R v Galanis

[2023] NSWDC 286

District Court

New South Wales

Medium Neutral Citation:

R v Galanis [2023] NSWDC 286

Hearing dates:

24 July 2023

Decision date:

28 July 2023

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

The offender is convicted on both offences.

The indicative sentences, each reduced by 25% to acknowledge the timing of the pleas are: Sexual intercourse without consent: 6 years imprisonment with a non-parole period of 3 years and 6 months;

Contravene Prohibition Order: 1 year and 6 months imprisonment.

The sentence imposed is an aggregate sentence of 6 years and 4 months imprisonment with a non–parole period of 3 years and 10 months to date from 7 March 2022. This sentence will expire on 6 July 2028. Eligibility for parole arises on 6 January 2026. This variation to the statutory ratio to 60% gives effect to my finding of special circumstances.

Catchwords:

SENTENCING — Penalties — Imprisonment – Plea of guilty – sexual intercourse without consent - Contravene a child protection order – high risk of reoffending

Legislation Cited:

s.61I Crimes Act 1900 (NSW)

s.13(1) Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)

Category:

Sentence

Parties:

R;
Bill Galanis

Representation:

Counsel:
Defence: Mr Wendler

Solicitors:
Crown: Ms Shepherd

File Number(s):

2022/66849 and 2022/297030

Publication restriction:

Non-publication order re complainant’s identity and/or anything that may identify them

JUDGMENT

1. The offender, Bill Galanis, appears for sentence after entering pleas of guilty to two offences in the Local Court on 15 March 2023. He adhered to the pleas in this Court.

2. The offender will receive a reduction of 25% to each sentence to acknowledge the timing of the pleas.

3. The offences for sentence are:

1. Sexual intercourse without consent contrary to s.61I Crimes Act with a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years; and

2. Contravene a child protection order contrary to s.13[1] Child Protection (Offenders Prohibition Orders) Act with a maximum penalty of 5 years imprisonment.

4. The maximum penalty, and where applicable the standard non-parole period, inform the Court as to the seriousness with which the Legislature regards the offending. Each act as a guide.

5. I have had regard to the full facts and recite them in summary.

6. The offender and the victim met in 2018. They developed a friendship that in 2020 became a relationship. In 2019 the offender informed the victim about restrictions preventing him being around children and schools. The victim had two young children over whom she had shared custody. He told her not to tell anyone and threatened her.

7. The offender was a registrable person subject to a 5-year Child Prohibition Order imposed on 20 September 2018. I observe he was sentenced in 2019 for breaching the order and was sentenced to imprisonment. It is of significance in informing the deliberateness of his conduct and his knowledge that he returned to the victim and continued to interact with her children after being released.

8. In 2021 the offender engaged in penile vaginal intercourse with the victim whereby he instructed her to “starfish it”. The offender obtained a copy of the victim’s house keys without her consent. He attended uninvited. The victim became pregnant and gave birth to their child on 26 January 2022.

9. In 2022, both prior to and after the birth the offender sent abusive messages.

10. On 4 March 2022 the offender visited and brought food. He then went to the victim’s bedroom and undressed. She asked him to leave. The offender approached the victim and pushed her backwards onto the bed. She told him she was still bleeding from the birth and was scared she would get pregnant. The offender told her she would not get pregnant. He held her hands and she tried kicking him off. She is of a very slight build whereas the offender weighed over 100kg. He was physically much larger and stronger. He told her to ‘starfish it’ which she understood meant to lie there and not move. The intercourse was rough. She told him to stop, and he told her to shut up. The offender engaged in unprotected penile vaginal intercourse for a few minutes before he ejaculated. He then left.

11. This act was not of a long duration. There was minimal restraint although it caused bruising to her wrists and forearm. I note the type of penetrative act and that it was unprotected. The victim was exposed to pregnancy. She was also still recuperating from the birth. It was not an isolated incident. There is no evidence it was planned but that it occurred in similar circumstances on other occasions reflects it was not entirely spontaneous. I do not accept the Crown’s submission that the offender took Viagra. This is what the victim believed but otherwise it is not supported by the evidence. The offence occurred in her home where she should have felt an entitlement to safety. The offender acted with actual knowledge of lack of consent. Counsel for the offender submitted the offence fell marginally below the mid-range and the Crown submitted above the mid-range. In all the circumstances this is a serious offence and one within the mid-range of objective seriousness.

12. The offender returned three days later on 7 March 2022 and visited the victim and their child. They later exchanged messages wherein the victim asked for her keys to be returned. The victim then reported the sexual assault to police.

13. The police approached the offender on the same date. Police arrested him and observed him to have scratches on his arm.

14. The offender was remanded in custody from this date.

15. On 2 June 2022 Child Protection Caseworkers spoke to the offender in custody. The offender admitted he had spent time with the victim’s two children on many occasions. There is no suggestion anything improper occurred, but that contact was in breach of the order. The charge pleads only 7 March 2022. The facts establish the offender knew about the order and that he was not allowed to have any contact with the children. The offence occurred against a background of repeated breaches. The offence is of moderate seriousness.

16. I am to determine the offender’s moral culpability. The only matter on the evidence that may lessen moral culpability is the offender’s mental illness. He suffered and continues to suffer paranoid schizophrenia. This is an illness that fluctuates, and I am to determine how it manifested or impacted the offender at the time of offending. Dr Pusey, Clinical and Forensic Psychologist, conducted an interview with the offender on 4 April 2023, 13 months after the offending. He was not provided with the Justice Health records that contain details of the offender including his presentation close in time to the offending when he entered custody.

