Director of Public Prosecutions v Blackburn (a pseudonym)
[2023] VCC 1220
•14 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK BLACKBURN (a pseudonym) |
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JUDGE: | DEPUTY CHIEF JUDGE M. SEXTON |
WHERE HELD: | Geelong and Melbourne |
DATE OF HEARING: | 24, 25, 27, 31 Jan, 1, 2, 3 Feb 2022 – Trial 17 April and 7 July 2023 - Plea |
DATE OF SENTENCE: | 14 July 2023 |
CASE MAY BE CITED AS: | DPP v Blackburn (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1220 |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Indecent act with a child under 16 – incest as a course of conduct – indecent act with a child under 16 as a course of conduct
Legislation Cited: Sentencing Act -
Cases Cited:DPP v Blackburn [2012] VCC 691 – R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194 – R v Sposito (Unreported, Supreme Court of Victoria Court of Criminal Appeal, 8 June 1993), DPP v Dalgliesh (a pseudonym) [2017] VSCA 360 – DPP v Walsh [2018] VSCA 172 – Crawford (a pseudonym) v R [2018] VSCA 113 – DPP v Tullipan (a pseudonym) [2021] VSCA 191 – Weir (a pseudonym) v R [2023] VSCA 113 – DPP (Vic) v Dalgliesh [2017] VSCA 360 – HMcL v R (2000) 174 ALR 1
Sentence:TES – 13 years 2 months imprisonment to serve 8 years before becoming eligible for parole – registered sex offender for life – serious sex offender
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Sharpley for the Trial Mr D. Hannan for Plea Mr D. Brown for Further plea and sentence | Office of Public Prosecutions |
For the Accused | Mr M. Turner | Rolfe Criminal Law Pty Ltd |
HER HONOUR:
1At the outset, I remind those listening that publication of anything likely to identify the complainant in a sexual offences case is prohibited by an Act of Parliament.[1] In my published remarks, pseudonyms will be used for the name of the complainant and any family member, including the accused. I will refer to her by her first name, even though she is now an adult. I mean no disrespect in doing so.
[1] Section 4, Judicial Proceedings Reports Act.
2Before commencing my sentencing remarks, I also want to apologise for the time it has taken since the conviction at trial in February 2022 to reach this sentence date. None of this has been the fault of Mr Blackburn (a pseudonym), and I will take that period of delay into account, as I will explain later. I also acknowledge the impact that delay must have had on the complainant, Molly (a pseudonym), who gave her evidence in a special hearing more than two years ago and has waited for this day for over 12 years since the offending occurred.
THE INDICTMENT
3Mark Blackburn, on 2 February 2022, after a trial, the jury found you guilty on three charges. These charges are:
·Charge 1, indecent act with a child under 16, which carries a maximum term of 10 years' imprisonment;
·Charge 3, incest as a course of conduct, which carries a maximum term of 25 years' imprisonment; and
·Charge 4, indecent act with a child under 16 as a course of conduct, which carries a maximum term of 10 years' imprisonment.
4On Charge 2, incest as a course of conduct, the jury failed to reach a verdict.
CHRONOLOGY
5Before I turn to the circumstances of the offending, your background, and the sentence, I think it is necessary to address the long delay between the time the verdicts were delivered to today.
6It has been 17 months since the verdict was taken from the jury on 2nd February 2022. Mr Blackburn had been in custody since his bail was revoked on 24th April 2020, and was remanded again following the verdict.
7Defence counsel indicated that they would be seeking an expert report for the plea hearing. Counsel for the prosecution indicated that they too needed time to obtain instructions in relation to Charge 2. As a result, the matter was adjourned to a date to be fixed for plea.
8On 17th February 2022, the Prosecution filed a Notice of Discontinuance in relation to Charge 2 on Indictment L10982683.1. On 18th February 2022, by consent, orders were made administratively in chambers withdrawing Charge 2 and adjourning the matter to a plea date of 25th July 2022.
9On 8th July 2022, Defence advised a booking had been made for a forensic psychiatrist to see Mr Blackburn, because he was being treated in prison with psychiatric medication, and it was the view of the Defence that this, along with Mr Blackburn's Children's Court conviction for attempted incest it meant that the court would need to be apprised of his mental state and risk assessment if it was to properly engage in the sentencing exercise.
10The matter was adjourned by consent to 11th August 2022.
11On 21st July 2022, Defence provided an update: the forensic psychiatrist was no longer available, and a different expert, a forensic psychologist, had been retained but was not available to conduct the assessment until late October 2022, and the report would not be available until early November 2022. By consent, the relevant orders were made administratively, with the plea relisted for 5th December 2022.
12On 12th October 2022, Defence again requested an adjournment, because an application for funding for the expert report made to Victoria Legal Aid on 22nd July was not approved until November. No assessment time had been booked while funding was pending, and upon receiving the late approval, the proposed expert indicated that the report would not be ready before the next listed plea date on 5 December. Defence confirmed that the assessment was now booked for Friday 6 January 2023. Due to availability of the parties and the court, the plea was adjourned by consent to 17th April 2023.
13At a mention on 28th March 2023, Defence advised that due to the length of time required by the expert for the planned assessment not being accommodated by Ravenhall Correctional Centre, where Mr Blackburn is being held, the assessment had not taken place. To avoid any further delay, the defence made an appointment with Gina Cidoni for a forensic psychological assessment and report which was to be ready by the plea date of 17th April.
