Balassis v The Queen [2011] HCATrans 166 (10 June 2011)

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Balassis v The Queen [2011] HCATrans 166 (10 June 2011)

Last Updated: 16 June 2011

[2011] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M161 of 2010

B e t w e e n -

GEORGE BALASSIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 10 JUNE 2011, AT 1.59 PM

Copyright in the High Court of Australia

MR C.B. BOYCE: If the Court pleases, I appear on behalf of the applicant. (instructed by Melasecca, Kelly and Zayler)

MR G.J.C. SILBERT, QC: If the Court pleases, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ: Yes, Mr Boyce.

MR BOYCE: Your Honours, the principle that is at stake and is raised by this application is the fundamental principle that applies in the criminal law, namely that of remorse, especially in the area of sentencing and its mitigatory force. The reason why it arises in this instance is, it is submitted, because what occurred in this case was that the learned sentencing judge, notwithstanding he accepted that statements made by the applicant of a remorseful nature were genuine and sincere, treated them with “reserve” because in his Honour’s words, they were made by an offender who suffered from a disturbing underlying inadequacy and immaturity to his personality.

Now, one finds that finding by his Honour at application book 107 at paragraph 68 of his Honour’s reasons for sentence. Your Honours will see there that whereas the expressions of remorse made by the applicant and they found themselves set out really in a letter that was read with the concurrence of all into the transcript, and one finds that at AB 79 - I do not need to take your Honours to it. That expression of sincere remorse was objected to by the Crown - - -

FRENCH CJ: Where is there a finding of the sincerity? He did not propose that the letter be rejected as manufactured for the purpose of the plea. That is not the obverse of expressing reserve about the significance of the expression of remorse, is it?

MR BOYCE: I am sorry, your Honour, the finding is that his Honour treats the expression of remorse with:

some reserve. I say this not for the reason advanced by Ms Williams –

who was the prosecutor on the plea.

FRENCH CJ: That is right, he was not saying it was a manufactured - - -

MR BOYCE: Precisely. It was to be treated with reserve, namely because in the judge’s view:

there is, as Mr Newton –

who was the phycologist whose report was tendered on the plea - there existed –

a more disturbing underlying inadequacy and immaturity to –

the applicant’s personality. So it is submitted that where issue was joined between the parties on sincerity, the judge did not reject the expression - - -

KIEFEL J: I think we might be – I am not sure that it amounts to acceptance of sincerity. I had understood his Honour to say that he treated it with reserve because of his ingrained personality defects, but that really goes to the question of - that explains the reality of the remorse. That is the reserve.

MR BOYCE: If I can read on, because perhaps to do fairness to his Honour, one needs to put the sentence in its context:

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.

What it is submitted - his Honour is saying is even accepting that you are sincere in your statement of remorse, the fact remains is that you may be able to talk the talk, but whether you are actually able to put your rehabilitative intentions, as it were, into effect objectively is to be doubted, and that is the basis upon which his Honour expressed some - - -

FRENCH CJ: So he is not prepared to give it great weight as a predictor of future rehabilitation.

MR BOYCE: Precisely.

FRENCH CJ: Yes, what is wrong with that?

MR BOYCE: Because what his Honour did at other points in the reasons for sentence is to deal with the question of rehabilitation and, in essence, find just what fell from your Honour the learned presiding Judge, “There is work to be done and you have an uphill battle, so I find your prospects of rehabilitation to be limited”, but here his Honour is dealing with perhaps a separate question, and perhaps one of the only few matters, or one of perhaps only two matters this particular applicant could bring to the sentencing equation, namely, an expression of sincere remorse, that is to say, to come to the court and say, “I am truly sorry for what I have done. I may have a lot of work to do, I may have a dysfunctional personality, I may have a psychological problem, but I am truly sorry for what I have done and I would like that to be taken into account”.

Now, the submission is that whereas in other parts of the reasons for sentence rehabilitation or the limited prospects of rehabilitation are dealt with, in particular, and I have drawn those paragraphs of the reasons for sentence to the Court’s attention at 3.5 of my outline, namely, paragraphs 59, 72 and 82 of the reasons for sentence, here his Honour is dealing with remorse and - - -

FRENCH CJ: He also deals with remorse, does he not, at 76 and 77?

MR BOYCE: Yes, that is right. He seems to be summing up - - -

FRENCH CJ: Well, you have no complaint about that?

MR BOYCE: No. His Honour takes into account remorse. The problem is that his Honour treats that remorse, does not give it full weight, treats it with some reserve because in his Honour words, “You have a disturbing and underlying inadequacy and immaturity to your personality. That is objectively so you do”. In other words, his Honour has limited the benefit that the applicant could receive for the expression of remorse because of some objective dysfunction from which he suffers.

Now that is, it is submitted with respect, where things become interesting, as it were, if I can put it in an understated way, because a moment’s reflection reveals that a prisoner or an offender who suffers from a dysfunction of the nature that this offender suffers from can be as remorseful sincerely as an offender who does not so suffer, but to treat the aforementioned offender differently on that basis by virtue of his expressions of remorse is to err, it is submitted with respect.

You see, it might be said that we, or this applicant would not be bothering this Court with such a point but for the fact that this applicant had really one or perhaps two major mitigatory factors that he could bring to the sentencing equations, as I have set out in the submissions. One was his pleas of guilty and two was the fact that he said to the court, “I am genuinely sorry for what I have done”. Now, as a statement of at least intent to reform or to change his ways, in the words of, I think it is, Justice Kirby in Cameron’s Case vindicates one of the basic dictates of the criminal justice system - the statement, the sincere statement by an offender that “I am sorry for what I have done and I am remorseful”.

