Director of Public Prosecutions v Blackburn (a pseudonym)
[2015] VCC 1902
•27 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01155
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WARWICK BLACKBURN (A PSEUDONYM) |
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JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 November 2015 | |
DATE OF SENTENCE: | 27 November 2015 | |
CASE MAY BE CITED AS: | DPP v Blackburn (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1902 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Dr N. Rogers SC | Office of Public Prosecutions |
| For the Offender | Mr P. Kilduff | Stary Norton Halphen |
HIS HONOUR:
1 Warwick Blackburn[1], you have pleaded guilty to one charge of maintaining a sexual relationship with a child under 16 years, one charge of persistent sexual abuse of a child under 16 years, six charges of incest, three charges of indecent act with or in the presence of a child under 16 years, two charges of production of child pornography and one charge of possession of child pornography.
[1]A Pseudonym
2 The maximum penalties for these offences are as follows:
· Maintaining a sexual relationship with a child under 16 years – 25 years imprisonment;
· Persistent sexual abuse of a child under 16 years – 25 years imprisonment;
· Incest – 25 years imprisonment;
· Indecent act with or in the presence of a child under 16 years – 10 years imprisonment;
· Production of child pornography – 10 years imprisonment; and
· Possession of child pornography – 5 years imprisonment.
3 I have heard a summary of the offending. It is not my intention to repeat the whole summary. It is Exhibit A in this proceeding.
4 Briefly, you were born in Russia in 1974 and migrated to Australia with your family in 1991. In 1996, you returned to Russia for a short time. You then returned to Australia with a woman whom you married in Sydney, in January 1998. Shortly thereafter you both moved to Melbourne. Your son was born in 1999 and your daughter in 2005. You were socially active within the Russian immigrant community, befriending other families with young children.
5 The relationship with your wife broke down and you separated in January 2010.
6 In 2003, Billy Kerry[2], the father of the victim Nicola Kerry[3], was a close friend of yours. In his statement he said you were, “Always just really good with children. Always playing and being nice to them.” He also said that you knew all the parents of these kids, so you were trusted.
[2]A Pseudonym
[3]A Pseudonym
7 Mr Kerry had separated from his wife and Nicola resided with him. You helped him by offering him some work as a driver. Because Nicola was a friend with your children, she would often spend time at your house. There were occasions when you provided Mr Kerry with work and Nicola went to your home when, unbeknown to him, your children were not present.
8 You commenced offending in 2003 or 2004 when Nicola was seven or eight years old and continued until mid-2012 when Nicola was 15 years old. Nicola recalls that on a day when her father was away from home working for you, she took a phone call from someone purporting to be a police officer suggesting that her father was in serious trouble. She saw you out the front of her house and took the phone to you. She went back inside and you later told her that you could help get her father out of trouble. You said that she had to see you when you required and that she should never refuse to do whatever you needed her to do. Nicola agreed because she believed that what she was doing with you was helping her father stay out of jail. In this way you preyed upon Nicola’s innocence and manipulated her into your world of abuse.
9 The first charge on the indictment relates to 30 occasions over an eight or nine year period when you sexually penetrated Nicola. Most frequently, you would make Nicola hold your penis and then suck your penis. You frequently ejaculated in her mouth or on her face. On two of these occasions you put one of your fingers in her vagina. Six of the 30 occasions involved anal penetration and on one of these occasions you rubbed the outside and inside of her vagina. You filmed your offending on 26 occasions. On at least two of the filmed occasions, Nicola seems to be objecting to the sexual behaviour and is seen to be whimpering while you offend against her.
10 Nicola has made a victim impact statement detailing the harm she has suffered as a result of your criminal behaviour. In the opening she says this:
11 "For me over the years it has been the hardest to come to terms with the fact that something seriously wrong has happened to me. I struggle still to put into words how I feel. Because you’ll never understand until you have been in this situation, when dark secrets eat away your sanity. I found myself feeling trapped and alone, wanting to escape, but it’s never possible to escape it. My head just replays every horrible memory over and over. When I think about it, it hurts just as much as when I was younger.”
12 A little later in her statement, she says this:
13 “Because it changes your whole life, your outlook on life on people, you experience firsthand how cruel someone can be, how influential, how manipulative. I was tricked, betrayed and abused. I had lost my innocence.”