14
On the day of the plea, 17th April, Defence Counsel advised that the report had not been provided, with no indication to them as to when the report would be ready. After discussion, the plea commenced and was then adjourned
part-heard with an order made by the court for a psychiatric report from Forensicare. The matter was then listed for a further plea on 7th July for any further submissions by the parties upon receiving the Forensicare psychiatric report. As it happened, the psychological report from Ms Cidoni was filed with the court the day after the initial plea hearing.
15Following further submissions on both the Forensicare report[2] and the report of Ms Cidoni[3], the matter was adjourned to today – a week later – for sentence.
[2] Exhibit C
[3] Exhibit 2
16As I will come to later, the Forensicare report was not as helpful as I had thought it might be; although it covered certain matters, it did not, in my view, adequately deal with the full criminal history of sex offending by Mr Blackburn and the effect on the assessment of risk for future offending. This was frustrating given the number of adjournments granted since verdict seeking to achieve this aim.
BACKGROUND TO THE OFFENDING
17Mr Blackburn, I now turn to briefly describe the background to your offending before giving an overview of the offences consistent with the jury verdicts of guilty on Charges 1, 3 and 4.
18The complainant Molly, is your daughter, one of two children that were born from a long-term relationship you had with their mother before it broke down in about 2004, and they have had little contact with her since. There was a short reconciliation between you, and a third child was born in 2009. Sadly, he died as an infant.
19Molly and her brother lived with you after the relationship ended, moving with you to multiple addresses within regional Victoria. Although the Department of Human Services (the Department), as it was then known, were involved with the family over a number of years due to concerns in relation to environmental neglect and inadequate supervision of your children and their lack of school attendance[4], the decision to remove the children came only after sexual offending was committed by you against GM in June 2011[5]. GM was a friend of your daughter, and of the same age. It seems that despite the immediate complaint by GM of your offence against her, your children were not taken from your custody until five months later. They were in foster care until mid-2015 when they were placed into the care of your brother and his wife, who became their primary caregivers.
[4]DPP v Blackburn [2012] VCC 691, [43].
[5] Above, [44].
20You pleaded guilty to the offence of committing an indecent act with a child under 16 in relation to GM and were convicted and released on a community correction order with conditions in 2012[6]. At the time you were sentenced for the single instance of offending against GM, there was no knowledge of the ongoing abuse you were inflicting on your daughter for years before and months after the offence you committed against GM.
[6] Above.
21No-one knew about your offending against your daughter, because Molly had told no-one. I want Molly to know that this is very common; very few children tell anyone of sexual abuse by their parents, for very good reasons. In her evidence, Molly gave her very good reasons. She gave evidence that when questioned by police after the assault on GM by her father, she said that you had not touched her because she only knew you and her brother as family and did not want to lose you, which would happen if she did tell what was going on. She said when she was younger, she hated you for what you were doing, but still loved you. This too is very common for children in this dreadful position. As Molly got older, she said she had more of a problem dealing with it but kept it to herself. As I have said, this is very common with children.
22Molly and her brother were permanently removed from your custody in November 2011, following your risk assessment by a psychologist arising from your offence against GM. At that time, Molly was examined by a doctor but did not tell anyone of your abuse and gave evidence in your trial that she did not remember if she had been asked about abuse [by you] at the time. Her uncle, her carer, gave evidence that she later told him that she had said something about being abused by you when she was first taken into foster care, but she was not believed. Molly said in her evidence that by the time she came to live with her uncle, it was no longer important, and she did not have to worry about it anymore.
23It was much later that you acknowledged the offending for which you were ultimately convicted (Charges 1, 3 and 4) when you offered to plead guilty to those charges. However, as the offer was not accepted by the Prosecution, the trial proceeded. I will return to this aspect.
24Your offending against Molly was discovered 11-12 years later when she underwent a medical procedure in November 2019. The medical practitioner performing the procedure made certain observations that caused the practitioner to ask Molly's uncle, as her caregiver, whether Molly had been sexually abused in the past. As far as he knew, Molly had not, but he asked Molly that question, and Molly immediately said she had been sexually abused by you when she was younger.
25I need to address here an unfortunate misunderstanding that arose in this case, about what was seen by the medical practitioner during Molly's surgery in 2019 when she was aged 16. The doctor who performed the surgery provided a statement which was read to the jury and became evidence[7]. The first thing to say from that statement is that the doctor observed something about the urethra, not the uterus. The doctor did not refer to the uterus at all. The second thing is that what the doctor observed about the urethra led her to ask Molly's uncle, as her carer, about Molly's history to see what might have caused what the doctor saw. The doctor asked if Molly had been sexually assaulted, as that was one possible cause. However, the doctor was clear in her statement that if what was seen was caused by penetration, it could only be caused by penetration of the vagina. That type of penetration was not alleged in this case. Other possible causes the doctor referred to in her statement were previous surgery or a previous insertion of a catheter. However, most importantly, the doctor said it was also possible that what was observed was congenital – that is, present from birth – and not 'caused' by anything else that happened.
[7] Transcript of trial p98, 31/1/22
THE OFFENCES
26By the time Molly gave her evidence in the recordings with police in November 2019 and April 2020, she was unable to recall exactly when the abuse commenced but said it was while she and her brother were living with you, and the abuse increased in frequency before their removal by the Department in November 2011. Molly was about to turn nine when she and her brother left your custody.
27However, she recalled one specific incident in a disabled toilet facility at a park in a regional town. Because Molly could not be certain about when this occurred or how old she was, the assault was alleged to have occurred between her 5th and 8th birthdays, based on the period that Molly and her brother were in your sole custody.
28On this occasion, Molly needed to go to the toilet, so you took her to the disabled facility while her brother waited in the car. Molly gave evidence that once there, you touched her, although she could not recall how you were touching her; you then started to undress her, taking off her pants and underwear. You then laid her on the ground and got on top of her, and she began crying and screaming (Charge 1). You stopped and took her back to the car.
