Director of Public Prosecutions v Blackburn (a pseudonym)
[2014] VCC 1929
•11 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN BLACKBURN (A pseudonym) |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October 2014 | |
DATE OF SENTENCE: | 11 November 2014 | |
CASE MAY BE CITED AS: | DPP v Blackburn (A pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1929 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Nine charges of incest – defendant was step-father of victim and had sexual relationship with victim in her own home between time victim was 12 or 13 years of age and 18 years of age – defendant maintained a sexual relationship with victim’s mother throughout period of offending – victim bore defendant’s child – pleas of guilty – limited insight – some remorse – total effective sentence nine years and three months – non-parole period six years and three months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Burnside | Office of Public Prosecutions |
| For the Accused | Ms D Price | Victorian Legal Aid |
HER HONOUR:
1 Before commencing my sentencing remarks, I state that, in order to protect the identity of the victim, I will not refer to her by name and this Sentence will be published under a pseudonym of “Sean Blackburn”.
2 Sean Blackburn, you have pleaded guilty to nine charges of incest. Each of these charges carries a maximum penalty of 25 years’ imprisonment.
3 The circumstances of your offending are detailed in the summary of prosecution opening on the plea (Exhibit “A”). Essentially, for a period of approximately five years from 2005 to 2010 you committed various acts of both penile/vaginal penetration and penile/mouth penetration with your stepchild, between the time that she was 12 or 13 years old and 18 years old. Over that period of offending, you were aged 26 years to 31 years. The acts invariably took place when your victim’s mother was away, particularly when she was working nightshift. They took place in the context of repeated acts of a sexual nature which are uncharged acts.
4 When your victim was 16 years old, she became pregnant to you and you drove her to a clinic to try to procure an abortion. By this stage, your victim was five months pregnant, and, after learning that she would need permission from her mother before being able to have an abortion, she told her mother about the pregnancy. You told your victim not to reveal that you had driven her to the abortion clinic and to tell her mother that the father of the child she was carrying was a boy with whom she had been friendly, but with whom she had not had sexual relations. The victim’s mother persuaded her not to have an abortion and, ultimately, your victim, at the age of 17 years, gave birth to your child. The last act of incest (Charge 9) occurred one week after your victim came home from hospital following the birth. This involved you requesting the victim to perform oral sex upon you.
5 You were interviewed by police on 2 June 2013. You admitted that you had simultaneously been in a relationship with your victim and her mother. You claimed that the sexual activity had been instigated by your victim, but denied that she became pregnant at age 16, stating that you could not remember whether she was 17 or 18 when you started having sex with her and that she became pregnant at the age of 18. However, you also told police that you knew that your victim was turning 21 at the end of the month during which you were interviewed. You stated that your victim, as the one who instigated the sexual activity, had told you that the two of you must hide the fact that it was happening. You told police that you had had sex with her “maybe two times a week”. As far as your victim’s age was concerned, you stated that you knew your rights and could not touch anybody under 12 or 13 years old.
6 You are presently aged 36 years, having been born on 13 April 1978. You come before the Court with no prior criminal history.
7 In a plea on your behalf, Ms Price told the Court that you were the second youngest of 13 children born on Aitutaki, an island which forms part of the Cook Islands. According to a report from Mr Cummins, forensic psychologist, (Exhibit “2”) you continued your schooling until the age of 17 after passing the equivalent of Year 11. You are bilingual in Cook Island Maori and English, but spoke only Cook Island Maori at home. Soon after finishing school, you moved to New Zealand, where a number of your siblings had already located. When you were approximately 19 years old you moved to Australia, where family members were also residing. You began a relationship with your victim’s mother when you were 22 or 23 years old. Your victim’s mother was quite some years older than you.
