Director of Public Prosecutions v Bloom

[2023] VCC 1821

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02209

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

GARY BLOOM

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JUDGE:	HER HONOUR JUDGE HARPER
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2023
DATE OF SENTENCE:	6 October 2023
CASE MAY BE CITED AS:	DPP v Bloom
MEDIUM NEUTRAL CITATION:	[2023] VCC 1821

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW      

Catchwords:              Indecent assault – historical offending – offender then aged 20-21, victim aged 10-11 years 

Legislation Cited:      Sentencing Act 1991; Sex Offenders Registration Act 2004 

Cases Cited:

Sentence:3 years imprisonment, wholly suspended for 3 years 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E.Fargher	A. Hogan, Solicitor for Public Prosecutions
For the Accused	Mr T. Glass	Tyler, Tipping & Woods

HER HONOUR:

1Gary Bloom, you have pleaded guilty before me to three charges of indecent assault, the first charge being a rolled-up charge comprising three occasions.  The maximum penalty applicable to this charge is five years for each offence. 

Circumstances of Offending

2The circumstances of your offending were comprehensively outlined in Exhibit A, the summary of prosecution opening dated 28 August 2023.  I will summarise those facts here. 

3Your offending took place in Greensborough on a single day in 1985.  You were aged between 20 and 21 years of age and worked as a primary school teacher in Diamond Creek and as a swimming coach. 

4Your victim, Walter Banks (a pseudonym), was aged between 10 and 11 years.  His parents were separated and he and his siblings lived with their mother during the week.

5Your victim would often play in a secluded grassed area near his home.  There was a vacant block and a fenced horse paddock with a line of pine trees.  It was a bushy area used as a tip for green waste where local children would ride their bikes. 

6Walter Banks would play with friends in the paddock and bushland almost every day after school, but tended not to go beyond the fence line of the paddock.  The children built a cubby house under the pine trees. 

7You began to attend the paddock regularly when the children were there.  You would approach them, you were friendly and showed an interest in them. 

8On occasions you would sit with Walter Banks and his friends in the cubby house, talking to them about sex and showing them pornographic magazines.  There was one occasion when the victim went to your house with you. 

9On the day in question, Walter Banks was alone in the paddock when you approached him and asked him to look at your pornographic magazines with you.  You walked into the bushland area and he followed you.

10You stopped at a small clearing and sat down.  You told him to sit with you and he did, facing you.

11You produced a pornographic magazine and asked Walter Banks if he enjoyed looking at the pictures.  As you said this you reached out and rubbed his penis with your hand over the top of his clothing, telling him it was all right.  This is the first incident reflected in Charge 1.  

12You took Walter Banks's hand and placed it onto your semi-erect penis over your shorts.  This is the second incident reflected in Charge 1. 

13You told your victim you wanted to see his penis and pulled down his pants and underpants.  He was still sitting down.  You then pulled your own pants down, exposing your penis, and placed his hand upon it, moving his hand up and down to masturbate you.  This is the third incident reflected in Charge 1. 

14You asked Walter Banks if he had ever put anything into his bottom.  He said 'No'.  You took his hand, clenched his fingers down with his index finger pointing out, and put the victim's finger into your anus.  You held his arm there so he could not move.  This is the basis of Charge 3. 

15You asked your victim if you could put your penis in his bottom.  He said he did not want to.  You pulled his arm away, grabbed him by the hips and pulled him down on the ground so he was on his side, facing away from you.  You put your finger in his anus, causing him pain. 

16Walter Banks told you to stop and said he did not like it.  He said his mum would be wondering where he was and would be looking for him.  He tried to pull your arm away but you were physically resisting him, all the while reassuring him that it was okay.  Your tone had become less friendly and your victim was terrified.  He managed to get to his feet and ran away.  He could still smell you and felt dirty. 

17Walter Banks told one of his friends at school what happened to him and was ridiculed for it.  When he saw you in the street you told him not to tell anybody what happened or he would get angry. 

18Sometime later, Walter Banks told his mother he had been molested.  He later told his father, who reported the matter to police.  

19In August 2019 Mr Banks reported the offending to police himself. 

20Investigations revealed you were residing abroad at the time of the report to police. 

21Mr Banks conducted a pretext call with you, speaking on the phone for over an hour.  You made partial admissions to the offending, stating,

·    I don’t have any memory anymore; 

·    I had a breakdown; 

·    My home life was really, really horrific and some of my actions were an expression of that; 

·    I have undergone counselling; 

·    There were acts in my teenage years that were bad, and that there were expressions of sexuality, sexual identity that I was totally confused with; 

·    I spent a lot of time – well, living with immense guilt of what – things I had done; 

·    I apologise profusely. 

22You returned to Australia in late December 2021 and were arrested by police. 

Gravity of the offending and moral culpability 

23Sexual offending against children is of the utmost gravity.  The offences to which you have pleaded are all serious.  Charges 2 and 3, even more so than Charge 1, as they involve penetration of, and with, a 10 to 11 year old child. 

24By way of explanation your counsel, Mr Glass submitted that you were experimenting with your sexuality.  One does not experiment with a young, vulnerable and protesting child.  This was criminal offending, not experimentation.  I find your moral culpability to be high. 

Victim Impact Statement 

25Read in court and received as Exhibit 2, was a victim impact statement by
Walter Banks.  It eloquently bespeaks the horrific and lasting impact of your offending on your victim, whose life has been forever changed by your actions. 