14 Nicola’s sister and father have also provided statements on how they have been affected by your offending. Included in her father’s statement is this comment: “I will never be able to forgive myself that I did not protect my child from this situation.” I feel obliged to say that there is no reason why he or any other parent or sibling of a victim in this case, should regard himself or herself as responsible in any way for what you did. You represented yourself as a trustworthy, reliable and decent man. No one had reason to believe you were anything other than what you represented yourself to be. No one had any reason to believe you were a person who was capable of such terrible abuse of children.
15 Charges 2 to 4 on the indictment relate to your offending against Lola Clarkson[4]. Lola’s mother, met your wife in 2007. Your wife was working as a hairdresser from your home and Lola’s mother became one of her clients. When she attended an appointment she would bring her children, Dale[5] and Lola. There were times when you would take the children to play with your children.
[4]A Pseudonym
[5]A Pseudonym
16 On three occasions between late 2007 and late 2008, you wilfully committed an indecent act with or in the presence of Lola Clarkson. She was seven or eight years old at the time.
17 The first offence occurred when you were alone in the computer room with Lola. She was playing on the computer when pop-up advertisements for pornography related websites appeared on the screen. You berated Lola and accused her of downloading pornography and viruses onto the computer. You told her that the only way she could fix the computer was to watch the pornographic videos. In these circumstances, you forced her to watch a pornographic movie depicting naked girls. A few weeks later you took Lola back to the computer room. You told her that she had wrecked your expensive computer and that it could only be fixed if she watched pornographic movies from start to finish. You threatened to tell her mother that she had put a virus on the computer and that she would have to pay for it. You forced Lola to watch movies including sexual activity between adult males and children. You stood behind her, took her hand and made her stroke your exposed penis. When you said that she should suck your penis she said, “no” and started crying. You told her to stop crying and you led her to the toilet. You placed a digital camera in the toilet and filmed her urinating. You again threatened to tell her mother that she had put viruses and pornography on the computer. In 2010 or 2011 you saw Lola and told her, “I still remember. I’m going to tell your mum about the computer.”
18 The fifth charge relates to your abuse of Sera Donalds[6].
[6]A Pseudonym
19 Sera was living with her mother in Melbourne when you met them both at a party in 2008. Sera was then five years old. In 2009, she started attending a Russian language school and became friends with your daughter. You became friends with Sera’s mother and often helped her by collecting Sera from the Russian language school and taking her to your home to play with your daughter.
20 Sera’s mother made a statement in which she described you as,
21 "A father type figure for the kids. He would take the kids to McDonald’s, to the park, to bowling, to the movies, to shopping and swimming.”
22 In February 2011, you began a relationship with Lorelle Frank[7]. She was recently divorced with two young children, Katie[8] and Eden[9]. Sera’s mother said that after this occurred, "it made even more sense for Sera to go and visit because Lorelle had two daughters near the same age as Sera and they were Russian too and they played very well together also.”
[7]A Pseudonym
[8]A Pseudonym
[9]A Pseudonym
23 Sera’s mother was unaware that on some of the occasions when you took Sera to your home, you had made sure that no other children were present.
24 Between July 2009 and September 2014, you sexually penetrated Sera on ten occasions by putting your penis in her mouth. On nine of these occasions, you ejaculated in her mouth. On another occasion you penetrated Sera’s vagina with your penis. On a further occasion, you committed an indecent act by ejaculating onto her mouth. The offending started when Sera was seven or eight years old. On one occasion, you told her you would give her a lollipop if she did what you asked. Your offending extended over a five year period. You made recordings of your offending on seven occasions. As with Nicola, there are times when Sera remonstrates or argues with you. At times she is whimpering.
25
Sera has provided a victim impact statement. So has her mother
who opens her statement by saying this: “I felt dead and numb emotionally, in total shock.” A little later she says: “I felt extreme anger, hurt, immense fear for my daughter and her future and the impact this has had and will have on her future.” She also says this: “As a mother, this has created a lot of anxiety and I feel driven to protect my child. I feel this has altered my daughter’s view of the world and robbed her of her innocence from a very young age.”
26 Charges 6 to 11 are charges of incest and involve offending against Eden Frank[10] and Katie Frank[11].
[10]A Pseudonym
[11]A Pseudonym
27
I have already spoken of the relationship that developed between you and
Ms Frank in early 2011. In August 2011, you began living with her and her two daughters. Eden was seven years old at the time and Katie was five.
28 Sometime in 2011 you began showing Eden pornographic movies on your computer in the study of the house. In the period between 13 February 2011 and November 2014, you engaged in three separate acts of anal penetration against Eden. On one occasion, you promised her a pencil case if she would agree to your demands. Eden was required to ask your permission to use the computer. Whenever she made that request, you told her that she could only use the computer if you did, "the sex thing" together. She would refuse and you would not let her use the computer.