29Molly gave evidence that that she was unable to recall any other specific occasions but said that the sexual abuse continued until she was removed from your care, and that the abuse increased in frequency from approximately 2 - 3 times a week, to occurring 7 times in the 20 days from her brother's birthday on 9th November to their removal from you on 29th November 2011.
30On these occasions, you would take your daughter to your bedroom where you would remove the bottom half of her clothing, leaving her top on. You then placed her on your bed and penetrated her mouth with your penis (Charge 3 – incest as a course of conduct). You also licked her vagina (Charge 4 – indecent act with a child under 16 as a course of conduct). Molly was not sure if each type of act occurred on each occasion.
31This combined course of conduct took place between her 8th birthday (December 2010) and the date the children were removed by the Department (29th November 2011). On Molly's evidence, at the lowest rate of frequency, you committed one or other or both of these acts at least 100 times over that period.
SERIOUSNESS OF THE OFFENDING
32For Charge 1, on the evidence, you touched your daughter before you undressed her, laid her on the ground and laid yourself on top of her. I find that the touching itself was at a low level because, wherever or however you touched her, which is not known, she was touched by you somewhere on her body over her clothing. However, undressing her, laying her on the ground and lying on top of her are circumstances of indecency immediately following the touching and caused her such a level of distress that she began crying and screaming. She was extremely young, aged between five and eight years. I take all of those circumstances into account as part of my assessment of the seriousness of the offence and find the offence is by no means at the lowest level.
33For Charges 3 and 4, this is offending towards the high end of the scale of seriousness. The offending described in these charges was over a prolonged period, was an ongoing course of conduct involving many, many acts of abuse against a very young child who was your daughter, and occurred at a high level of frequency, which became even more frequent towards the end of the period. It stopped only when your daughter was removed from your custody. It did not stop when you were charged with the single offence committed against GM. Indeed, as I have said, within a couple of months of that offence, the level of frequency increased.
34For Charge 3, the abuse involved appalling penetrative abuse over that prolonged period of time and with that frequency. It is the interweaving of the sexual acts in Charges 3 and 4 continuing over such a long period of time that made it, understandably, so difficult for Molly to discern whether each act always occurred on every occasion. I find it highly likely that both types of act occurred on the same occasions although I cannot be satisfied beyond reasonable doubt about that.
35Your offending constitutes serious offending by reason of the following:
·First, the egregious breach of trust in continually abusing your daughter, who trusted you and loved you despite the offending;
·Next, Molly was extremely vulnerable because of her age (somewhere from five to nearly nine) and her relationship to you, not just as your daughter, but because you and her brother were the only family she had at that time;
·Next, you exploited that vulnerability by acting on countless opportunities to offend against her over more than a year;
·Next, other than the opportunistic offending in Charge 1, you engaged in your heinous courses of sexual conduct in the home where the family lived and where Molly was entitled to feel safe and protected, not abused;
·Next, there is about 22 years difference in age between you and your daughter, with her age of between five and eight years for Charge 1 and between eight and nine years for Charges 3 and 4; and
·Lastly, there is and remains a significant impact on Molly, as I will outline next.
36It is an aggravated feature of your offending that you continued to offend after you had been charged with the offence against GM.
37Despite this high level of seriousness, I cannot find the offending is at the highest level of offending, as tragically, there are even worse things that a father can do to a daughter. That does not make your offending any less serious but means that it is not to be assessed at the highest level of seriousness. Make no mistake, it is still extremely serious and that will be reflected in the sentence.
38On an assessment of all the relevant factors, I find your offending consisted of serious examples of each type of offending for Charges 3 and 4. While not objectively the most serious, the overall offending is serious, as I have said. I find your moral culpability was high. For reasons I will come to, there is no reduction of your moral culpability on the basis that you suffered from a mental illness at the time of the offending.
IMPACT ON THE VICTIM
39Turning to the impact of your offending on Molly, I have received and read the victim impact statement from her. In keeping with her wishes, it has not been read out in court, and I will not reveal its contents here. What I can say is that it shows the deep impact that your offending has had on her, which is ongoing.
40When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them. The harm can be long-term and serious and include both physical and psychological harm[8] and can include future harm.[9]
[8]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33].
[9]Adamson v R [2015] VSCA 194, [56].
41It is recognised that any sexual offending against a child by a parent constitutes a most abhorrent abuse of trust, in part due to the inherent vulnerability of the young victim in such cases. As I said, children are entitled to feel safe and protected in their own home. As stated years ago in the Supreme Court of Victoria and restated in similar ways many times since:
A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children … [incest] include[s] the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim …[10]
[10] R v Sposito (Unreported, Supreme Court of Victoria Court of Criminal Appeal, 8 June 1993) as cited in DPP v Dalgliesh (a pseudonym) [2017] VSCA 360, [67].
42Therefore, the shocking toll of child sexual abuse is well recognised by the courts and by me in sentencing you for what you did to your daughter. I take into account the harm caused to her.
43Molly is now a young adult. Molly, I offer the hope that over time things will improve for you, perhaps become better over time. I recommend that you take the opportunity for obtaining professional help to work through the difficult days, and the OPP and the Child Witness Service, who I know are supporting you today, can provide details about that. I do wish you well for the future.
PERSONAL HISTORY
44Turning to matters personal to you, Mr Blackburn, you are now aged 41, about to turn 42 later this month. I have already set out some of your personal history in the background to the offending, and more detail is contained in the report of Gina Cidoni.[11] However, I will set it out here.
