Director of Public Prosecutions v Blencowe
[2022] VCC 997
•24 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BAIRNSDALE
CRIMINAL JURISDICTION
CR 22-00281
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KYLE BLENCOWE |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Bairnsdale |
DATE OF HEARING: | |
DATE OF SENTENCE: | 24 June 2022 |
CASE MAY BE CITED AS: | DPP v Blencowe |
MEDIUM NEUTRAL CITATION: | [2022] VCC 997 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Grant | Office of Public Prosecutions |
For the Accused | Ms L. Andrews | Daniel Taylor Lawyers |
HIS HONOUR:
1Kyle Blencowe, you have pleaded guilty to one charge of sexual penetration to a child under the age of 16 years and one charge of supply drug of dependence to a child. Each of those crimes carries a maximum penalty of 15 years' imprisonment.
2You are now 24 years of age, and were 21 years of age at the time of the offending. There has clearly been a significant delay in this matter being able to be resolved and brought on.
3I accept that your plea of guilty was at an early time, and I accept that it was accompanied by appropriate remorse. You must also get the utilitarian benefit of that plea of guilty, and I am very conscious of the fact that that plea was entered in the circumstances of Warboyes where the Court of Appeal has said that there must be proper credence given to the principles involved.
4You do have prior convictions and you have been in custody before, however those prior convictions are for drugs and driving and are only related to this matter insofar as drugs are perhaps concerned. You have no prior convictions for sexual offending.
5The circumstances of the offending are that you met the complainant, who was 15 years of age, in Paynesville when her and another young lady asked you for cannabis. It was a situation where the complainant and her friend were in fact already being supplied with cannabis by the complainant's mother, it was in those circumstances that you were approached.
6You indicated that you did have some cannabis and invited them back to your house in Slip Road in Paynesville, and cannabis was smoked. The week after that, you and the complainant engaged in sexual intercourse, that is penile and vaginal penetration. It is accepted by the Crown that at that time you reasonably believed that she was 16 or 17 years of age, as her friend had been asked by the complainant to lie to you about her true age. It is unclear as to whether or what time anyone actually told you that she was under the age of 16, but it seems pretty clear, giving you the benefit of the doubt, it must have been only within a month or so, of her achieving the age of 16.
7After that, you and complainant would regularly be at your premises and would regularly smoke cannabis. You had intercourse with her on a number of occasions during 2019, and I make it clear that this is a single offence only. It is not rolled-up or representative.
8In July of 2019, the mother of the complainant and Ms Smith began arguing about the relationship, and at that point in time the mother was blaming
Ms Smith for the complainant not returning back to her own home. She clearly was spending a lot of time with you. The mother of the complainant then evicted Ms Smith from the address.9In November of 2019, you were residing in Main Road in Paynesville and later that day, the complainant and her mother had an argument over her having contacted you. The mother confronted you and the Crown case was that at that point you were told that she was under the age of 16 years, and we are working on that basis.
10In November of 2019, you wrote a 'love letter' to her, which was given to her about a week later, and within that was also as I understand it, a small quantity of cannabis. That gives rise to the charge of supply drug of dependence to a child. It is a situation where clearly she was - cannabis was no novelty to her, in fact her mother would appear to have been giving it to you. In those circumstances, whilst it is a criminal offence, it is very much at the lower end of it.
11On an unknown date between November 2019 and 2 January 2020, the complainant attended at your address and unprotected sexual intercourse took place. She became pregnant as a result of that. That is the one charge of sexual penetration of a child under the age of 16.
12Around about 1 January 2020, the mother of the complainant confronted you and there was a - she verbally abused you and punched you in the face, and she says again informed you that the complainant was only 15 years of age. At that time, she was to turn, on my understanding of it, she was to turn 16 within less than three weeks. On 2 January, contact between the two of you ceased.
13On the 27 September 2020, the complainant gave birth to a son, named, and DNA has said that you are the father of that child. The timeframes involved indicate that the act of intercourse must have occurred prior to her sixteenth birthday.
14You were arrested by police, exercised your rights to make no comment and were ultimately then charged. As I have indicated you had an early plea of guilty and that is very much to your credit. You are now in custody for a period of time, and I understand you are undergoing that and will continue to undergo custody in Covid circumstances, which of course I take into account.
15The charge of sexual penetration with a child under the age of 16, is what is known as a standard sentence charge, where the standard sentence is six years. I am well aware of the decision and the matters set out in the Court of Appeal in the matter of Brown. I am also very much aware of the matters set out by Their Honours in the Court of Appeal, in the matter of Macpherson, sexual penetration of a child under the age of 16, to have a standard sentence is a very difficult proposition indeed.
16There are few charges which can vary over such distinct and different objective circumstances, not to say personal circumstances. In all I see of the situation here, which I will describe in a moment, I am prepared to accept that the act of sexual penetration, the one act here, occurred at the end of a significant relationship between you and the complainant.
17I accept that you have genuine feelings for her, there were no threats involved, there was no intimidation involved, there was no predatory action on your behalf. It was, I accept on the face of it, a relationship that was genuine and what went wrong, was that after you apparently realised that she was just under the age of 16, you continued to have intercourse on one occasion, and she became pregnant.