29 During the same time period you also engaged in three separate acts of anal penetration against Katie. You told her that if she told her mother, you would hit her.
30 Ms Frank has provided a victim impact statement in which she details the profound impact the offending has had on her and her daughters. Her depression has worsened, she has trouble sleeping, her eating habits have been upset and she cries suddenly and unexpectedly without any apparent reason. Her work has suffered and so, as a result, have her financial circumstances. She notes that both girls have been traumatised. “Katie often cries without a reason and complains of pain inside her upper body and her throat. She cannot sleep on her own.” Doctors are unsure how to help Katie. “Eden concerns me very much too. Both of them became so vulnerable that I cannot involve them in writing an impact statement. I asked my girls to write something to the court. Eden was weeping inconsolably for a very long time.”
31 Ms Frank blames herself for bringing you into the life of her children. I reiterate what I said earlier; she should not blame herself for your criminal behaviour. You represented yourself to her as something that you were not; namely a man who could be trusted around children. She had no reason to disbelieve your public persona.
32 Mr Bryan Wade[12], the father of Ms Frank and the grandfather of the two girls has also provided a victim impact statement. He says this: “Before the crime, my granddaughters were always happy, naïve, bright, confident, loved people around them, always smiled, always positive. After, they often look unhappy, nervous, sometimes crying, hysterical, sad, fearful without clear reason, seeking attention and stress themselves and people around them. It is so profoundly sad for me to see such changes in the girls.”
[12]A Pseudonym
33 Charges 12 and 13 relate to the video recordings you made of the offending against Nicola Kerry and Sera Donalds. Charge 14 relates to the possession by you of those video recordings.
34 Mr Blackburn, you have committed extremely serious criminal offences. The prosecution correctly describes your offending as corrupt and depraved conduct of the highest order. The following matters are particularly relevant to my assessment of the gravity of your offending.
· You presented yourself to other members of the Russian immigrant community as a friend; as a responsible and loving parent and later, a responsible and loving step parent. Other families trusted you. You abused that trust and the trust of these children in the most shocking way.
· Your offending was deliberate, planned and manipulative.
· There are five victims.
· The victims and their families have suffered significant harm.
· The victims were all children of tender years when you offended against them or commenced offending against them. They were vulnerable and you preyed upon their vulnerability in a most despicable way.
· The offending against Nicola and Sera involved sustained, repeated abuse of the gravest kind over a long period of time. It involved many occasions when you persisted in the offending even though the children were unhappy, reluctant and wanted the behaviour to cease. You engaged in unprotected sexual acts and continued with those acts until you ejaculated.
· With two of the victims, Nicola and Lola, you engaged in highly manipulative behaviour to help enforce their subjugation.
· When you offended against Eden and Katie, you were in the position of the children’s stepfather. The girls were entitled to your love and protection. They received the opposite. You betrayed the trust placed in you by Ms Frank and the offending against the children was also of the gravest kind involving acts of anal penetration.
35 Mr Blackburn, with offending this serious, general deterrence, denunciation and just punishment are all central and highly relevant sentencing considerations.
36 Because you will be sentenced to a term of imprisonment on Charge 1, you are to be sentenced on Charges 2 to 11 as a serious sexual offender. Accordingly, I direct that this be entered into the record of the Court. This also means that in determining your sentence, I must regard protection of the community as the paramount sentencing consideration.
37 The prosecution do not seek a disproportionate sentence and I do not intend to impose such a sentence. The various purposes of sentencing can be fully achieved without the imposition of such a sentence.
38 Section 6E of the Sentencing Act is relevant. This section requires the imprisonment terms for a relevant offence to be served cumulatively unless otherwise directed. There is a tension between this section and the principle of totality that is not easy to resolve. I have determined that to allow the full operation of that section would in this case, produce a disproportionate and crushing sentence. In considering your overall criminality, I still must ensure that there is no disproportion between the totality of the criminality and the total effective sentence imposed.
39 I am also required in sentencing you on Charges 12 and 13, to avoid any possibility of double punishment. In sentencing you on Charges 1 and 5, I have not treated the making of the videos as an aspect of those offences. The making of the videos are separate crimes and require, subject to the principle of totality, separate punishment.
40 I do not intend in these remarks, to go through your background. A report from Mr Jeffrey Cummins, forensic psychologist, sets that out clearly enough. Although growing up in Russia was not easy, your counsel quite properly conceded that there is nothing in your background that would explain or excuse your offending.
