your substance abuse.
It was submitted on your plea that you have demonstrated in effect a split personality. One of the witnesses called on your behalf referred to you as being a Jekyll and Hyde. When you are not using drugs you are well socialised and your counsel submitted ‘charming’. When you are using drugs you have been in your counsel’s words ‘a total ratbag’.
Whilst I accept that your criminal behaviour over the years has been significantly associated with substance abuse, I do not accept that your character is divided in any simple sense. Rather it seems to me that you have consistently demonstrated personality weakness, which must be regarded as fundamental to your character as a whole.
A report from Mr Patrick Newton, psychologist, tendered to the Court states that notwithstanding your evident intelligence you remain a very immature man for your age. He states:
29My 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. These factors have not only left him immature and with an under-developed sense of identity, but they have also left him with a lasting sense of dissatisfaction with life which reinforces feelings of insecurity, inadequacy and self-doubt.
30Mr 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. This provided him with a subculture where he could experience a degree of seeming acceptance and welcome, and where his relative intelligence could allow him to experience a degree of dominance and leadership that was otherwise absent. Moreover, through the use of drugs he has been able to establish his own identity as separate from the work-ethic and success of his family via a quasi-adolescent form of ‘acting-out’.
31While such acting‑out and other 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 Bealasis’ [sic] 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.[2]
[2]Mr Patrick Newtown, Psychological Assessment of Mr George Balassis dated 5 December 2008, pp5-6.
Mr Newton further concludes:
1)Mr Balassis is experiencing some understandable anxiety as his plea hearing approaches. In addition he is suffering some mild depressive symptoms as a result of the guilt and shame he feels for his offending and his pessimism regarding the future. While his symptoms cause him some distress, they are considered to be within normal bounds and do not warrant formal diagnosis.
2)Mr Balassis’ thought processes are normal. He is not psychotic and his reality testing is unimpaired. 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.
3)Mr Balassis is in a period of recovery from a severe poly‑substance addiction. His addiction has been sufficiently severe to warrant the diagnosis of severe and chronic ‘Poly‑Substance Dependence, With Physiological Dependence’. In light of his verified abstinence, this condition is specified as being ‘In Sustained Remission, In A Controlled Environment’.[3]
[3]Ibid, p6.
In Mr Newton’s view you require treatment by way of participation in a specialist sex offender program. You also require drug and alcohol rehabilitation. Even with optimal treatment however, Mr Newton’s view is that you face a formidable and protracted course if you wish to make real a change to your way of life. 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.
Evidence was also called from Mr Joseph Lamberti, who is a former Executive Director of Odyssey House in Victoria and has very extensive experience in drug rehabilitation.
He describes your history as one of poly‑drug addiction, with a preference for central nervous stimulants such as amphetamine and cocaine coupled with heavy abuse of other drugs including alcohol and prescription drugs. (I interpolate that it is the experience of this Court that the use of amphetamines and alcohol are both recurrently associated with violent behaviour).
Having seen you in custody, it is his view that you are currently in remission whilst in that environment.
He states that you are expressing significant shame and remorse for your conduct. (A fact confirmed by each of the other witnesses).
In his opinion there are a number factors favouring your rehabilitation, namely the ability to conceptualise your behaviour, family support, employment (which is offered by your brothers) and family motivation deriving from a desire to reinstate yourself in the eyes of your sons and ex‑wife. In his view, structured professional assistance within a residential program would benefit you materially, if such could be provided by way of a transition back to the community. In his view, the time spent by you in Odyssey House previously has not involved satisfactory completion of treatment there.
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.
Evidence called from one of your brothers, your mother and a friend, confirms that you have the ongoing support of your family and of others who knew you before you descended into dependency on substance abuse. Understandably this evidence also sought to emphasise your good qualities as evidenced by your behaviour when you abstain from substance abuse. 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 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 Ms Williams, 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 ongoing 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.
One matter bearing on the issue of rehabilitation is your criminal record. You have convictions for drug and alcohol related offences in June 1995, June 1999, February 2002 and August 2006. You have convictions for offences of dishonesty in February 2002, October 2002, December 2003 (31 charges), August 2006 (94 charges) and November 2006 (3 charges).
You have been fined, been given an intensive correction order, been given suspended sentences, and been sentenced to periods of imprisonment.
Neither extended contact with the criminal justice system, nor the periods you have spent in the Odyssey House program, appear to have materially affected your maturity or your behaviour.
It is true that as your counsel submitted you have no prior convictions for sexual offences of the type with which I am now concerned. Nevertheless when your record is combined with your age, the continuing and serious nature of the offending which brings you before the Court, the predatory selfishness of that offending, the opinion of Mr Newton as to your underlying personality and the failure of your previous efforts to rehabilitate yourself, the prospects of your future rehabilitation are in my view no more than limited. I am not persuaded they are good.