8 Ms Price drew to the Court’s attention that, in your record of interview, you had made an admission against interest that you believed it was appropriate to have a sexual relationship with a child once the child had turned 12 or 13 years, and claimed not to understand that having sexual relations with your de facto’s child was incest. She urged the Court to note that in Mr Cummins’ report you had been assessed as having intelligence in the low average range. She stated that you claimed to have difficulty with placing events chronologically. Ms Price stated that, in accordance with your record of interview, you instructed that you believed that the offending had commenced at the last residential address which you shared with your victim and her mother. She also urged the Court to note that you stated that you came to love your victim and referred to being “in a relationship” with her, as well as with her mother. It was put as a mitigatory factor that you had never forced your victim to have sexual relations with you, and Ms Price emphasised that the Victim Impact Statement reveals that the victim believed that she was in love with you.
9 Ms Price stated that you held a belief, as articulated in your record of interview, that, because your victim’s mother could not conceive, then she could not conceive either, and did not believe that she would become pregnant. Ms Price stated that you also instructed that you and your victim discussed her having an abortion and she asked you to drive her to the abortion clinic.
10 Ms Price further stated that you came to love the son whom your victim bore you. Ms Price said you instructed that you miss your son and love him.
11 Tendered as Exhibit “1” was a letter to the Court said to be written by you on 29 October 2014. This letter describes “the terrible crime” you have committed and how you are lost for words to express how you are feeling about that crime. You apologised for your “misconduct” and to your victim, her mother and to your victim’s son. You note that you have ruined her life and wish that you could turn the clock back, and apologised to your wider family as well. You say you are ashamed of yourself and “I was not thinking at the time what I was doing and guess that I was too selfish”. You state that you deserve whatever consequences the Court orders for you and asked forgiveness from the Court, your victim and her family, and wish them a happy life.
12 I queried your counsel whether you had written that letter yourself because it was well expressed, but it had been apparent when you were arraigned that you seemed to have difficulty understanding the question which asked for your occupation. It transpired that that letter had been written by your sister, who also provided a character reference, tendered as Exhibit “3”. She gave oral evidence that she had written the letter because you “can’t really understand English”. She claimed that the letter was based on what you had told her in the Cook Island Maori language, and that you are sorry for what you have done. She stated that within two or three months of ceasing to live with the victim and her mother, you had expressed the view that you had ruined your victim’s life because she had a baby very young and she was not able to carry on with her education. She stated, also, that you had said that you had “a perfect family and now you don’t have that family anymore” and miss your son, whom you love.
13 I have misgivings about the veracity of what was said by your sister as being, in effect, an expression of insight and empathy with your victim. My query concerning the authorship of the letter to the Court was raised by the sophistication of the language in it. It seemed to me that, in her oral evidence, your sister’s words of elaboration, that you had stated that you had ruined your victim’s life because she had had a baby very young and not been able to carry on with her education, were her simply repeating what she had heard read out in court a short time beforehand as consequences enunciated by the victim, herself, in her Victim Impact Statement. In this regard, I note that your sister has worked for the Department of Human Services and is familiar with courts, as she has been involved in supporting youthful offenders at court. Your sister conceded that, in fact, it was very common in the Cook Islands for a young woman to have a baby at the age of 16 or 17 years and not to be educated beyond that age, so she was unable to explain how you could be so in tune with these being adverse consequences for your victim. Moreover, her statement that you had said these things about the impact on your victim two or three months after you moved out from the victim’s home (on 31 March 2013) does not sit well with your denial of paternity in your record of interview on 2 June 2013.[1] It also does not sit well with the contents of the report from Mr Cummins who saw you and your sister on 3 September 2014. Mr Cummins stated that you were still having difficulty coming to terms with your offending behaviour as you regarded your victim as having consented to your actions. He described you as still displaying “some boundary issues and distorted thinking concerning issues regarding having sexual contact with females who are post-pubescent but under the legal age”. He expressed the opinion that you are “clearly still having difficulty developing comprehensive insight and victim empathy in relation to (your) stepdaughter and the fact that (you) are the father of her child”.[2] He stated that at that stage, only two months ago, you were at an early stage of the process of developing insight into your offending behaviour and would need assistance to develop a comprehensive understanding of the concept of victim empathy, as it applies to your step-daughter.