[11] Exhibit 2.
45From a young age, you led a disrupted and transient life, with your parents divorcing when you were five years old. This was followed by frequent moves until your mother re-partnered and had children in this new relationship. Although your childhood was a disrupted one, you report that you were not yourself abused.
46You first appeared in court at the age of about eight and a half years on dishonesty charges, and again aged nearly 13, also for a dishonesty charge. Disturbingly, you next appeared in court at the age of 16 for three charges of attempted incest of a stepsister which apparently occurred when you were aged 12 and she was aged four.
47The result of that case was that you were placed on probation without conviction for 18 months on condition that you attend programs as required. A report about that probation was provided to, and referred to by, the judge who sentenced you for the offence you committed against GM.[12] The report about your probation was not available to me, nor to the experts assessing your risk of sexual reoffending in this case. Apparently, the report contained details of the offending against your stepsister, as well as noting that as a result of the programs you attended, you had apparently developed insight as to your sexually abusive behaviour and the consequences upon others. Unfortunately, it seems that insight did not develop sufficiently to prevent you from offending years later against your daughter at a very young age nor against GM, also at a young age. I will return to this aspect with respect to your risk of reoffending.
[12] DPP v Blackburn (a pseudonym) [2012] VCC 691, [40]–[42].
48When the allegations in relation to your stepsister were raised, you had to move out of the family home and were placed in the care of the Department. In reality, that meant living in a group house for a few months until you received Centrelink benefits and became independent. You then left school at the end of Year 8, having attended three primary schools and two high schools. You did not do well at school and say you were bullied although you report that you did not suffer any significant learning difficulties, and you do not know why you were bullied.
49After leaving school, you managed to obtain a number of part-time jobs and seasonal work over short periods but have never held a full-time job. You moved in and out of regional Victoria, including interstate. Your longest employment was as a cleaner, but this came to an end at the age of 18 when you were struck by a car as a pedestrian and lost consciousness. This collision resulted in back and head injuries and required you to be hospitalised for a few hours for monitoring. You do not recall having scans of your head. You have had ongoing shoulder pain and migraines. You told Dr Rodrigo[13] from Forensicare that you found it difficult to work following the injury due to problems with memory and concentration but also said to that doctor that there was not a period of time following the injury during which you were disorientated or confused and unable to recall new information. It appears that you have had no assessment or treatment for a possible brain injury.[14]
[13] Exhibit C, Forensicare report dated 21 June 2023, [16], [27].
[14] Amongst conditions of the community correction order imposed in 2012 was a condition that the prisoner undergo assessment and treatment for referral to ARBIAS, but the prisoner has no recollection of the referral. Above, [78].
50At the same age, 18 years, you began smoking cannabis although I do not know if this was before or after you sustained your injuries. According to the reports of Ms Cidoni and Dr Rodrigo,[15] you continued to smoke cannabis on an almost daily basis for the next 20 years until you went on remand for the offending against Molly. According to the sentencing remarks from 2012,[16] however, you stopped using cannabis in about 2005; also apparently you drank alcohol to excess at times back then.
[15] Exhibits 2 and C.
[16] DPP v Blackburn [2012] VCC 691, [49].
51After the collision, as an adult you continued to live the transient lifestyle that was a feature of your childhood, including moving interstate, before eventually settling in a regional city where you found a home to rent. You met and formed your longest relationship with the mother of your children until that relationship broke down.
52In the years before you went into custody in 2020 on the offences for which I am sentencing you, you had contact on an irregular basis with your father. Like your mother, he had re-partnered and had other children. You have a very close relationship with your mother, and she has supported you throughout this whole trial, including travelling considerable distances from regional Victoria to where the trial was held in Geelong, and to Melbourne for both the plea hearing and sentence. You do not have any relationships with any of your extended and immediate family as a result of your offending against Molly, and even before your incarceration lived a relatively isolated life.
53A criminal record was filed with the court which contains only offences committed by you as an adult and which were dealt with before you offended against your daughter. Those offences are irrelevant to the sentencing exercise today, as they are all driving offences. Your Children's Court offences and the offence committed against GM cannot be treated as a part of your criminal record for the offending against Molly. However, sexual offending, whenever it was committed by you, can be relevant when I come to assess your risk of reoffending.
54I will come to that risk assessment shortly.
MENTAL HEALTH AT THE TIME OF THE OFFENDING AGAINST MOLLY
55Because of the availability of the sentencing remarks of the judge who sentenced you for the offending against GM,[17] it is known that at the same time you were offending against Molly, you were described as not having any history of mental illness or depression.[18]
[17] Above.
[18] Above, [55].
56In the two reports filed in this case before me[19], there is nothing to disturb that finding. Under a heading “Mental State at the Time of the Alleged Offending”[20], Ms Cidoni reflects that a number of aspects of your personal history 'may' have played a role but does not definitively express an opinion. Dr Rodrigo notes your report of developing hearing voices and paranoia approximately six years ago[21]. That clearly developed well after your offending against your daughter. Dr Rodrigo found it unlikely that your mental state 'significantly influenced' the offending against Molly.
[19] Exhibits C and 2
[20] Exhibit 2, [81]ff
[21] Exhibit C, [30]
57Both the prosecution and defence counsel agreed that there is no basis for a finding that a mental illness at the time of the offending for which I am sentencing you should reduce your moral culpability for this egregious conduct. I too agree.
MENTAL HEALTH AT THE TIME OF SENTENCE
58Both counsel also agreed in their submissions that there is a basis for finding that your current mental state will make your sentence of imprisonment weigh more heavily on you.