41 You have one relevant prior conviction. It relates to an appearance in the County Court in 2011 on appeal from the Magistrates' Court, for the offence of wilful and obscene exposure in public. Although it is a far less serious offence than those before me, it has relevance because it is an offence with a sexual connotation and it occurred within the period of some of the offences on the indictment.
42 You are entitled to an appropriate sentencing discount for your early guilty plea. Your plea is an acceptance of responsibility and has saved the victims from the trauma of giving evidence. In addition, the plea has saved the community the expense associated with a criminal trial. You will be given credit for all these matters.
43 I am also satisfied that you are now remorseful for your offending. When the police first attended your home, they were investigating the offending against Sera Donalds. Whilst you did not admit anything specific at that stage, you did say to the investigating police officer: “Well, I don’t know why I did it. Maybe I am a bad man. Maybe I am sick. I don’t know.”
44 When you were formally interviewed about the offending against Sera, you made some admissions but they were not fulsome. You certainly did not show that level of contrition that is obvious when someone is fully remorseful. After you were charged and prior to the preliminary hearing, you still did not acknowledge the extent of the offending against Nicola and Sera and you did not acknowledge your offending against the other three victims. There is force in the submission by the prosecutor that up until this stage in the process, your remorse was limited.
45 By the time of the preliminary hearing on 6 July 2015, you had accepted responsibility for the offending and indicated you would plead guilty to an appropriate indictment. You entered the plea of guilty on arraignment in the County Court on 10 July 2015.
46
When Mr Cummins spoke you to on 23 October 2015, you did express remorse. You acknowledged that it had taken some time for you to come to terms with the seriousness of your offending. You confirmed that you knew what you were doing was wrong and that you believed you were suffering from a, “sexual addiction to female children.” You told Mr Cummins that you needed to participate in a sex offender treatment program and that you would actively participate in such a program. Mr Cummins noted that you repeatedly and spontaneously made comments of relevance to feeling guilty and remorseful concerning your offending behaviour. In giving evidence,
Mr Cummins expanded on this last point stating that you spoke repeatedly about the wrongfulness of your behaviour; that you were ashamed at what you had done and that you regarded yourself as a paedophile who required treatment. He said that relative to other offenders “of this type” you seemed “refreshingly different” with spontaneous expressions of remorse that seemed to him to be genuine.
47 I am satisfied that there should be an appropriate discount on sentence in recognition of your remorse.
48 Mr Cummins conducted a risk assessment and determined the current risk of further offending was moderate to high. Given this assessment and the seriousness of your offending, I am extremely guarded about your prospects for rehabilitation.
49 Mr Blackburn, will you stand please. Mr Blackburn, you are convicted and sentenced as follows:
50 Charge 1 – 10 and ½ years imprisonment. This is a base sentence;
51 Charge 2 - 1 year imprisonment;
52 Charge 3 - 2 years imprisonment;
53 Charge 4 – 1 year imprisonment;
54 Charge 5 – 8 and ½ years imprisonment;
55 Charges 6 to 11 – 6 years imprisonment on each charge;
56 Charges 12 and 13 – 2 years imprisonment on each charge; and
57 Charge 14 – 1 year imprisonment.
58 I order three months of the sentence on Charge 3, 2 and ½ years of the sentence on Charge 5, six months of the sentences on Charges 6, 7, 8, 9, 10 and 11, and three months of the sentences on Charges 12 and 13 be served cumulatively upon each other and cumulatively upon the sentence on Charge 1. This makes a total effective sentence of 16 years and 9 months imprisonment.
59 I order you to serve a minimum term of 13 years and 9 months before you will be eligible for release on parole.
60 I declare that you have served 385 days pre-sentence detention.
61 Had you pleaded not guilty and been found guilty after trial, I would have imposed a total effective sentence of 22 years with a minimum of 19 years.
62 Your offending attracts the provisions of the Sex Offenders Registration Act 2004 and you will be required to comply with the reporting obligations of that Act for the remainder of your life. My associate will shortly provide you with a document that details your obligations.
63 Pursuant to s.464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth. If you fail to co-operate in the taking of the sample, the authorities will take a blood sample and may use reasonable force to obtain that sample. I make the order because of the seriousness of the offending and also because the making of the order is in the public interest.
64 I make the disposal order sought by the prosecution.
65 Are there any other matters?
66 MS ROGERS: No, Your Honour.
67 MR KILDUFF: No, Your Honour.
68 HIS HONOUR: You can remove the prisoner. Thank you. Yes, we will adjourn temporarily.
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