Director of Public Prosecutions v Blake (a pseudonym)
[2023] VCC 1102
•23 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL JURISDICTION | Revised |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT BLAKE (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 April 2023 to 26 April 2023 (Trial) | |
DATE OF SENTENCE: | 23 June 2023 | |
CASE MAY BE CITED AS: | DPP v Blake (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1102 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Sexual penetration child under 16, indecent act child under 16, conviction by jury in circumstances where accused acquitted of a number of charges, complainant very young at the of offending, offender in position of trust, delay in reporting offending, complete denials of offending, heavy reliance placed on good character at trial (and on plea), serious victim harm, totality, hardship, combination sentence of imprisonment followed by CCO not excluded, but not appropriate.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:Heathcote (a pseudonym) v The Queen [2014] VSCA 37, Director of Public Prosecutions v Fellows [2002] VSCA 58, R v Verdins [2007] VSCA 102, Director of Public Prosecutions v Tewksbury (a pseudonym) [2018] VSCA 38, Director of Public Prosecutions (Vic) v Conos [2021] VSCA 367, Markovic v The Queen [2010] 30 VR 589, Berry v The Queen [2019] VSCA 291, Lecornu v The Queen (2012) 36 VR 382, Granta v The Queen [2016] VSCA 190.
Sentence: TES 3 years 2 months imprisonment, non parole period of 1 year 8 months. PSD declared at 4 days. SORA registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Triandos (For Plea) | Office of Public Prosecutions |
| Ms L. Altoon (For Sentence) | ||
| For the Accused | Ms E. McKinnon | Furstenberg Law |
HIS HONOUR:
INTRODUCTION
1By way of introduction, Robert Blake[1], you were tried before a jury on indictment with respect to three charges of sexual penetration of a child under 16 years and four charges of incident act with a child under 16. All charges related to your former sister-in-law Joyce Farmer[2].
[1] A pseudonym.
[2] A pseudonym.
2On 26 April 2023, after a trial lasting 10 days before me, you were found guilty by a jury of one charge of sexual penetration of a child under 16 years, that is Charge 6;[3] and one charge of indecent act with child under 16, Charge 7, that occurred in late 2013. At that time your victim was nine or 10 years old. You were then in your mid-20s.
[3]With the circumstance of aggravation proven, that is the victim was under the age of 12 at the time of the offence.
3The maximum penalty for sexual penetration of a child under 16 years, and in this case the child was under 12, is 25 years' imprisonment. The maximum penalty for indecent act with child under the age of 16 is 10 years' imprisonment.
4You had no prior convictions of any kind when you offended in this serious way. You have no subsequent convictions either. You are entitled to have those facts taken into account in your favour when I pass sentence.
5The sheer gravity of offending like this against such a young child, involving as it does such a gross breach of trust of that child and her family, means that you must be sentenced to a term of imprisonment and in my view that necessarily involves the setting of a non-parole period. The duration and structure of that sentence is set out in the reasons that follow.
OFFENDING
Background
6You were born in 1987. You are now 35 and were aged between 26 and 27 at the time of the offending.
7Tracy Barker[4], born in 1990, is the sister of the victim Joyce Farmer (they have the same mother, but different fathers). Joyce was born in 2003.
[4] A pseudonym.
8You and Barker met in 2008 and a relationship began. In about March of 2010, you and Barker moved into a house in the Mornington Peninsula. This was close to Barker's parent's home.
9In or about March 2012 you and Barker purchased a house in the Mornington Peninsula. Joyce often visited and stayed overnight.
Relationship with victim
10The evidence before the jury discloses that Joyce saw you as big brother figure. You were fun to be around. She adored you. She described her affection for you to friends and family. She trusted you and her family trusted you. I deal with this feature of your relationship and the way it was abused by you later in my reasons.
Circumstances of offending
Allegations
11As I alluded to earlier in my reasons, there were a number of other allegations similar in nature to the ones I am about to describe, alleged against you on the trial indictment. You were acquitted on Charges 1 to 5 inclusive, encompassing offending alleged between 2011 and 2012. You will receive the full benefit of those acquittals. The essential facts that underpin those allegations will not be used against you in this sentencing exercise. I cannot and do not take them into account as context or in any other way. That is not to say that there may be other events occurring between 2011 and the proven offending in 2013 that I have regard to, but I stress you will not be sentenced in a way that suggests that the offending alleged in Charges 1 to 5 inclusive actually occurred when a jury was not satisfied that they did.