17. Dr Pusey indicated the offender was not informative about whether he was experiencing auditory hallucinations at the time of assessment. There was no evidence of formal thought disorder. It is suggested there was limited insight into the offending and an issue of impaired judgement. The offender is now medicated for his longstanding schizophrenia and his custody diagnosed depression. He was subject to medication by injection when bound by a Community Treatment Order. This was not current at the time of offending. He stated his last mental health involvement was about 14 months prior to the offending. The offender did not clearly advance that auditory hallucinations were present at the time of offending. The Justice Health records include a 2021 mental health discharge report that the offender indicated as at February 2021 he was experiencing the return of auditory hallucinations. By July 2021 auditory hallucinations were discounted with ‘nil concerns’ noted. The reception assessment form dated 9 March 2022 recorded the offender disclosing schizophrenia and stating he had no symptoms in the previous month and was not receiving medication. He initially remained unmedicated on remand. On 29 March 2022 he reported paranoid thoughts and over the following days reported the decline of his mental health. A Justice Health assessment in September 2022 recorded the offender advancing auditory hallucinations.

18. Dr Pusey opined that the cognitive impairments associated with psychotic illness may have impaired judgement and decision making; thereby advancing a connection with the offending. However, the opinion was that the connection was unclear. It also may impair insight. The evidence strongly suggests the offender has limited insight into the offending.

19. I do not accept there to be a causal connection between the offender’s mental illness and the offending. It was not operating such as to explain his conduct. The most that may be comfortably determined is that his judgement was generally impoverished. There is only the most modest of diminution of moral culpability.

20. It is important that sentences passed for sexual assault crimes recognise the harm done to the victim of the crime. The impact of such offending upon victims is well understood and accepted even without supportive material. The facts disclose the victim’s presentation upon making complaint. I do not determine that it was of such degree as to be an aggravating feature.

21. A plea of guilty does not necessarily convey remorse. The offender presented a false account to Dr Pusey. He advanced an account that does not reconcile with the agreed facts. It is a hearsay account. I attribute the version advanced little weight.

22. The offender described experiencing guilt and remorse but did not link it to this offending. The version of the relationship advanced by the offender does not support remorse. The Justice Health records reflect the offender claiming the brief of evidence to contain rubbish and advanced he thought either the victim or the police were lying. This was after he entered his pleas of guilty. I am unable to determine the offender is experiencing remorse. It may well be his mental health issues prevent this surfacing or being clearly expressed.

23. The offender is now aged 56. The offending reflects a significant lack of judgement.

24. The offender has a criminal history commencing in the adult jurisdiction in 1985 including other sexual offences and other personal violence offences. Importantly, there is an indecent assault in 1986 which resulted in a bond and sexual intercourse without consent in 2005 that resulted in imprisonment. The facts of the latter offence are tendered. The victim in that offending was aged 15 and the offender committed the offences whilst she was under the influence of substances.

25. There are breaches of court orders. Notably there was a failure to comply with a supervision order in 2016 and contravening prohibition orders in 2019 with both resulting in imprisonment. The latter occurred during the period the offender and the victim were friends. The facts of both offences are tendered. It is noted the offender was determined to be a high-risk sex offender. The nature of the record deprives the offender of an entitlement to leniency.

26. A psychiatric report and Justice Health material were tendered on behalf of the offender.

27. The offender was exposed to domestic violence within his family. His father additionally was an alcoholic. He received education to year 10 and subsequently was employed when not in custody. The offender maintains a work ethic. He has sciatica which impinges upon employment at times. There is a CT report tendered. He has limited contact with two adult children. He comprehends he will experience limitations in maintaining any relationship with his young child.

28. I am assisted by differing assessments on the risk of reoffending. Given the not dissimilar antecedents, I consider there to be a real risk of re-offending for similar offences. I note the previous high-risk assessment. This determination suggests that the prospects of rehabilitation are not positive. It follows that personal deterrence has a significant role to play. This is assessed at this level by reference to the offender’s continuing mental illness.

29. General deterrence and denunciation are principles of sentencing which are relevant to cases involving sexual abuse. Sexual offending requires appropriate sentences to provide for general deterrence to serve a meaningful role. Although I accept the offender had schizophrenia it does not explain his offending. I do not accept there to be a causal connection. It does not operate to lessen the importance of general deterrence.

30. The period in custody will deprive the offender of access to his and the victim’s child who is now aged about 18 months. This is unfortunate.

31. It is accepted that the s.5 threshold is passed and that full-time custodial sentences are required.

32. I am mindful of the requirement to comply with the principle of totality in ensuring that appropriate individual sentences are imposed but also that the overall sentence is appropriate. That the offences occurred close in time and both are factually related supports significant concurrency. However, some degree of accumulation is necessary to address the separate components of the separate offending. Despite there being only two offences, I consider it appropriate to impose an aggregate sentence. The offender has been on remand since his arrest on 7 March 2022 and sentence will commence from that date.

33. Based on the necessity to notionally accumulate indicative sentences, the more restrictive conditions due to COVID, the more onerous conditions in custody due to mental illness and the need for an extended period of mental health support upon release I make a finding of special circumstances. This will result in a variation to the statutory ratio.

34. The offender is convicted on both offences.

35. The indicative sentences, each reduced by 25% to acknowledge the timing of the pleas are:

Sexual intercourse without consent: 6 years imprisonment with a non-parole period of 3 years and 6 months;

Contravene Prohibition Order: 1 year and 6 months imprisonment.

36. The sentence imposed is an aggregate sentence of 6 years and 4 months imprisonment with a non–parole period of 3 years and 10 months to date from 7 March 2022. This sentence will expire on 6 July 2028. Eligibility for parole arises on 6 January 2026. This variation to the statutory ratio to 60% gives effect to my finding of special circumstances.

37. No lesser term or non-parole period would address the seriousness of the offending.

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Decision last updated: 31 July 2023