18It is a situation where, as I say, it has got to be at the lower end. Another probably three weeks or four weeks later, and it would not have even been a criminal offence. However, the difficulty that arises in this situation, is that the girl did become pregnant. I am well aware of the authorities that have been pointed out to me by the Crown, as to the significance of pregnancy in situations such as this.
19Your counsel during the course of her excellent plea said that she would have been asking for a different disposition as opposed to gaol, if the girl had not become pregnant. I think that is right. If she had not become pregnant, one, I daresay this would never have come to the attention of the authorities in any event, but it would have been a very different set of circumstances indeed.
20The offending still has to be regarded as serious. It does call for the application of general and specific deterrence as well as denunciation and appropriate punishment. It is conceded that gaol in this situation, is inevitable, and on my calculations you have now done 119 days.
21I then look to matters personal to you.
22I have read the victim impact statement that has been filed. I take into account the admissible matters contained within that. It has to be pointed out that in these circumstances, while I understand that obviously harm is presumed in these situations, I have got no trouble with that concept it seems pretty clear this relationship would never have even started, had not the complainant lied to you about her age and persisted with that lie, for something in the order of six months.
23But, to matters personal to you, as I have indicated I am aware of the decision of Macpherson and other matters. I do accept that you had genuine feelings for her. I accept that it was a period of time you actually stayed at her house without there being intervention by anybody else. The difference in age between you, is, on the face of it, five years, and it must be pointed out here that the psychological material tendered on your behalf, would indicate that you were of low intelligence and immature. Accordingly, whilst the chronological difference is some five years, I suspect that the actual mental age difference is much, much closer than that.
24As pointed out by your counsel, your offending did not involve a breach of trust or authority or anything along those lines, and you have acknowledged the effect of your offending on the complainant.
25Your parents separated when you were about three years of age, and you were raised by your mother. You had significant violence at a very young age at the hands of a former partner of your mother, who would enter your room and assault you. When your mother intervened, she too was assaulted. Your mother has since remarried and you have a good relationship now with both her and your stepfather. You have had very limited contact with your actual natural father. He, apparently is an alcoholic, and you have attempted to mend the relationship with him, but his alcoholism has destroyed that.
26You have one biological sister and three half-siblings and you maintain a good relationship with your sister. Your education and early childhood were unstable, as is so often the situation with people who have difficulties such as you. You attended 14 different primary schools, as your mother is continually moving, due to difficulties maintaining housing. You were a below average student and have difficulty with literacy and numeracy. You did however, manage to get through Year 10, before leaving school to work and you have had various jobs since then. You first moved out of home at the age of 16 years. You had a period of homelessness where you couch surfed and you lived in a park, and lived in a car.
27You have had one significant relationship other than this one, with a girl known as Anne, and this is the ages of 18 to 21, when that relationship ended, and it was associated also with the use of drugs.
28I have a report from Ms Cidoni, the psychologist, and she says that you have been diagnosed with depression and anxiety at the age of 20, and what she saw supports that. She has found that you a relatively low risk of sexual offending, and you have been doing the best you can whilst in gaol, working in manufacturing, whenever your unit is not in lockdown. You have completed a traffic management course, and you have started a mathematics course.
29That report of Ms Cidoni, points out the things that I have already mentioned. You began using alcohol at around that age of 15. You have used drugs and your prior history supports that. I am assuming that you are now, at least clean. Your overall performance on the intelligence test and the psychological testing of you, are significantly lower than your peers, and you are described as being immature.
30She described you as lower average intellectual capacity - sorry, borderline to low average intellectual capacity. She said that you have got - you have signs of trauma exposure with hypervigilance and over-reactivity. It was suggested you had PTSD, where many of the symptoms have resolved over time. I accept that that would have been very difficult for you, during your teenage years, and I take all the matters contained in that report into account.
31I think the risk of you reoffending is low. And I think the risk of - the prospects of your rehabilitation should be good. Because of the nature of the offending, you will be placed on the sex offenders register, and advise you the reporting conditions will be for 15 years.
32Counsel were very helpful and gave me cases. I am well aware of the principles, the presumption of harm, the general deterrence aspect, and all the problems that are caused to young complainants when pregnant at an early age. I have to balance all those matters with the low objective seriousness of this particular one, of which you have pleaded guilty to. The reality here is that you simply did not stop the relationship when you should have, and you kept going for another few weeks, with for you and for her, somewhat catastrophic consequences.
33But taking all those matters into account, I sentence you as follows:
·On the charge of sexual penetration, 15 months;
·On the charge of supply drug of dependence, three months concurrent.
34There is a total effective sentence of 15 months. In all the circumstances,
I direct that you serve a minimum term of nine months, before becoming eligible for parole, and 119 days I think, is PSD. I direct that you - 119 days I direct as having been served, under this sentence.35Pursuant to s6AAA of the Sentencing Act, I say, that but for your plea of guilty, you would have been sentenced to a period of imprisonment of two years, with a minimum term of 18 months. That indicates to you the benefit of your plea particularly in these times of Warboyes.
36All right, are there any other orders I have to make?
37MR GRANT: No, thank you, Your Honour.
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