[1]Answer to Q104 in the record of interview
[2]Paragraph 25 of Mr Cummins’ report dated 12 September 2014 (Exhibit “2”)
14 Moreover, you gave a history to Mr Cummins that, around the time that you moved out from living with your victim and her mother, you told your victim’s mother that you were the father of your victim’s baby. This would appear to be incorrect. You told your victim’s mother that you and your victim had been sleeping together, but it was left to your victim’s mother to quiz the victim about whether you were the father of the baby.[3] This is consistent with your denial of paternity to police in your record of interview.
[3]Statement of victim’s mother to police dated 16 June 2013, paragraphs 17-20
15 You also told Mr Cummins that you left the family home because you “could no longer cope with a situation where (you) were simultaneously maintaining an ongoing sexual relationship with both (your victim’s mother and the victim).” I do not regard this statement as being a frank one. It is clear from your victim’s statement to police that you were very controlling of her and, as she became older, she became increasingly intolerant of this. She described how on 30 March 2013 she had been to a party and, as was often the case when she was out, you would text her and call her and try to get her to come home. On this occasion, she would not listen to you and you became angry, telling her that, if she drank alcohol, then you would tell her mother what you and she had been doing.
16 Your victim stated that, every time she went out, you would be telling her what she could or could not do, and would always threaten that, if she did not do what you stated, you would tell her mother about what had been going on between the two of you. You would tell your victim, that, then, her mother would throw her and the baby out on the street. When she came home from the party in the early hours of Sunday, 31 March 2013, you told her that you were going to tell her mother.[4]
[4]See statement of victim to police made on 2 June 2013, paragraphs 71-74
17 I am satisfied, beyond reasonable doubt, that you revealed your sexual offending with the victim to the victim’s mother in fulfilment of a threat which had been made to her over a long time in order to keep control over her and in a context where you realised that you could no longer control her.
18 There would appear to be some progression in your realisation and acknowledgment of your wrongdoing by the time that you saw Mr Cummins from the time that you participated in the record of interview with police. You, at least, acknowledged paternity of the baby (although DNA testing had confirmed this). By then, you were acknowledging that it was you, rather than your victim, who had initiated the sexual relationship, albeit that you continued to insist that your victim “consented”. I accept that you now have some remorse and regret about your offending but, as far as insight and victim empathy are concerned, you have a long way to go, and your letter to the court, and your sister’s evidence overstate your understanding of these matters which are crucial to your rehabilitation. I found it very disturbing that in endeavouring to describe your feelings about your offending, you sister stated that you had said that you had a perfect family and now do not have that family anymore and that you miss your son, whom you love. If that is true, you have a very perverted view of what family life is all about.
19 Mr Cummins commented that you had spoken of having “a vague knowledge concerning the existence of laws regarding the issue of consent and issues related to incest, although (you) indicated (you) ignored this information, believing that your victim was consenting.”[5] Mr Cummins referred to your answers to police questions, which seemed to indicate a view that it was unacceptable to have sexual contact with a female who was pre-pubescent, but acceptable to have sexual contact with a female who was post-pubescent and consenting.
[5]Paragraph 21 of Mr Cummins’s report op cit
20 Ignorance of the law can never be an excuse. Sometimes cultural background can explain such ignorance. However, in your case, there has been no evidence put before the Court that in the Cook Island Maori culture, it would have been acceptable for you to have had a sexual relationship with a child from the age of 12 or 13 years, or that it would have been acceptable to have a sexual relationship with a step-child. The fact of the matter is, that you had left the Cook Islands and gone to New Zealand at age 18 and had been living in Australia since the age of 19, and had been in a relationship with the victim’s mother, here in Australia since you were either 22 or 23 years of age. Although your English may not be perfect, it was sufficient for you to participate in a record of interview with police without an interpreter, and, since shortly after you arrived in Australia, you have been in regular employment, principally as a storeman, mixing with the general Australian community. In these circumstances, there is no material to explain why you would have held the view, as enunciated to police, that you considered it was legal to have a sexual relationship with a minor and, in particular, one who was your step-daughter.