59Ms Cidoni found you met the diagnostic criteria for schizoaffective disorder. Ms Cidoni described this as “a mental illness that combines symptoms of psychosis and/or disordered thinking with symptoms of a mood disorder … also difficulty in perception, with social interaction, communication and daily functioning”. She said that it typically occurs in late adolescence or early adulthood, which was not the situation in your case.
60Dr Rodrigo found you met the diagnostic criteria for schizophrenia. He said you described persecutory themes and hearing voices since 2016, and demonstrate negative symptoms of schizophrenia, such as reduction in speech, blunted affect and lack of interest in and avoidance of social interactions due to anxiety. Ms Cidoni described a similar presentation at paragraph 42 of her report. Dr Rodrigo considered your insight and judgment with respect to your mental health were fair; however, Ms Cidoni said your insight, awareness and judgment appeared low.
61Ms Cidoni said that schizoaffective disorder can be chronic and debilitating if left untreated. You are currently prescribed olanzapine in custody, which you were first prescribed in the community about six years ago. You stopped taking it in 2020 and developed suicidal thoughts. On going into custody when your bail was revoked in 2020, you resumed the medication. This treatment has led to a reduction in the hearing of voices, but paranoid thoughts continue although with less severity. However, treatment for this disorder should also include psychotherapy, and that is unlikely to be provided to you whilst in custody.
62Apart from lack of that particular treatment, your disorder affects the way you spend your time in custody. You told Dr Rodrigo that you have been in the Protection Unit since you went into custody in March 2020, that you keep to yourself due to paranoia about other prisoners and spend your time watching television and playing card games by yourself. You do not work as a billet because of your paranoia, as well as ongoing shoulder and back pain. You reported to Dr Rodrigo feelings of confusion, poor memory, reduced concentration, difficulty in planning and in communication, and disorganisation.
63Dr Rodrigo thought that these symptoms could be due to an acquired brain injury from the collision when you were aged 18, or to schizophrenia. He said that further exploration of cognitive difficulties with detailed neuropsychological assessment will clarify the diagnosis. Again, this is unlikely to happen while you are in custody.
64On testing by Ms Cidoni, you were found to have verbal reasoning abilities in the borderline range. Your ability to sustain attention, concentrate and exert mental control is in the low average range. There were indications of impaired capacity for verbal word and story learning and significant difficulties with recognition and retrieval of information from longer-term memory.
65I note that it was a condition of the community correction order you were ordered to complete when sentenced for the offence against GM in 2012 that you attend for mental health assessment and treatment to allow for referral to an organisation known as ARBIAS and to support you to assist with cognitive deficits. That apparently did not occur as you breached the community correction order.
66Such an assessment and referral will not be forthcoming while you are in custody. However, I strongly urge Corrections Victoria to note the recommendation from Dr Rodrigo at paragraph 58 of his report to ensure you are linked to appropriate services in the community before your release from the sentence I am imposing today.
67I note that you have no visitors in custody. You have phone calls twice a month with your mother.
68Your counsel submitted that there should also be a reduction in the sentence to be imposed because of the serious risk that imprisonment will have a significant adverse effect on your mental health. The Prosecution submitted that this was more difficult for them to concede as being appropriate given that your mental health has been stabilised by the medication prescribed for you in custody whereas immediately before you went into custody, you had stopped that medication while in the community, with adverse effects. Further, it was submitted that Ms Cidoni couched her opinion on the impact of imprisonment in terms of possibility,[22] and that was insufficient material to reach the high test of a serious risk of imprisonment having a significant adverse effect.
[22] Exhibit 2, [95]-[96].
69On the basis of your current mental state and the opinions of Dr Rodrigo and Ms Cidoni as well as the submissions of counsel, I accept that your time in prison will weigh more heavily on you than on a person who does not suffer from your disorder. This will result in a reduction in the sentence that I would otherwise have imposed.
70As to the next point, despite the appeal of the prosecution's submissions about the stabilisation of your mental health in custody and the lack of strong material to meet the high test regarding the impact of imprisonment, on the basis of all the information I have gone through as to your current mental state and circumstances in custody, and taking into account that your term of imprisonment will be lengthy, I find that there is a level of risk that imprisonment will have a significant adverse effect. While that may not rise to a 'serious' risk, in my assessment it is a factor that should produce some further reduction in the sentence that I would otherwise have imposed.
71Now, Mr Turner and Mr Brown, I pause there to say that unfortunately I have been advised that the link to Ravenhall will end at 10.30, and I still have some important and significant matters to refer to before I can proceed to sentence, and it cannot be extended. It is possible that there is time available this afternoon, so could I just find out, Mr Turner, what your availability is.
72MR TURNER: I can be available, Your Honour.
73HER HONOUR: All right.
74MR TURNER: My preference is that if it is this afternoon, that I appear online, but I can - - -
75HER HONOUR: We can certainly do that.
76MR TURNER: Thank you, Your Honour.
77HER HONOUR: Just pardon me. I will just get an update before I turn to you, Mr Brown. Apparently, they can accommodate 11.30.
78MR TURNER: That is fine.
79HER HONOUR: So that would only be an hour's delay. Mr Brown, will you be available from 11.30?
80MR BROWN: I will be, Your Honour, yes.
81HER HONOUR: Thank you, all right. So first of all, to Molly, I apologise that we have had this break. This is most unfortunate. However, we can now all take a break, as it were, for an hour, and I will come back and finish my sentencing remarks and deliver the ultimate sentence. Mr Blackburn, likewise, I apologise for this unfortunate break, and we will see you back online at 11.30. Ms Blackburn, I also apologise to you. Fortunately, it will not be delayed too much into the afternoon, which would have been difficult for you. Yes, thank you. I will stand down until 11.30.