Proven offending
12Joyce Farmer recalls the incident I am to sentence you for as occurring when she lived interstate and flew to Melbourne by herself. She was between nine and 10 years of age at this time. Daisy Farmer,[5] her mother, recalls Joyce flew back to Melbourne a week earlier, in October 2013, from interstate and stayed with you and your then wife Ms Barker between 20 January 2014 and around 28 January 2014.
[5]A pseudonym.
13Joyce recalls being in the front bedroom of your house and being awoken by noisy boys outside. She went to the room where you and Barker were.
14You went back to her room with her and looked outside and you said, 'I will stay here with you'. You got into the bed near the wall and Joyce got in afterwards.
15You put your hands down her pants and rubbed your fingers up, around and in her vagina. This constitutes Charge 6, sexual penetration of a child under 16.
16You squeezed her breasts and nipples, which were developing. This constitutes Charge 7, indecent act with a child under 16.
17When the boys left outside you left as well.
Complaint
18In early 2019 Joyce was on a call with a friend Alice Young[6]. She told her that her brother-in-law had touched her on her body, chest and legs. She alleged it happened a number of times, sometimes when she was alone with you and sometimes when Barker was at home as well. Joyce informed her parents that things had happened in about February 2019.
[6] A pseudonym.
19I repeat what I said moments ago: I am sentencing you for the discrete offending identified in Charges 6 and 7 and not for other unspecified or unproven offending.
20In July 2019 Joyce visited Barker and her new partner. She gave each of them a letter. She told Barker about the fact you had touched her inappropriately. She told Barker of one occasion at your house when she was sleeping in the front room and heard noises. You came to reassure her and stayed for a while, but what you did 'was not okay'. She provided no further details.
Arrest and interview
21Police arrested you on 10 September 2019. You were interviewed by police and during that interview you said:
(a) Joyce was four or five when you first met;
(b) You played together with Joyce;
(c) You sometimes looked after Joyce;
(d) To reassure her, you lay in bed and cuddled her;
(e) You comforted Joyce by laying down beside her on the bed and falling asleep on one arm;
(f) You recall comforting Joyce but not on particular occasions;
(g) You think Joyce came to visit when they lived interstate;
(h) You do not recall an occasion where Joyce was frightened by people outside;
(i) You denied rubbing her breasts or vagina;
(j) You had a good relationship with Joyce; and
(k) You had no secrets with Joyce.
Case history
22After the above interview, you were charged in July of 2020. The matter proceeded to this court by the end of 2020. There were s.198B of the Criminal Procedure Act hearings in early 2021 and early 2022. The special hearing of Joyce Farmer took place in September 2022 and the trial commenced before me on 12 April 2023, concluding on 26 April 2023 with the convictions on Counts 6 and 7. You were bailed pending your plea.
23There were the usual delays in having this matter concluded occasioned by the disruption occasioned to the court by the COVID pandemic.
24You ran a trial. The complainant, her parents and her sister gave evidence and were cross examined. I accept, as did Mr Triandos, that the complainant was not particularly vigorously cross-examined during the special hearing. It was asserted that at no stage was the credit of the complainant attacked, nor was her reliability questioned, but rather the defence was that she had misconstrued or misremembered genuine acts of affection by you towards her as something much more sinister in hindsight.
25I accept that her version of events was challenged in a way that was no more than necessary to advance your defence. I make it clear you are not going to punished for running a trial, but likewise you are not afforded the substantial sentencing discounts that follow pleas of guilty, for instance, nor in my view are you entitled to rely on remorse as a matter that mitigates punishment.
26You gave evidence in your own defence and denied the offending in its totality. You still do. No less than 13 character witnesses gave evidence on your behalf in support of the proposition that you were not a person likely to commit offences of this kind and your denials ought to be more readily accepted by the jury. Examination of the role this character evidence played in your acquittals in five of the charges is a fairly arid exercise and one I am not going to really engage in.
27It is sufficient to say that the jury understood that evidence of your good character was not sufficient to change other proven facts, namely that you sexually violated Joyce in the way she describes in Charges 6 and 7. I will return to the issue of character later when dealing with general matters of principle, the need for specific deterrence and your prospects for reform.