21 It is of concern that you do not fully acknowledge your moral culpability in your consultation with Mr Cummins. Not only do you seem to suggest that there is some lesser responsibility because your victim “consented”, but you also seem to blame the victim’s mother, whom you claim had a gambling problem. You claimed that she would often lie to you about needing to work nightshift, as a disguise for her gambling.[6]
[6]Paragraph 19 of Mr Cummins’ report op cit
22 This seems to suggest that the absence of the mother was somehow a licence for you to engage in sexual relations with her daughter while she was away. However, it is apparent from the statement made to police by your victim’s mother, that you often would ask her whether she was going “to the pokies”, and, when she answered that she was not, because she did not have any money, you would give her $20 in order to go and gamble. Thus, it appears that you facilitated her absence so that you could have sex with your victim.[7]
[7]Statement of victim’s mother to police, paragraph 23
23 Mr Blackburn, the crimes you have committed are of a most serious and despicable nature. When your young victim was at the beginning of her sexual awakening and asked you questions about boys, because she liked a boy at school, you exploited the situation to use her for your own sexual purposes. The law gives special protection to children because they lack the emotional maturity and experience of life to understand the complexity, both physical and psychological, of what having sex means. They require the love, care and guidance of their parents to develop securely during adolescence. You distorted your victim’s unformed young mind to believing that she was in love with you in a most confusing and perverted fashion, whilst, at the same time, you were maintaining a sexual relationship with her mother. You, as her step-father, were someone from whom she was entitled to expect protection. You abused that trust in a most hypercritical and selfish way, and again and again, over the entirety of your victim’s adolescence, committed sexual offences against her in a grave breach of trust and abuse of your position of power over her.
24 Your counsel and your sister say you are a religious man, a devout member of the Latter Day Saints Church. It is difficult, indeed, to reconcile such despicable behaviour with any religious morality, and it is an aggravating feature of your offending that you regularly threatened to tell your victim’s mother about what you were doing if she did not submit to your controlling measures on her social life. It is a further aggravating factor that you used no contraception at all, so that your victim became pregnant to you when she was only 16 years of age, and gave birth to your child at 17 years of age.
25 All of your offending took place in the victim’s own home, which should have been her safe haven. You led a life which was a lie, by pretending to be a father figure to her, and compelled her to live a life as a lie also. Indeed, her mother thought it was “really nice” that your victim named her son after you. It is a Maori tradition that a boy be named after his grandfather even though you were, so she thought, his step-grandfather.[8] Little did she know! Your victim was, in effect, in sexual competition with her own mother. From the onset of puberty, the joy of growing up and discovering what life as a maturing young woman should be about, and sharing adolescent confidences as so often happens with a mother, was destroyed by you. That crucial period of her adolescence, and the bond that can take place between a mother and daughter during that time, was taken away from your victim and her mother. Her education and the carefree experience of a teenage life were taken away from your victim, who had to finish school and look after a baby, pretending that it was fathered by a boy with whom she never even had a sexual relationship.
[8]Statement of victim’s mother to police, paragraph 15
26 The Victim Impact Statement made by your victim, on 29 October 2014 (Exhibit “B”), is powerful testimony as to the devastating psychological impact that your selfish and perverted offending had upon her. She speaks of being unable to go out and enjoy herself with friends, or to form a romantic relationship with boys her own age, because you would constantly hound her by telephoning her or texting her and verbally abusing her. She speaks of her grief at having a baby at such a young age and not being able to continue with her studies and prepare for a meaningful career. She speaks, too, of the damaging impact of her and her mother never really having a daughter/mother relationship over the entirety of the time of your offending and the guilt that she felt in betraying her mother. She spoke of how having a baby when she was so young and having her education brought to an end, together with your controlling attitude, caused her to feel depressed, lack motivation and feel useless, such that she experienced suicidal thoughts, but did not act upon them because of the guilt she felt about the prospect of leaving the baby without a mother. She describes the deep hurt and anger which you have caused her and how seeing you in public brought on anxiety attacks. She speaks of how she felt overwhelmed by the stress which built up as the committal date approached, and how frightened she felt about the prospect of having to give evidence about what had happened. Fortunately, she has been assisted by ongoing counselling which has enabled her to build a bond with her mother, as well as to form a relationship with a young man. She expresses gratitude for the support that she has received to help her move on from crimes that were able to break her apart. It is a testament to her strength of character and no thanks to you that she has been able to embark upon this process of emotional healing.