82(Short adjournment.)
83HER HONOUR: Yes, thank you, everybody. I understand we have everyone back online. I can assure you that I will not be as long as I was previously in finishing these remarks. I can also assure everyone that we will not run out of time; we have plenty of time allocated to us now. I recommence my sentencing remarks by turning to an assessment of the risk of reoffending.
ASSESSMENT OF RISK OF REOFFENDING
84The sentencing judge in the case involving GM was provided with four psychological reports from 2004, 2011 and two from 2012, the last three prepared at the time of and shortly after the period in which you, Mr Blackburn, were abusing your daughter, which, as I have said, was not known at the time.
85
The 2004 report was requested by the Department for an assessment of your risk of sexual offending and any risk posed to your children if they were to continue to live with you. That report described the offending against your
four-year-old stepsister when you were aged 12 and your engagement with counselling at the age of 16 after the case was finally dealt with where you apparently developed a level of insight as to your sexually abusive behaviour. The report writer ultimately concluded in 2004 that your level of risk to your children was not at a level where your access to them would be prohibited. According to the sentencing judge, the report writer qualified her assessment on the condition your relationship with your partner, the children's mother, was stable; however, the judge also noted that it appeared from the report that the relationship was clearly unstable.[23] The children remained living with you.
[23] DPP v Blackburn [2012] VCC 691 [43], [42].
86Following you being charged with the offence against GM, a report dated 8 November 2011 was prepared for the purpose of another assessment of your sexual risk towards your daughter and son. At that time, you were denying the offending against GM. The writer of that report concluded that as at November 2011, there was no indication that you were sexually aroused to females under the age of 13 years, and you did not hold justifications for sexual conduct towards children. A conclusion that there was 'no indication' seems surprising given the report writer was aware of the two instances of sexual offending alleged against you in respect of females aged four and eight.
87Despite that awareness, the report writer did not initially have your full criminal history and, without that, assessed you on an assessment tool that did not require that full history[24] and found that you presented as a moderate-high risk of future sexual offending.
[24] RSVP.
88An addendum to that report was provided in February 2012, apparently including further detail about your previous court appearances. Using the original assessment tool, the report writer concluded that there was no past or recent evidence of a risk factor of chronicity of sexual violence, nor was there any escalation in terms of sexual violence from your offences in 1997 to the offence in 2011 against GM.
89The report writer confirmed her assessment of you as a moderate-high risk for sexual reoffending, with the greatest risk to potential female victims (both related and unrelated). She could not rule out a risk against male children, including your son. With this risk assessment, the report writer recommended you continue to have supervised access to your children and, fortunately, noted that unsupervised access should not be supported.
90
Of course, unknown to the report writer and the sentencing judge, at that date, you had been offending against Molly for a number of years and were doing so in 2011 even as you were being assessed as to your sexual risk. Clearly, there was both escalation and chronicity in sexual violence from 1997 to the commission by you of multiple acts of sexual violence against your daughter over a 12-month period in 2010-2011 and a single offence against one
eight-year-old when the opportunity presented itself within that same 12-month period.
91As a result of this lack of information about the offending against Molly, you received a significant benefit in the type of sentence that was imposed for the offence against GM compared to the sentence that might otherwise have been imposed had the real situation been known to the experts and to the sentencing judge. Of course, I am not resentencing you for the offending against GM.
92The fourth report was prepared in 2012. That report indicated that you had no history of mental illness or depression. The report writer agreed with the risk assessment that I have just referred to.
93The sentencing judge in 2012 noted concerns for your rehabilitation because of that risk assessment and because you had provided no explanation for your offending against GM. She noted there was no allegation of inappropriate sexual contact with either of your children, which, I repeat, was far from the truth.
94Similar to the situation with the offending against GM, there has been no explanation forthcoming from you about your offending against Molly. When asked by Dr Rodrigo, you acknowledged the charges and described them as serious but provided no details. You could not explain why you behaved in that way but wondered whether the stress you continued to experience after the death of your infant son in 2009 may have contributed. Unfortunately, Dr Rodrigo did not explore with you your full criminal history in order to investigate why you offended against Molly. You denied having ongoing sexual fantasies about or urges for prepubescent children. You told Dr Rodrigo you did not believe you had a paedophilic disorder and were not happy to consider treatment for that.
95Dr Rodrigo said it was difficult to assess whether you currently meet the diagnostic threshold for paedophilic disorder due to your poor engagement in the assessment. He used an assessment tool[25] and “based on the information available” assessed you as having a nominal risk category of moderate-high.
[25] STATIC-99.
96I expressed some concern at the last hearing as to whether the “information available” had included the charges of attempted incest when you were 12, dealt with when you were 16. Dr Rodrigo said in his report that you initially denied previous offences “but when questioned directly about the offences mentioned in [your] priors, [you] acknowledged those offences but did not provide details”[26]. My concern arose because it seems that Dr Rodrigo was provided with the criminal record that was filed in this case as relevant prior convictions, being offending for which you were convicted before 2007, excluding appearances in the Children's Court, but he was not provided with the full criminal history which included the three attempted incest charges which were dealt with in 1997. Although Dr Rodrigo did have the sentencing remarks from 2012 for the offending against GM, which referred to this earlier incestuous offending, he stated at paragraph 51 that you had ”'engaged in two sexual offences against underage girls”. If the sexual offending when you were aged 12 is counted, together with the offending against GM and the offending against your daughter, that makes three engagements by you in sexual offending against underage girls at the time Dr Rodrigo was assessing you.