28I will turn now to matters personal to you before addressing issues regarding the offending, that is to say its context, causes, gravity and the effect it had on your victim.
Matters personal to the you
Family background
29You are now 35 years of age. Your mother and your father are both in their 60s. They are reasonably healthy; however, in 2021 your mother had a heart condition and underwent a triple bypass. They are unquestionably supportive of you. They were a constant presence in the trial and in the plea.
Education
30You finished Year 11 at a Secondary College.
31During your schooling you struggled and received the help of an aide. You were ultimately diagnosed with dyslexia.
32You completed a Certificate in Refrigeration and Airconditioning Mechanics and Marine Mechanics.
Employment
33You have always been gainfully employed.
34You worked in an engineering related industry from 2012 and remained employed until your remand. You enjoy real stability in your vocation. I have had regard to the reference of your employer and the ongoing support he offers you.[7]
[7]Exhibit 7 on Plea - Reference dated 9 June 2023.
Relationships and family
35You were in a relationship for approximately two years before marrying Ms Barker in 2013. This was your first serious relationship. In March 2012 you had purchased a house together. You broke up in early 2016 and divorced in 2018.
36You have since been in a relationship with Kathleen Gray[8] for approximately five years. You have one child together, who is now 17 months old. Kathleen is pregnant with your second child and that child is due in January 2024 and I note that this pregnancy is likely to be a complicated one.[9]
[8] A pseudonym.
[9]Exhibit 5 on Plea – Report of Dr Gareth Phillips dated 14 June 2023.
Mental health
37After the breakdown of your relationship with Barker you experienced severe depressive symptoms and intense suicidal ideation which persisted for months. You received counselling around this period.
38After being charged for the matter before the court, you have struggled and felt overwhelmed and this culminated in depressed moods. Your moods further deteriorated following the guilty verdict.
39You reported to Dr Mathew Barth[10] of experiencing transient suicidal ideation. He is of the opinion that you meet the DSM-5TR criteria for a diagnosis of an adjustment disorder with depressed mood. Further, he is of the view you remain at risk of further deterioration in your mental state.
[10]Exhibit 3 on Plea – Report of Dr Matthew Barth dated 7 June 2023, which I should note here was typically of a high quality, realistic and insightful.
Character
40With the exception of this offending at the age of 26 or 27, you are a person of otherwise good character. You have never offended before or since. You have been a contributing and industrious member of society. You have been thought of very highly by many of those who know you.
41As I said earlier, a significant amount of character evidence was given at the trial. Further, written references have been provided by your employer, friend and Kathleen Gray which I have read and been impressed by. I turn now to the offending.
The offending
Context of the offending
42It is hard to divine a real motive for this serious but aberrant conduct given that you continue to deny the offending.
43I was taken Mr Barth's report at paragraph 51. Of relevance and in particular, I refer to his description as follows:
A comprehensive evaluation of Mr [Blake’s] sexual adjustment was difficult due to his reluctance to discuss such issues and his continued denial of his offending. During the interview with me, Mr [Blake] described his sexual orientation as being attracted to female age peers. However, when assessing the information from the prosecution opening and my own experience assessing and treating men who have committed similar offending, it is likely that Mr [Blake] viewed the complainant as being more sexually and emotionally mature than is accurate. Moreover, he clearly had a grossly distorted concept of appropriate "interpersonal boundaries" with the complainant.
44Your counsel agreed that as a functioning explanation it was hard to disagree with the wisdom, insight and accuracy of this paragraph.
Gravity of the offending
45Joyce was as young as nine or 10 at the time of that you put your hands down her pants, rubbed your fingers up, around and in her vagina and squeezed her breasts and nipples, which were developing. This occurred in a room at your house.
46The facts speak for themselves. She came to you for comfort and protection as a child would, having been disturbed by noises outside. Rather than comfort her, you violated her.
47Your offending represents a fundamental breach of trust, a significant factor in assessing the objective gravity of your offending and your level of culpability for it.[11]
[11]Heathcote (a pseudonym) v The Queen [2014] VSCA 37.
48The incident took place in the home in which your young victim was staying, a place where she was entitled to feel safe.[12] In particular, your offending occurred in her bedroom, on her bed, a location of particular vulnerability which further accentuates the gravity of your offending.
[12]Director of Public Prosecutions vFellows [2002] VSCA 58.