27 The sentiments expressed by your victim are the foreseeable and understandable damaging consequences of your appalling offending. Let you be in no doubt, Mr Blackburn, that your young victim could never consent to sex with you, as a matter of law, and can never be blamed for what occurred between the two of you. You were the adult. You were the one in a position of trust and power. You should feel deeply, deeply ashamed of using and abusing your young victim year after year in her own home. In sentencing for such offending this Court must denounce your conduct and place emphasis upon general deterrence and just punishment. There must also be some emphasis upon specific deterrence because of the repeated nature of your offending over such a long time, although I note that there is no suggestion that you have offended against other victims, and Mr Cummins describes your offending as having been situationally motivated and opportunistic, and expresses the view that you have now learned your lesson. He states that you have a low to moderate risk of reoffending and this should be reduced if you undergo the Sex Offender Treatment Program which he describes as imperative in your case.
28 In relation to the circumstances of your offending itself, there really is no mitigatory material. There is no doubt that the offending is of a grave nature and that the only appropriate sentence is a substantial term of imprisonment. I accept your counsel’s submission that, although bad enough, your offending did not contain a number of aggravating features, which one sometimes sees in cases of incest, such as humiliating and degrading treatment or use of the victim for child pornography purposes. However, the fact that your victim bore your child and created a confused and shameful family situation is a serious aggravating factor. I share Mr Cummins’ view that it is imperative that you undertake a Sex Offender Treatment Program. Apart from the pregnancy, the other aggravating features of your offending are the diversity of your sexual acts against the complainant, the escalation in offending (as noted by Mr Cummins), the length of offending (over five years), and the grave breach of trust and abuse of power. All of these features justify the substantial custodial sentence which I have indicated I consider to be warranted.
29 In your favour, I take into account that you have pleaded guilty. By September last year you had indicated an intention to plead guilty to the offences which took place at the last address where you had lived with the victim and her mother, since November 2007 onwards. There was apparently a period following September 2013 when you had no legal representation. Ultimately, by August 2014, you had resolved to plead guilty to the nine charges, upon which you were formally arraigned on 8 August 2014. By reason of your pleas of guilty, you are entitled to a discount on the sentence which otherwise would have been given to you. You have saved the State the cost of a trial, as well your victim the trauma of giving evidence. There is a significant utilitarian value to your pleas and some remorse, albeit that I have reservations about the extent of such remorse. Your counsel perhaps aptly described your insight into your offending, remorse and victim empathy as being in a developing stage.
30 Also in your favour is the fact that you do have a significant body of family support. Your sister gave character evidence that you were a loving, caring, hardworking, family orientated and respectful person. There were no other character witnesses, but there were approximately 30 or more people of Maori origin in court to support you. They apparently represent a significant proportion of the community of the Latter Day Saints Church which you attend (your counsel having indicated that 40 of the 60 members of that church are members of your family). Further, you have a very good record of stable employment as a storeman, with five years at one employer, one year at another employer, and eight years at your most recent employer. It is also of relevance that you have no prior convictions and no matters pending.
31 To your credit, you have no history of alcohol or drug abuse and Mr Cummins reports that you do not suffer from any psychiatric or psychological disorders or symptoms which would impede your rehabilitation. He states that you do not have a Personality Disorder, but your behaviour meets the diagnostic criteria for hebephilia, being a sexual attraction to a person who is post-pubescent, but under the legal age of consent. I find it difficult to assess your prospects of rehabilitation. That fact that there are no other victims is in your favour, but I have expressed my concern about your lack of comprehensive insight into your offending and victim empathy which are crucial to the process of rehabilitation. I note that Mr Cummins considers that your current risk of reoffending is low to moderate, but this should be reduced as a result of you participating in a Sex Offender Treatment Program.; You are apparently agreeable to this and accept it as inevitable that you will be required to serve a term of imprisonment.