[26] Exhibit C, [33]
97While you did not engage in discussion about your 'previous offending', whatever that included, I had hoped that on the material that Dr Rodrigo did have, there might have been some discussion about your offending overall and an opinion as to your future risk based on all your sexual offence charges in order for me to properly evaluate the risk to the community in my different role as sentencing judge, where I do not use structured assessment tools.
98I recognise that Dr Rodrigo could have been called to give evidence and potentially address these issues, but given the long delay already in this case, I did not pursue that course. Further, Ms Cidoni's report provided some of the assistance that I sought.
99Ms Cidoni found you had “a high level of sexual disturbance with dysfunctional sexual behaviour and concerns noted”.[27] Unlike Dr Rodrigo, she made a clinical evaluation, which was that you had a clinical diagnosis of paedophilic disorder, which is defined as 'recurrent and intense sexual arousal fantasies, urges or behaviours involving sexual activity with a prepubescent child or children (generally age[d] 13 years or younger) over a period of at least six months'.[28] She did not undertake a structured risk assessment using tools.
[27] Exhibit 2, [58].
[28] Above, [79].
100Neither expert referred to the potential for ongoing risk arising from the sexual offending you have engaged in against three prepubescent female children related to you or to whom you had access, occurring over a period of almost 20 years.
101I recognise that there have been considerable gaps of time between the sexual offences you have committed against children, and – as is obvious – you were yourself a child for the initial offending. However, it is, in my view, clearly disturbing for a child with a disrupted childhood to commit serious sexual offences involving attempted penetration of a much younger child, who was considered to have developed insight into that offending as a teenager, but who then grew into a man who did not function well socially and who sexually abused two prepubescent girls who were accessible to him, with the serious prolonged penetrative abuse of his daughter the dreadful culmination of his offending pattern.
102I find that you do have a Paedophilic Disorder and that you require treatment for that as well as for your schizophrenia or schizoaffective disorder.
103Based on all the information to which I have referred, my own assessment is that on your release from prison, you will remain a risk of reoffending in respect of prepubescent girls to whom you have access in the community. That risk will be reduced if you continue treatment to ensure your mental health remains stable but also if you undergo specialised interventions focused on managing sexual behaviour and reducing the risk of harm to children. Without that specialised treatment, you will remain a risk to children with whom you come into contact on a regular enough basis to provide ready access. I accept that you will not pose a risk to your own children, who are now young adults, and further, you are unlikely to have any contact with them after your release from prison.
104I find that your prospects of rehabilitation are guarded. I find that the protection of the community is a paramount consideration in my sentencing of you, as well as by operation of the Sentencing Act.
ACCEPTANCE OF RESPONSIBILITY
105Because you exercised your right to plead not guilty, you do not get the benefits that arise from a plea of guilty.
106Your counsel submitted, however, that had the offer you made to plead guilty to the charges of which you have now been found guilty been accepted by the prosecution, the community would have been saved the time and cost of a trial. I note that you would not have spared your daughter from the burden of giving evidence, as her evidence was recorded before you made your offer.
107The prosecution concede that had your offer been accepted, a trial would not have been held, thereby providing a saving to the community.[29]
[29] Exhibit A, submissions dated 17 April 2023, [17].
108Your counsel also submitted that although you proceeded to trial when the offer was rejected, the offer shows an acceptance of responsibility for the particular offending the subject of the sentence I am imposing today.
109The prosecution submit that I should not accept this submission.[30]
[30] Above, [18].
110In deciding whether I do accept your counsel's submission, I have had regard to what you told Dr Rodrigo: that you felt remorseful about what was described as “the incident” and wanted to apologise to your daughter for what happened.[31]
[31] Exhibit C, [37].
111I have decided that in combination, your offer to plead guilty to the majority of the offending, although not to all of the most serious charges, and your expression of some remorse do show a level of acceptance for the offending for which I am sentencing you, and I do take this into account in deciding your sentence.
DELAY
112I said at the outset that I would take into account in your favour the delay that has occurred from the time the jury found you guilty to the sentence being imposed today, a delay which was no fault of yours. You have remained on remand for all of that time in the circumstances I have already described, with the uncertainty of what your fate would be.
113I take this significant delay into account in deciding the appropriate sentence.
OTHER MATTERS TO TAKE INTO ACCOUNT
114I have had regard to recent authorities dealing with sentencing on charges of incest and incest as a course of conduct such as Walsh,[32] Crawford,[33] Tullipan,[34] and Weir.[35] The prosecution also referred me to Dalgliesh.[36]
[32]DPP v Walsh [2018] VSCA 172.
[33]Crawford (a pseudonym) v R [2018] VSCA 113.
[34]DPP v Tullipan (a pseudonym) [2021] VSCA 191.
[35]Weir (a pseudonym) v R [2023] VSCA 113.
[36]DPP (Vic) v Dalgliesh [2017] VSCA 360, [75].
115In Walsh, the Court of Appeal made this statement:
“Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.
Incest involving a child is, moreover, a crime of violence. As the Sentencing Advisory Council has pointed out, sexual penetration of a child is inherently violent, whether or not it is accompanied by additional
non-sexual violence[37].”[37]Walsh, [1]-[2].
116With the course of conduct charges, I am confronted with a very large number of instances of the particular type of offence and must arrive at a single sentence for each which reflects the totality of the offending while operating within the limit of the maximum penalty applicable to a single instance of the particular offence.[38]
[38]Tullipan, [5].