49I accept that there is an absence in your case of any grooming behaviour, force or coercion or additional violence or degradation which is sometimes associated with this offending of this kind. Likewise, there is an absence in this case of any behaviour on your part following your offending which would otherwise aggravate your it.[13]
[13]On balance I have declined to take the specific comments made by her at Q29 and Q221 of her VARE into account as the direction by you to her to not disclose the offending are allied so closely to the offending for which you were acquitted.
50It is nonetheless hard to ignore the fact that it was your relationship with Joyce that was exploited for your own sexual gratification. It requires no imagination at all to conceive of her confusion and internal conflict about what you did to her.
Sexual offending against children
51Any offence that violates the bodily integrity and personal dignity of another person by means of sexual intrusion is inherently serious. Acts like this though against children are especially depraved. This is reflected in the maximum penalties for sexual offences, which stretch to 25 years' imprisonment. The indecent act offences also carry a maximum penalty befitting their seriousness, namely 10 years.
52I was not taken to any cases said to be comparable or any statistical data that was said to assist me in this exercise. I have familiarised myself with current sentencing practices for offences of this kind and had regard, to the extent that it is useful to do so, to the bare sentencing statics available regarding offences for which you were found guilty.[14]
[14]SACStat offence summaries for indecent act with or in presence of child under 16 (repealed) 1 July 2016–30 June 2021, SACStat offence summaries for sexual penetration of child under 16 (repealed) 1 July 2016–30 June 2021).
53In formulating an appropriate sentence in your case, I have had regard to the only purposes for which a sentence must be imposed. Other sentencing decisions have made clear the importance of general deterrence and protection of the community in relation to sexual offences against children.[15]
[15] DPP v Tewksbury (a pseudonym) [2018] VSCA 38 at [82].
54I am satisfied in the circumstances of your case that the need for specific deterrence and the need for community protection is somewhat decreased. There is also a need for any sentence to facilitate your rehabilitation as appropriate, which will occur. Ultimately, however, your serious offending must be denounced on behalf of the community, and you must be punished for your crimes.
55I have considered the following when assessing issues such as gravity and culpability:
(a) Joyce was in your care and protection and as such this offending represents a gross breach of trust. This breach of a familial-like relationship is a significant factor in assessing the objective gravity of your offending and your level of culpability for it.
(b) The offending occurs in one episode on one night.
(c) There is no evidence of grooming.
(d) Your victim was especially young.
(e) There was a significant age difference between you and the victim and an commensurate power imbalance that follows that.
(f) Thankfully the mode of penetration was not one that would lead to a possibility of pregnancy or the imparting of an STD.
(g) There were no attempts to denigrate or otherwise coerce the victim, though I might add, given the position between you and her, there was no need for you to do so.
56My view is that your culpability can only be described as high.
Victim impact
57Joyce Farmer provided a powerful victim impact statement dated 14 June 2023.
58Your offending has shaped the way she sees and interacts with the world and the people around her. Joyce describes how her confidence, safety, her love for another person and her whole value were taken away from her. She simply cannot understand why someone whom she trusted, and was supposed to be her best friend, turned out to be a 'monster, a liar, a fraud'.
59Because of your crimes she feels anger, hurt, sadness and confusion. The offending has had a profound impact on her relationship with men, including her own father.
60She suffers from PTSD, anxiety and depression. She has required professional treatment.
61For close to half of her life, Mr Blake, she had had to deal with the aftermath of your offending. It is hard to overstate the damage you have done to her. It is an appalling legacy to leave her.
62I take into account the serious affect your behaviour had and continues to have on your victim.
Matters of sentencing principle
63In addition to those specific sentencing considerations I just articulated involving offences against children, particularly this child, the additional matters are of relevance as follows.
Delay
64The offending occurred in 2013 and it was reported in 2019.
65This matter has been delayed because the charges were filed in July 2020 and the matter was before the court during a disruptive period, that is the COVID pandemic.
66The matter was reported to police in August 2019 and you were interviewed by police on 10 September that same year. Charges were filed on 15 July 2020.
67It ought to be noted the fact that some time has passed since the sexual offending was committed against a child is irrelevant to the objective gravity and an offender's culpability given that these offences are often unlikely to be reported or detected for a substantial period of time.[16] And that was the case here. Joyce expressed concern that her parents would not believe her and it was not until she fully comprehended what you had done that she told her trusted friend.