Now, the submission is that – I should say that we troubled the court below. There were two grounds below. There was one ground that related to this question and the second or the other ground was, of course, one of manifest excess. We did not trouble this Court with that ground at least in the argument and, I might say, your Honours, that the indication by the court that this case would be heard in conjunction with the Western Australian case of Lim has given the applicant’s legal advisers some anxiety because once that was discovered and we were able to at least glean a cursory understanding of the facts in Lim, and we discovered that insofar as consistency is concerned Lim got roughly the same sentence as this applicant did, but his offending appears, at least in terms of number, to be far more numerous over a greater period of time involving a far greater number of complainants and in circumstances where the lion’s share of the offending was contested - - -

KIEFEL J: What are you saying, though? You want to add this to your application for special leave or not?

MR BOYCE: I am submitting that if special leave was granted in this case, we would seek to amend our draft notice to add that ground. The fact of the matter is, and I think the Court of Appeal’s decision in Western Australia makes this fairly or tolerably clear, that fortunately for the community this sort of offending, that is, offending you find in Lim and offending you find in this instance, is relatively rare, perhaps not so fortunately for sentencing judges who have to deal with it because there are not that many cases to draw upon. This case was the first, and I think there were three cases referred to in Lim. There is this case and – two other cases. This case and Xydias - - -

FRENCH CJ: BLM, I think.

MR BOYCE: BLM, right. There you are. I do not have the application books in the matter. But the moment’s reflection reveals that a 20-year term for this particular applicant – one tries to understand how it could be, particularly in light of the President’s dissent in Lim – President McLure would have reduced Lim’s sentence – how it could - - -

FRENCH CJ: Lim proceeded in any event on the assumption that the sentence in this case was 25 years.

MR BOYCE: Well, yes. That was the “but for” sentence. We will hear what our friends in Western Australia have to say about that. One examines the differences and one says, well, how could this be explained and one says, well, perhaps there is, in my respectful submission, merit in the submission that I make on the question of remorse, because it is pretty simple analytically in this case. There were only really two mitigatory features that could be brought to bear upon the equation, the pleas and the remorse. The court in Lim said, well, if Lim had shown contrition and pleaded guilty, he would have stood to enjoy a substantial reduction. Balassis did plead guilty and did have sincere remorse and he got 20 years, which is on any estimation a large sentence.

So, as I say, your Honours, we have attempted to put before your Honours the argument – it is a simple argument because it is a pretty conceptually simple case. Before the court below this applicant had two grounds, this ground that I have troubled your Honours with immediately and manifest excess ground. It is submitted on his behalf that special leave should be granted in this case so that the error can be corrected and the case remitted back to the court below for sentencing according to law.

There was, it is submitted, no basis to discriminate between the applicant who showed true remorse and any other offender who showed true remorse. The subjective state should always be accorded, therefore, weight, it is submitted whether the state was apparent in the offender whose otherwise objective prospects of rehabilitation were compromised or, to put it in another way, it would be wrong, in my submission, to treat an offender as, in effect, tending towards being remorseless simply by virtue of an objective condition suffered by - - -

FRENCH CJ: That was never said.

MR BOYCE: No. No, I accept that, your Honour, but if the principle applied in this case by the – it is contended was applied by the learned sentencing judge in this instance, there would be nothing wrong with that being taken to the extreme. If remorse could be treated with some reserve because an offender objectively suffered from a dysfunction or a psychological or psychiatric dysfunction, then there would be nothing wrong with, at least logically speaking, that offender being treated in that manner.

KIEFEL J: Except that, reading his Honour’s statements as a whole, the reserve is really directed to the prospect that the remorse is going to be put

into action and capable of producing a better outcome. That is really what the reserve is all about.

MR BOYCE: Well, that is no basis to treat his expressions of subjective – in other points, as I have said, your Honours, of the reasons for sentence we understand that, objectively speaking, this man has limited prospects of rehabilitation. We are dealing here with remorse and insofar as it existed, whether it existed in the mouth or from the mouth of an offender of this nature or an offender whose objective prospects of rehabilitation were good, it is submitted, the expression of remorse or contrition or repentance by an offender does vindicate one of the basic purposes of the system of criminal justice and the reason for that is, as was said in Cameron, because of the oft-stated belief that such a response indicates the intention of the prisoner to reform and, it is submitted, it was wrong for the court to doubt his intention, at least his sincerity and his intention to treat that with reserve. Your Honours, I do not think I can take the submission any further.

FRENCH CJ: Thank you, Mr Boyce. We will not need to call on you, Mr Silbert.

The applicant seeks special leave to appeal against a decision of the Court of Appeal of the Supreme Court of Victoria which dismissed his appeal against sentence for a number of serious sexual offences. The total effective sentence imposed upon the applicant was 20 years, with a non-parole period of 16 years.

The application for special leave relates to the primary judge’s findings as to the applicant’s immature personality and the judge’s stated view in that context that the applicant’s expression of remorse was to be treated with some reserve. It was open to the primary judge to make that observation in the context of the applicant’s prospects of rehabilitation.

There was nothing in the primary judge’s sentencing of the applicant, nor in the Court of Appeal’s decision, that discloses any question of principle which would warrant the grant of special leave. Special leave will be refused.

MR BOYCE: If the Court pleases.

AT 2.19 PM THE MATTER WAS CONCLUDED