Director of Public Prosecutions v Blencowe

[2015] VCC 1229

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

CR 15-01344

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRANT BLENCOWE

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Bendigo
DATE OF HEARING:	1 September 2015
DATE OF SENTENCE:	1 September 2015
CASE MAY BE CITED AS:	DPP v Blencowe
MEDIUM NEUTRAL CITATION:	[2015] VCC 1229

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Mr R. C. Kelly

Pages 1 - 11

 

 

HIS HONOUR: 

Grant Bernard Blencowe, you have pleaded guilty to the following charges: 

1Charge 1, between 12 December 2014 and 31 January 2015 you failed to comply with reporting obligations under the Sex Offenders Registration Act.

2Charge 2, between 18 March 2015 and 30 April 2015 you failed to comply with reporting obligations under Sex Offenders Registration Act.

3Charge 3, between 3 April 2015 and 30 April 2015 you committed an indecent act with a child under 16 years.

4Charge 4, on 2 April 2015 you committed the crime of sexual penetration of a child under 16.

5Charge 5, between 2 April 2015 and 26 May 2015 you failed to comply with reporting conditions under the Sex Offenders Registration Act.

6The penalties for charges 1, 2 and 5 which are the Sex Offenders Registration Act offences has a maximum penalty of five years' imprisonment. The maximum penalty in respect of Charge 3 which is the indecent act is also five years' imprisonment and the maximum penalty for Charge 4 is 10 years' imprisonment.

CIRCUMSTANCES OF OFFENDING

7At the time of these offences you were between 19 and 20 years old.  Your victim, I will refer to her as RC was 13 years old.  You are to be sentenced as a young offender. 

8In terms of the actual offending, I will refer at length to the prosecution opening which was an exhibit in this plea. 

9In relation to Charge 1, sometime before Christmas in December 2014, you met RC at your father's place.  RC was 13 years of age.  She was a friend of your sister's.  You struck up a friendship with RC and you exchanged phone numbers.  Over the rest of December 2014 and January 2015 you had regular contact with RC by text message and phone calls.  You would call and send messages to RC's mother's phone as RC did not have her own phone, and her mother would then pass on the phone to RC.  Such contact occurred on a daily basis. 

10You also stayed in contact over the Facebook.  On one occasion approximately two weeks after Christmas of 2014, you travelled to Kerang and visited RC at her home whilst in the company of RC's mother.  You arrived in the afternoon stayed there a couple of hours watching television with RC in the lounge room. 

11As a registered offender, if you have three or more contacts with any child, you are obliged to report the contact to the Sex Offenders Registry.  At no stage did you report this contact with RC set out above, and that is the basis for Charge 1. 

12On 18 March 2015 you were interviewed by police in relation to the above contact at the Bendigo Police Station.  You were cooperative and admitted striking up a friendship with RC.  You further admitted to not notifying the sex offenders registry despite being fully aware that you had to do so.  You then did not provide a reason for failing to comply with the reporting obligations.  You were charged and then released on bail to attend at the Bendigo Magistrates' Court in relation to that matter. 

13Then comes Charge 2.  Within a week or two of being charged and bailed on 18 March 2015, you received Facebook messages from RC and you re‑established contact with her.  The contact was by phone, Facebook and meetings in person both here in Bendigo and in Kerang.  Your contact continued throughout the rest of March and in to April of 2015.  At no stage did you report that you had re‑established contact with RC to the Sex Offenders Registry ‑ that's the basis of Charge 2. 

14In sequence you then committed Charge 4 on the indictment.  On 2 April 2015 you travelled to RC's house in Kerang.  You watched some movies together for a short time.  After a while you and RC went to an abandoned house around the corner from RC's house.  The two of you took with you a mattress and some bedding.  RC set up the mattress in a bedroom in the house.  You were outside smoking cigarettes. 

15After a short time you went back in to the house and in to the room where the mattress had been set up by RC.  You and RC kissed.  RC states that she told you she wanted to have sex with you, but you had said that you did not want to because you did not want to get charged and you did not want to feel like you were pushing her in to it.  RC states she talked you in to it and that before you did you told her to say stop if at any time it was hurting her.  You then had sexual intercourse for approximately 20 minutes.  RC stated that she was a virgin before that occasion and that you had been her first sexual partner ‑ that is Charge 4.

16Charge 3:  On another occasion in April 2015 ‑ this is after the time of your sexual intercourse with RC, you met up with RC at the supermarket in Kerang.  After having an argument with your father you then also had an argument with RC but then made up.  After this, you have walked down to the river in Kerang where you and RC have kissed passionately.  This is an incident that you disclosed in your record of interview with police.  That is the charge of indecent act with a child under 16. 

17In relation to Charge 5, you have acknowledged that you had used Facebook with the user name Nigel Barnes to communicate with RC on an occasion in April 2015.  Again, as a registered offender you were required to report that you had used the user name to identify yourself on Facebook and you failed to do so.

18It is clear from the summary and the depositions that your victim, 13 year old RC was a willing participant in these offences with you.  RC has elected not to file a victim impact statement in this case.  The age of your victim and her vulnerability are factors the Court has to take into account in fixing your sentence.