[16] Director of Public Prosecutions (Vic) v Conos [2021] VSCA 367 at [64].
68I accept that you have suffered a degree of anguish awaiting determination of these charges once you were made aware of them. You have not reoffended either, which is impossible to ignore when considering issues such as community protection and prospects for reform.
Verdins[17]
[17]R v Verdins [2007] VSCA 102 (‘Verdins’).
69It is submitted further that your mental illness would likely deteriorate, and your experience of custody is likely to be considerably more onerous than that of a typical prisoner. Specifically, I was taken to these passage of Mr Barth's report at 29, 30 and 43, which I found helpful and I will repeat now:
The most salient features of Mr [Blake’s] mental status when I evaluated him were significant depressive symptoms. His mood was downcast throughout the interview with me and he reported feeling intense sadness, hopelessness and pessimism. He said that his sleep is significantly disturbed, he has a poor appetite, feels overwhelmed, experiences minimal pleasure in his daily life and is lacking the requisite energy to function effectively. Mr [Blake] said that he experiences intense periods of depression when he thinks about his legal predicament and the gravity of his conviction, which leaves him feeling overwhelmed and unable to cope. He was particularly distressed at the prospect of being separated from Ms [Gray] and their son. Of concern, he reported ongoing suicidal ideation.
Mr [Blake’s] PAS result was consistent with his self-report and with my observations of him. His profile indicated significant depressive symptoms, social withdrawal and suicidal ideation. Following a detailed review of Mr [Blake’s] personal history, my observations of him during the assessment process and analysing his results to objective psychological testing I am of the opinion that he meets DSM-5-TR criteria for a diagnosis of an "Adjustment Disorder – with Depressed Mood". He remains at risk of further deterioration in his mental state.
Mr [Blake’s] emotional reaction to his legal matter has been intense. Should a custodial sentence be imposed, [he] is likely to be a vulnerable prisoner, particularly when considering his limited coping skills for his depressive symptoms. To that extent, [he] is likely to find the process of imprisonment to be quite arduous. Mr [Blake] would be at risk of further deterioration in his moods and it would be very important for appropriate supports to be put in place.
70In light of the evidence of your mental illness at the time of sentence, it is submitted that the Verdins principles apply in the limited way when it comes to limbs 5 and 6. That is to say:
(a) the condition ought to have bearing on the formulation of the sentence to be imposed, particularly having regard to the likely deterioration of your illness in custody, your need for ongoing treatment and the limited availability of psychological treatment in prison;
(b) your condition at the time of sentencing will mean that a sentence of imprisonment will weigh more heavily upon you than on a person in normal health;
(c) there is a serious risk that imprisonment will have a significant adverse effect on your mental health. That too is a matter that ought to mitigate punishment; and, finally,
(d) once imprisoned, your mental health is likely to deteriorate, making your experience in prison more onerous that others would find it. The evidence and analysis of Mr Barth described above about factors such as significant depressive symptoms, social withdrawal and suicidal ideation with the real potential for a decline in your health make good this point.
Hardship
71In addition to what I have just said, you will no doubt find prison aversive and difficult. You have no criminal pedigree. One way in which you are said to be vulnerable of course is because of your poor mental health, which I have just dealt with under the cover of Verdins.
72The fact also remains you will experience real anguish about the fate of your family and young child during your incarceration.
73Your partner Ms Gray also faces the real prospect of giving birth to her second child without you. Mr Barth says at paragraphs 21 and 24 respectively as follows:
Mr [Blake’s] other main relationship has been with Ms [Kathleen Gray]. This relationship commenced in early 2019 and have a 16-month-old son [Roger].[18] Mr [Blake] described a very idealised view of the relationship was with Ms [Gray] and expressed his distress at the impact of his conviction on her and [Roger]. He told me that Ms [Gray] is currently pregnant with their second child [and] expressed his fear that "I won't be around to be the father I should be".
An assessment of Mr [Blake’s] current mental status indicated significant emotional distress. He reported the typical symptoms of depression which were readily observable during the interview. His current emotional distress represents the stress associated with his current legal predicament and the impact of his conviction on his future prospects, particularly with regard to the potential of being separated from Ms [Gray] and [Roger].
[18] A pseudonym.