I turn then to the other major matter advanced on your behalf. In sentencing you I must of course give due weight to your pleas of guilty. The prosecution has properly conceded that those pleas must be given substantial weight save with respect to the charges relating to CA. In her case the pleas were entered only after she had given evidence and been cross‑examined on video tape in accordance with s41G of the Evidence Act 1958. At this time she was a 15 year old year 10 student.
A viewing of that tape demonstrates that she gave cogent and compelling evidence. Indeed it is difficult to escape the inference that your subsequent pleas of guilty were responsive to the overwhelming probability that you would be convicted of the charges founded upon such evidence.
Accordingly, although weight must still be given to your pleas of guilty relating to the offences against CA, it is less weight than in the case of your other pleas. This is a matter of some significance in terms of your overall sentence, given that CA was the victim of seven of the counts with which you are charged and two of these are rolled up counts of rape.
In the case of each of the other six victims, I accept that your pleas must 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.
As against your expressions of remorse, your pleas of guilty, and prospects of rehabilitation, I must weigh the need for a penalty which adequately reflects the gravity of your offending, the need for general and specific deterrence and the need for the protection of the community.
The penalty for the rolled up counts must reflect the combined gravity of each of those counts.
The maximum penalties pursuant to the provisions of the Crimes Act 1958, for the offences with which you are charged, are as follows:
(a) rape, s 38: 25 years imprisonment (level 2);
(b) attempted rape, ss 38 and 321M: 20 years imprisonment (level 3);
(c) indecent assault, s 39: 10 years imprisonment (level 5);
(d) indecent act with or in the presence of a child under 16, s 47: 10 years imprisonment (level 5);
(e) administering a drug for the purposes of sexual penetration, s 53: 10 years imprisonment (level 5); and
(f) recklessly causing injury, s 18: 5 years imprisonment (level 6).
As I have said, your offending involved a protracted course of predatory behaviour over three years. You preyed on seven victims and sought to take advantage of them by reason of either their voluntary or involuntary ingestion of drugs. Each of your victims was vulnerable by reason either of their age or other personal characteristics. You on the other hand were an intelligent adult of mature years. Your own continuing substance abuse cannot excuse this behaviour.
In turn I am required by statute to regard the protection of the community as the principal purpose of sentencing, with respect to the majority of your offences.
As I have already said, whilst I accept you have some prospects of rehabilitation as a drug user, I am not persuaded those prospects are good. In order to maximise those chances however I accept that I should facilitate a sensible period of parole.
Ultimately I must impose a sentence which is just in all the circumstances, which reflects the relative gravity of your offending (including the rolled up counts) but does not result in a total effective sentence which is crushing or cumulatively inappropriate, having regard to the other considerations to which I have referred. In cases such as the present that outcome can only be achieved by providing for substantial concurrence of sentences.
Nevertheless some cumulation of penalty must be provided for with respect to each of your victims. They cannot be treated as mere ciphers.
Moreover nearly 15 years ago in R v Hall,[4] Crockett and Southwell JJ stated:
Community concern about the prevalence and seriousness of rape and like crimes has undoubtedly hardened. And the need for salutary sentences to punish offenders has undoubtedly increased. This change of attitude is reflected in the increase in the maximum sentence that from time to time has been fixed for the crime of rape. Whilst not giving way to public clamour for revenge, the courts in turn are expected to recognise clearly defined and rational community expectations by the sentences that they impose.
[4](1994) 76 ACrim 454 at 475.
The serious offender provisions of the Sentencing Act 1991 have taken this process a step further.[5] Whilst the sentencing process must still have regard to considerations of totality, nevertheless the legislative intent must be accorded weight both with respect to protection of the community and the presumption in favour of cumulation.
[5]Section 6E provides:
6E Sentences to be served cumulatively
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
George Balassis I sentence you as follows:
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 (CA) four years imprisonment 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 imprisonment
I direct that:
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.
I fix a minimum non‑parole period of 16 years.
I direct pursuant to s 6E of the Sentencing Act 1991 that the sentences imposed otherwise be served concurrently.
I declare that you have served a period of 621 days, excluding today, by way of pre‑sentence detention.
I direct that the fact you were sentenced as a serious sex offender be entered into the record of the Court in respect of the sentences imposed on Counts 3 to 14 inclusive.
I direct that you be registered pursuant to the provisions of the Sex Offenders Registration Act 2004 and I record that as a result of having been found guilty of two or more class 1 offences pursuant to that Act you must comply with the reporting obligations under the Act for the remainder of your life (s 34(1)(c)(1)).
I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your pleas of guilty the Court would have imposed a total effective sentence of 25 years imprisonment with a minimum non‑parole period of 21 years.
An order for retention of the forensic sample you provided to police on 20 July 2007 is made pursuant to s 464ZFB of the Crimes Act 1958 by consent.
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