117Cases involving sustained incest offending where the conduct was charged as individual offences rather than as a single course of conduct can be a source of assistance in determining the sentencing range for course of conduct incest charges. A sentence for a single instance of incest cannot, of course, be usefully compared to a sentence for a course of conduct charge. But, as the Court of Appeal said in Tullipan,[39] “precisely because the two are different, the former can provide some guidance by way of contrast regarding the available range for the latter”.
[39] Above, [50].
118In considering sentences imposed in other cases, it is to be observed that it is relatively rare to find examples of sentences for incest as a course of conduct after a trial. One such example is Boxer[40] where, on appeal, sentences of imprisonment for single instances of incest were imposed in the range of 8 ½ to 9 years.
[40] [2021] VSCA 300, [3].
119Crawford provides an example of sentences for incest as a course of conduct, where the offender pleaded guilty. The Court of Appeal said that:
“… what is a just and appropriate sentence for a course of conduct sexual offence will be informed by the nature of the sexual acts, the frequency and persistence of the acts, the age and other personal circumstances of the victim, and the impact of the offending on the victim[41].”
[41] [2018] VSCA 113, [67]
120In that case, a sentence of eight years' imprisonment for an incest course of conduct charge of mid-range seriousness for offending over almost two years by the accused of his 12-year-old stepdaughter was considered moderate.[42]
[42] Above, [63]
121Where the offending in question is of mid-range seriousness, the consideration of sentencing range must take into account the dramatic change in the sentencing parameters for incest following the High Court decision in Dalgliesh[43] as described in Grantley.[44] I take that into consideration here.
[43] [2016] VSCA 148
[44] [2018] VSCA 112, [20]-[24]
122In the most recent case of Weir, while it should be noted that, unlike the case before me, it is a case to which the standard sentence scheme applied, the Court of Appeal found the sentence of 10 years on the incest as a course of conduct charge following a plea of guilty was 'modest'.[45] That involved protracted and repeated penetration of the vagina and anus of the accused's 13-year-old daughter.[46]
[45] [2023] VSCA 113, [25]
[46] Above, [3], [25]
SEX OFFENDER REGISTRATION AND SERIOUS SEX OFFENDER STATUS
123Before I turn finally to the sentence, there are two further matters I must deal with. The first is that as a result of my sentence today, you become a registrable sex offender. You are already registered and subject to the Sex Offenders Registration Act as a result of the offence against GM but for a shorter period. As a result of the offending against your daughter, you will be required within seven days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to that Act for the rest of your life. Because you are appearing on a video link, I do not require you to sign the acknowledgment of receiving a form advising you of your reporting obligations. That form will be provided to you through Corrections Victoria in due course.
124The second matter I need to deal with is that you are to be sentenced as a serious sexual offender on Charge 4 if you receive a term of imprisonment on Charges 1 and 3, which will happen. Being sentenced as a serious sexual offender means the protection of the community from you is the principal purpose for which sentence is imposed despite any finding I make. That is a mandatory provision, and I have no discretion to remove its status as the principal purpose of this sentence. As I have found, it is the paramount consideration in my sentence on all charges.
125I have had regard to the limits the serious sex offender sentencing regime places on the application of the principle of totality[47] for Charge 4. This is already an overall difficult sentencing exercise in respect of the principle of totality, as the sentences to be imposed on Charges 3 and 4 must reflect the totality of the offending that constitutes the course of conduct.[48] In order to achieve the purpose of protection of the community, I have the power to impose a sentence on Charge 4 that is greater than is proportionate to that offence. However, the prosecution do not seek that, and I do not intend to do that, as an appropriate sentence can be imposed using usual sentencing principles as to proportionality and having regard to the recent authorities that I have canvassed.
[47] HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343
[48] Section 5(2F)(a) Sentencing Act.
126Turning finally to the sentence, the court must denounce your offending, and impose a sentence that is just in all the circumstances, and that reflects the community's abhorrence of sexual offending, particularly against a child, who was your own daughter, with the grave breach of trust, and damaging effect that has caused to her. Further, by my sentence, I must seek to deter you and other men from sexual offending against children.
127Mr Blackburn, you are convicted and sentenced as follows:
128On Charge 1 – indecent act with a child under 16 – 12 months' imprisonment;
129On Charge 3 – incest as a course of conduct – 11 years' imprisonment;
130On Charge 4 – indecent act with a child under 16 as a course of conduct – 4 years 6 months' imprisonment.
131You are to be sentenced as a serious sex offender on Charge 4, and I direct that this be entered on the record.
132Unless I direct otherwise, total cumulation is required for the sentence on Charge 4. I have decided to direct otherwise and allow for less than total cumulation because the principle of totality still appears to have a role to play despite the terms of s6E Sentencing Act.[49] For Charges 1 and 3, the principle of totality must be taken into consideration. However, there are two course of conduct charges here, and that fact, together with the serious sex offender regime where it applies to Charge 4, must be recognised in the individual sentences I impose and the total sentence overall.
[49] HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343
133The sentence on Charge 3 is the base sentence.
134I direct that two months of the sentence imposed on Charge 1 and two years of the sentence imposed on Charge 4 be served cumulatively on Charge 3 and on each other.
135That makes a total effective sentence of 13 years, two months' imprisonment.
136I direct that you serve a minimum of eight years before becoming eligible for parole. That is taking into account your mental health at this time.
137I declare that you have served 1,200 days in pre-sentence detention not including today. These will be deducted administratively from your sentence. That means over three years will be taken off the total.
138Mr Brown and Mr Turner, are there any other orders?
139COUNSEL: No, Your Honour.
140HER HONOUR: Thank you. Can I thank everyone for their assistance and patience during the extraordinary time it has taken us to get to this point. I will now adjourn the court, thank you, sine die.
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