74I consider these matters will add to the burden of imprisonment for you and commensurately they decrease the need to specifically deter you from further offending.[19]
[19]Markovic v The Queen [2010] 30 VR 589 at [20].
75Your absence from the birth of your second child constitutes a form of punishment as well.
Character
76With the exception of this offending at the age of 26 to 27 you are a person of otherwise good character.
77You have a solid education and work history. You have always been gainfully employed. You were described in the most glowing terms by those who gave evidence before the jury on your behalf. The jury verdict evidences the fact that you have not always behaved, though, in a trustworthy, kind and caring way towards others. Privately you behaved in a way that is very different from the public persona you present.
78A court must not have regard to an offender's prior good character in sentencing for a child sexual offence if it is satisfied that good character 'assisted' them in committing the offence. This limitation only applies when the sentencing court is actually able to make a finding of fact that the good character (or more often, the absence of prior convictions) was somehow 'of assistance' in the commission of the offence. Your relationship with the victim's sister and the access you had to the victim that way permitted the offending to occur. Your character did not per se assist you in the commission of the offence. You drew heavily on you character to deny all of the offending, which is different.
79I intend on giving your prior good character the weight it deserves when considering issues such as your capacity to reform, for instance.
Prospects for reform
80Turning now to those very prospects, Dr Barth concluded, having conducted the Static-99R, that you are a low risk of recidivism.
81Dr Barth also conducted the RSVP-V2 test and when evaluating the relevant factors opined that your overall risk of sexual recidivism is best understood as falling in the low-moderate risk category. He further states that, 'This risk could be reduced with the completion of a specialist sex-offender treatment program'.
82Mr Barth is of the opinion that ongoing treatment is essential in enhancing your rehabilitative prospects at paragraph 42 as follows:
When considering his continual denial, Mr [Blake] will require an extended period of time participating on treatment before he is likely to make any progress …
Sex offender treatment should focus on assisting Mr [Blake] to gain insight into the interpersonal and sexual factors which motivated his offending, enhancing victim empathy and psychoeducation regarding the normative sexual development of underage females. Detailed relapse prevention planning should also constitute a prominent focus of treatment.
Mr [Blake] requires treatment which addresses his depressive-related symptoms. He would benefit from such intervention and support throughout the duration of any time in custody.
83I conclude that you have strong prospects, noting your family support, your work history, the support of your friends, and those prospects will only be enhanced by further treatment both in and out of custody.
Totality
84The totality principle requires a court sentencing an offender for multiple offences to ensure the overall sentence imposed is a 'just and appropriate' measure of the total criminality involved and is, further, 'not excessive'.[20]
[20]Berry v The Queen [2019] VSCA 291 at [22] and [32].
85Further and relatedly, given the substantial overlap as between the offending conduct in the two charges as addressed above, care must be taken to avoid double punishment in the overall sentence imposed by the court.[21]
[21]Lecornu v The Queen (2012) 36 VR 382 at [12].
86But in this case I am sentencing you for two acts of sexual offending against a child under 16, in fact a child under 12, overlapping in the way I have described.
87Each sexual act in my view adds to overall harm, degradation and defilement of the victim, which in my view warrants a small degree of cumulation between those counts.[22]
[22]Director of Public Prosecutions v Granta [2016] VSCA 190.
Formulation of sentence
Availability or suitability of CCO
88Your counsel acknowledged that some period of imprisonment was the inevitable consequence for your offending. She submitted[23] that a community corrections order with a short-term of imprisonment is within range as an appropriate disposition. It was submitted that you can continue with offence specific treatment, that is the sex offender treatment program, as part of a CCO.
[23]Exhibit 1 on Plea – Defence Outline of Submissions on Plea dated 16 June 2023.
89The Crown's position was that a head sentence with a non-parole period was warranted. It was originally submitted that sexual penetration of a child under 16 committed in the circumstance of aggravation described is a Category 1 offence within the meaning of the Sentencing Act. The court therefore must impose a term of imprisonment without a CCO in accordance with s.5(2G).[24] At the time of your plea your counsel accepted that this was so.
[24]Noting that there are a (limited) number of exceptions to this position in the Sentencing Act1991.
90After the plea was adjourned pending sentence, it became clear that s.5(2G) did not in fact apply to the offending that you were convicted of, occurring as it did in 2013, meaning that there was no statutory prohibition to a combination sentence being imposed of the kind referred to in s.5(2G).