19Your offending came to the attention of the authorities through RC reporting to her mother that she might have been pregnant.  Also when RC was admitted to Tabor House for drug and alcohol rehabilitation she disclosed your involvement with her to counsellors of that place and they reported it to the authorities.

20On 27 May 2015 you were arrested in Bendigo and taken to the Bendigo Police Station and were interviewed.  You stated the following in your interview: 

a)    You said you had been interviewed and charged for having unreported contact with RC in March of 2015 and that you were aware of your obligations to do that.

b)    After that point you met up with RC heaps of times and the relationship “got more physical", by which you meant that sexual intercourse in the abandoned house.

c)    RC knew about the house and took you there after you had been to her house.  It was at night‑time and you took a mattress and blankets with you. 

d)    RC went inside, put the mattress down and you sat out the back having a cigarette.  You were stressed out thinking the police would be coming because you knew what you were doing was wrong. 

e)    You then went inside and laid down.  RC started kissing you and you then said "shit just got out of hand".  You had sex, although not for long, and you did not use any protection.  You stated you did not ejaculate inside RC. 

f)     You thought RC was 13 or 14 and accepted that you knew she was somewhat troubled and vulnerable. 

g)    You acknowledged it was wrong and a stupid thing to do. 

h)    You said that you would not have described your relationship with RC as being boyfriend and girlfriend but you knew that she thought of it that way.  You said that someone on the outside looking at your relationship would probably think that you were girlfriend and boyfriend.

i)     You acknowledged using a second Facebook profile in the name of Nigel Barnes, which you have said that RC had made up for you so that the two of you could stay in contract.  You said that you had only used it once in April to speak to RC for about half an hour. 

j)   After being charged in March of 2015, you initially blocked RC on Facebook so she could not send you any messages.  However two weeks later you weakened and unblocked her.  RC messaged you and there was contact back and forth after that, which you have described to the police as being continuous. 

k)    You then admitted that you had passionately kissed RC by the river in Kerang sometime in April after the occasion which you had sexual intercourse.  I have previously referred to this, that offence arises from an admission made by you and you alone. 

l)   You knew that sexually penetrating a child under 16 was an offence and did not feel good about it.  When asked you said:  "I don't know why I'd go for young girls, all right?”.

m)  When you were asked your reason for committing these offences you have said:  "cause I'm not right in the fuckin’ head, simple.  I don't think- just do it and then think afterwards.  It needs to be the other way around".

21Your answers to the police show that you understand the seriousness of the offending but have limited insight into how to stop yourself from getting in to trouble. 

IMPACT ON YOUR VICTIM

22As I have said before RC has not filed a victim impact statement, although she was aware of her rights in that regard.  The fact that she attends a drug and rehabilitation facility at the age of 13 after your offending indicates that she is a troubled young girl.  I am not saying that she did that because of your offending.  You knew she was troubled and vulnerable, but you did not resist the opportunity to offend when you had been charged pursuant to the events of Charge 1.

PERSONAL CIRCUMSTANCES

23You were born on 13 February 1995 and are now 20 years old.  You have two siblings aged 17 and 15 respectively.  You have lived with your father some of the time and otherwise here in Bendigo.  Your father attended your plea hearing.  He told the court he had been to all of your court hearings in the past.  He very bluntly said that when you were near him or living with him you did not get in to trouble.  When you have moved to Bendigo or gone to Maude/ Hay district in New South Wales where your mother lives, you have offended. 

24You have the support of your father who has a small farm near Kerang.  He has a new partner and young children.  You are unable to live with him because of the Sexual Offenders Registration provisions ‑ they do not want you in the actual house with them.  You have the availability of living with the neighbours over the road from your father's farm upon release from custody.  In short you have support in Kerang from your father. 

25You were born in Griffith and lived your early life in the Maude/Hay area of New South Wales.  When eight years old you moved to Bendigo with your family.  Your parents separated and you lived with your mother for a time and then moved back to live with your father.  These moves meant your education was fractured and you attended Hay Primary School, Warmore Primary School, Gerrung Primary School.  In secondary school you attended Rochester, Leeton in New South Wales and finally Waruna Secondary College here to Year 10. 

26After finishing school at Year 10 you returned to Hay.  You met CH on Facebook and had an 18 month relationship with her.  This relationship had two results for you:  a son and a court case at Leeton for sexual penetration of a child between 14 and 16 years old.  You were placed on probation.  This happened in July of 2013.  You have returned to Bendigo and have two prior court appearance for driving and burglary offences and intentionally cause injury. 

27On the latter charges you were sentenced to 100 days imprisonment and a CCO on 9 December 2014.  These current offences breach that CCO.  The breach is listed for hearing at Bendigo Magistrates' Court, tomorrow. 