32 In sentencing you, it is apparent that you face only nine charges of incest in the context of a host of uncharged acts which took place over the period of offending. These uncharged acts were said by the prosecutor to provide context for the sentencing process, in that it cannot be said that they were nine isolated acts of offending. I treat them in that sense for the purposes of sentencing you.
33 In sentencing you, I must take into account the principle of totality. I do so by allowing some cumulation, so that the overall sentence is a just and not crushing one.
34 As I intend to impose a term of imprisonment on Charges 1 and 2, s16(1) of the Sentencing Act 1991 states that concurrency should apply unless otherwise directed, and I do so direct in the circumstances of this case as they are discreet and serious episodes of offending. Moreover, by reason of the imposition of sentences of imprisonment on Charges 1 and 2, you fall to be sentenced, pursuant to s6B of the Sentencing Act, as a serious sexual offender on Charges 3, 4, 5, 6, 7, 8 and 9. This means that, pursuant to s6D of the Sentencing Act, I must regard the protection of the community from you as the principal purpose for which the sentences imposed on Charges 3 to 9 are imposed. It has not been submitted by the prosecution that I need to impose a disproportionate sentence in order to achieve that purpose. I do not consider that a disproportionate sentence is warranted.
35 Section 6E of the Sentencing Act states that every term of imprisonment imposed on a serious offender for a relevant offence must be served cumulatively upon other sentences of imprisonment imposed at the same time. However, I have already indicated that, although I consider some cumulation appropriate, it would be inappropriate to totally cumulate the sentences, otherwise the total effective sentence would be a crushing one.
36 Mr Blackburn, would you stand up please.
37 On Charge 1, incest, you are convicted and sentenced to be imprisoned for a period of four years.
38 On Charge 2, incest, you are convicted and sentenced to be imprisoned for a period of four years.
39 On Charge 3, incest, you are convicted and sentenced to be imprisoned for a period of four years.
40 On Charge 4, incest, you are convicted and sentenced to be imprisoned for a period of four years.
41 On Charge 5, incest, you are convicted and sentenced to be imprisoned for a period of four years.
42 On Charge 6, incest, you are convicted and sentenced to be imprisoned for a period of four years.
43 On Charge 7, incest, resulting in your victim becoming pregnant, you are convicted and sentenced to be imprisoned for a period of five years and three months.
44 On Charge 8, incest, you are convicted and sentenced to be imprisoned for a period of four years.
45 On Charge 9, incest, you are convicted and sentenced to be imprisoned for a period of four years.
46 The base sentence is the term of imprisonment of five years and three months imposed on Charge 7.
47 I direct that six months of each of the terms of imprisonment imposed on Charges 1, 2, 3, 4, 5, 6, 8 and 9 be served cumulatively upon the base sentence and upon each other.
48 The total effective sentence is, thus, nine years and three months’ imprisonment. I direct that you serve a period of six years and three months’ imprisonment before becoming eligible for parole.
49 I declare that a period of pre-sentence detention of 13 days be reckoned as time already served under the sentence imposed this day.
50 Pursuant to s6F of the Sentencing Act, I cause to be entered in the records of the Court that in respect of Charges 3, 4, 5, 6, 7, 8 and 9, you have been sentenced as a serious offender.
51 Pursuant to the provisions of the Sex Offenders Registration Act 2004, you are a registrable offender and will be obliged to comply with the reporting conditions under that legislation for the rest of your life.
52 Mr Blackburn, I will have my Associate hand to you a document which sets out your obligations under that legislation. Would you please sign where indicated to acknowledge receipt of that document.
53 Pursuant to S6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 12 years’ imprisonment with a non-parole period of nine years.
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