91In light of the above, your counsel maintained her submissions in relation to disposition which was outlined in her submissions for the plea dated 16 June 2023.[25]
[25]Exhibit 1 on Plea – Defence Outline of Submissions on Plea dated 16 June 2023.
92Notwithstanding that a combination sentence of the kind advocated for is available, the prosecution maintains its position that a sentence involving a non‑parole period is the only appropriate disposition in the circumstances. The parties were given an opportunity to address me further today and confirmed their position in that regard.
93A CCO imposed in addition to a term of imprisonment is the type of sentence that can add the flexibility of the CCO regime, because it allows a court to conclude, even for serious offending, that all purposes of sentencing might be achieved by a comparatively short period of incarceration followed by a longer CCO with conditions targeted to the offender's circumstances.
94The maximum term of imprisonment that I can impose in combination with a CCO is 12 months.[26] The maximum period I can impose for a CCO is five years.[27]
[26]Sentencing Act 1991 (Vic) s.44(1).
[27]Ibid s.38(1)(b).
95In my view, having balanced and weighed the necessary considerations, the relevant sentencing purposes cannot be properly served by the imposition of a combination sentence that is 12 months or less of imprisonment followed by a CCO.
96I share the view of the Crown that your criminality can only adequately be reflected by the imposition of term of imprisonment that has a non-parole period.
Head sentence and non-parole period appropriate
97In affixing an appropriate sentence for you and allowing a parole-eligibility component, I have had regard to the principle of parsimony; that is the requirement not to impose a sentence is more severe than that which is necessary to achieve the purposes for which the sentence is imposed.
98The purpose of parole is to provide for mitigation of punishment in favour of reform through conditional release where appropriate. A non-parole period is the minimum time I determine justice requires you must serve, having regard to all of the circumstances of the case. Due to the constellation of mitigatory factors in your case, I have concluded it is appropriate to allow for a meaningful and perhaps longer than usual parole component to your sentence. Accordingly, the non-parole period, that is the period of imprisonment to be served before which you become eligible for parole, will be a bit shorter than usual to appropriately take into account the number of mitigatory factors in this case and to facilitate your reintegration into the community.
Sentence to be imposed
99I come now, Mr Blake, to the portion of my sentencing remarks where I pass sentence on you.
100Having carefully considered, balanced and weighed all of the relevant sentencing considerations, I have decided to convict you on each charge and I sentence you as follows:
101On Charge 6, the sexual penetration of a child under 16, you are convicted and sentenced to three years' imprisonment.
102On Charge 7, indecent act with a child under 16, you are convicted and sentenced to eight months' imprisonment. Two months of that sentence will be served cumulatively on the sentence that I just imposed on Charge 6.
103This brings about a total effective sentence of three years and two months.
104I order you serve 20 months before being eligible for parole
105Pursuant to s.18 I declare - is it four days, counsel, PSD?
106
MS ALTOON: Not including today and if we include Monday, that would be
my - - -
107HIS HONOUR: So is the answer to my question four days?
108MS ALTOON: Yes.
109MS McKINNON: Yes. Yes, it is.
110HIS HONOUR: Pursuant to s.18 of the Sentencing Act I declare that a period of four days not including today has been served by way of pre-sentence detention and I order that this period be administratively deducted from your sentence.
SORA
111As a consequence of the verdict you have been convicted of one Class 1 offence, involving sexual penetration of child, and one Class 2 offence, indecent act with a child; accordingly you will be subject to the Sex Offenders Registration regime for life.[28]
[28]Sex Offenders Registration Act 2004 s.34(1)(c)(ii).
112Are there any matters arising, counsel?
113COUNSEL: No, Your Honour.
114HIS HONOUR: Ms McKinnon, would you like the link to be left open to have a brief discussion with your instructor and your client?
115MS McKINNON: Yes, I'd be grateful, thank you, Your Honour.
116HIS HONOUR: Madam Associate, would you be able to facilitate that. And thank you to your client's family and her partner, Ms McKinnon, and the victim and informant and the Witness Assistance Service. I acknowledge your presence and thank you. Thank you, too, Ms Altoon. I'll adjourn the court.
117MS McKINNON: Thank you, Your Honour. As the court pleases.
118MS ALTOON: Thank you, Your Honour.
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