28Currently you have spent 97 days presentence detention on remand for these offences.  You have no employment but are able to work with your father on his farm.  You have been assessed by Warren Simmonds, psychologist. His report dated 13 August 2015 is Exhibit 1 on the plea.  He has assessed your IQ as 76, meaning that 95 per cent of the population do better than you do on that assessment.  He noted that your father suffered an acquired brain injury as a result of a industrial accident.  Mr Simmonds notes that alcohol and its abuse by you may have played a part in your offending in these charges.  He assessed you as an immature and a person who is much younger than your chronological age would indicate.  He has assessed you as high range for reoffending and recommends you for sexual offender treatment program.

SENTENCING CONSIDERATIONS 

29The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation denunciation of your actions and the protection of the community. 

30In sentencing you, I must have regard to a range of factors, such as the seriousness of your offences, your culpability for them and your personal circumstances and those of your victim, RC.  I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, you, as an offender are rehabilitated and reintegrated in to society. 

31You have pleaded guilty at an early stage in these proceedings, as I have said before.  The plea was indicated at the committal mention stage, right at the early stage.  Your plea has a utilitarian value of allowing the orderly and effective administration of justice in this State.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates public confidence in the legal process set up to protect the community.  You have, by your plea, relieved the victim RC from giving evidence against you.  It facilitates some closure for the victim of your offending. 

32Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour in this case and I accept that is the case.  Your plea also recognises that you are willing to facility the course of justice in the community and it demonstrates remorse on your part. 

33You have limited insight in to the factors of cause and effect in relation to your offending.  Mr Simmonds is of the opinion and regards your risk of reoffending as high.  You are a young offender, now just 20 years old.  The main consideration for young offenders is rehabilitation.  The community is better served by you being given every chance to rehabilitate.  It is also better protected if you are rehabilitated. 

34I also have to be mindful of whether you are particularly impressionable, immature and likely to be subjected to the undesirable influences in adult prison.  You have already been in adult prison or some 97 days. 

35The balance of considerations is between the prospect of rehabilitation of a young offender such as yourself and just punishment for an offender such as yourself who have than offended in a similar manner in the past.  The particular and peculiar circumstances relating to Charge 4 which is a sexual penetration of a child under 16 mitigate against a long‑term of imprisonment in your case. 

36I also need to take into account the need to protect young and vulnerable people from sexual offenders.  This raises the issue of general and specific deterrence in this case.  I have taken those matters into account when fixing the whole of your sentence. 

37In the course of submissions on sentence I asked counsel whether a combination of a Youth Justice Centre Order and a CCO could be ordered, the operation of s.38 (2) limits the Court to a Youth Justice Centre Order of three months if a CCO was to be imposed for those offences at the same time.  During argument I have made my comments clear that that is an unsatisfactory situation for young offenders particularly someone such as yourself. 

38Mr Kelly on your behalf submitted two things:  first he submitted that a Youth Justice Centre Order would be an appropriate way to punish and rehabilitate you.  Secondly he submitted a CCO with conditions to address the sexual offending aspects would assist your rehabilitation. 

39Would you stand please. 

40On Charge 4 you are convicted and sentenced to serve four months imprisonment.  On Charge 1, 2, 3 and 5 you are convicted and sentenced to a community corrections order for three years.  The conditions of the community corrections order are that you be supervised for that period of time; that you receive alcohol treatment and rehabilitation; that you attend a sex offenders treatment program; and that you are to be judicially monitored. The first monitoring date is 19 November 2015 at 9.30. 

41You will have to report to the Bendigo office of corrections 48 hours after your release from prison.  Just so it is clear, your total effective sentence is four months plus the CCO.  Your pre‑sentence detention is 97 days not counting this day. 

42Under s.6 AAA but for your plea of guilty I would have sentenced you to 12 months imprisonment.  Your plea of guilty in this case is significant. 

43Under the Sex Offenders Registration Act in respect of Charge 4, you are a class 1 offence and you have to report for life, yes it is a long way. So there you go. That is it. Is there anything further?

44What that means is you have got a little less than a month inside from now.  You go back to where you came from today after you are dealt with tomorrow and after you get out you have three years of a Community Corrections Order.  Please understand if you breach that Community Corrections Order you come back before me.

45OFFENDER:  Yeah.  I don't want to.

46HIS HONOUR:  They all say that.  Please understand.

47OFFENDER:  Yeah.

48HIS HONOUR:  It will be tough, but this is your best chance of getting out of this and you stick with dad. 

49VOICE (from the body of the court):  Can I ask a question? 

50HIS HONOUR:  Perhaps you ask Mr Kelly.  Mr Blencowe in terms of your attendance for the judicial monitoring, there is a notation on here ‑ can you read? 

51OFFENDER:  Yeah.

52HIS HONOUR:  Yes.  There's a notation on here that you can do this by videolink from either Bendigo here or Kerang if you can find a videolink.  That will save the trip to Melbourne. 

53OFFENDER:  Yep.

54HIS HONOUR:  I have just made the notation on there, okay.  The other document is the sex offenders registration which you have obviously signed before but this one means that Mr Kelly, you can go down and help him with that.

55MR KELLY:  Yes.

56HIS HONOUR:  Thanks.  Officer you can remove the prisoner.  If you can just keep him for a minute so his dad can have a word to him out there.  Thanks very much for your assistance Mr Kelly.

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