26Mr Banks said that you infiltrated, twisted, and demeaned his sense of identity and self-worth.  You degraded him.  He long believed he was to blame for your offending against him.  He struggled with relationships, trust, and intimacy. 

27He posed the question “How do I catalogue a lifetime of trauma caused by you and do it meaningfully so that people can begin to understand the impact of what you did, how much you hurt me, the damage that you caused, and what I have gone through getting to this point?” 

28While I have regard to the impact of the offences on Mr Banks, I must of course be careful not to let that impact overwhelm the other relevant sentencing factors
I must take into account. 

Plea of guilty 

29Your plea of guilty was entered into this court after a committal hearing where your victim was cross-examined.  It is not a plea at the earlier stage, but nevertheless it has utilitarian value.  You have saved the community the time and expense of running a trial and spared your victim the ordeal of giving evidence before a jury.  As such you have facilitated the administration of justice and you are entitled to a benefit for that. 

30The utilitarian benefit of your plea is enhanced by the fact that the Worboyes v R [2021] VSCA 169 considerations are engaged.  This results in a more pronounced amelioration of sentence than at other times. 

Remorse 

31Despite partial admissions in the pretext call outlined above, you made no comment when interviewed in relation to this offending.  You then ran a committal, as was your right.  You did however indicate a plea of guilty to the present indictment on 17 April 2023. 

32Your plea is reflective of remorse and I note you freely returned to Australia to facilitate the prosecution of these charges.  In this regard, you have cooperated with authorities. 

33I further note the letter of apology, Exhibit 2, in which you express remorse for your actions.  I take these matters into account.

Personal circumstances 

34I turn now to your personal circumstances. 

35You are now 68 years of age, having been born in March 1955 in Melbourne. 

36You are the eldest of four children and your mother suffered significant mental health problems.  On one occasion you discovered her attempting to commit suicide.  Your father worked hard but therefore often absent from the family. 

37You completed a year as an exchange student in Brazil when you were 16 to
17 years of age.  You then completed Year 12 and went on to graduate from teachers college.  You worked as a primary school teacher at Sacred Heart Primary School in Diamond Creek until 1992. 

38In 1992, you returned to tertiary studies and undertook degrees in science and geology at La Trobe University.  You then began to work as a geologist, both in Australia and internationally, in the on and off shore mining and oil industries. 

39In 1992 you married your wife.  You went on to have two children.  You now identify as homosexual but maintained a supportive relationship with your wife.  I note you also have the support of extended family.  

40In the early 2000s you began to work increasingly in Europe, and in 2005 you and your family moved to Scotland for an initial period of two years.  You decided to stay and have been working as a wellsite geologist there ever since.

41Most recently you have been working on contracts with Shell on offshore oil rigs. 

42You have returned to Australia to face these proceedings.

Psychological report 

43I received a report from clinical psychologist Michael Bilyk, Exhibit 1, dated
16 February 2023.  

44Mr Bilyk conducted various tests which showed you 'tended towards an overly self-favourable presentation, which gave a very high likelihood of invalid responses'.  He found that 'test results are unlikely to be a valid reflection of Mr Bloom's experience'.

45This casts a shadow over the contents of the report, and I consider that all conclusions he draws must therefore be treated with the utmost caution. 

46Mr. Bilyk notes that “Mr Bloom accepts partial responsibility for historical sexual misconduct … He accepts certain boundaries around appropriate sexual behaviour [in the context of struggling with his sexuality] were likely obscured, though he denied that he was predatory or engaged in forced or unwanted sexual contact.” 

47This runs contrary to the facts of this case, where you ingratiated yourself with the young victim and his friends before engaging in clearly unwanted sexual conduct with him.  It appears your insight into your offending is thus somewhat limited.  

48I note that a risk for sexual violence protocol (RSVP) assessment found you to be at a moderate to low risk of sexual recidivism. 

Sentencing principles and factors 

49Mr Bloom, your offending was predatory, unacceptable, and has had a grave impact on your victim.  You offended against a 10 to 11 year old child in circumstances where you, at the age of 20 to 21, had spent considerable time forging a relationship with him and his friends.  You found him alone and took the opportunity to offend against him. 

50You were not exploring your sexuality, you were sexually assaulting a child some 10 years younger than yourself in a devious and opportunistic way. 

51The matter did not come to light until 2019.  The period between the offending in 1985 and you coming before this court has allowed you to demonstrate that you can go a sustained period without reoffending.  The delay has thus been of considerable benefit to you, and I take this positive reflection on you into account. 

52I received your letter of apology, Exhibit 2.  I do accept that you are no longer the young man who committed these offences, and that you are now a productive member of society. 

53Just punishment and denunciation are relevant considerations, as is general deterrence.  Sexual offending against children is all too common, and others must be deterred from committing such offences. 

54I accept that specific deterrence is moderated by your demonstrated efforts at rehabilitation.  While there is one subsequent offence in 1992, you come before the court with no prior convictions, and have not reoffended for a significant period of time. 

55In all the circumstances and despite my misgivings about the psychological report, I find you to have good prospects of rehabilitation. 

56I consider community protection to be similarly moderated, and although you were found to be a low to moderate risk of offending, I note there are historic but not immediate risk factors present. 

57Totality must also play a part in the sentencing exercise as the three offences are so closely related.  This will be reflected in the sentence I impose.

Sex Offenders Registration Act 

58You have committed one class 2 offence and two class 1 offences. However, all charges occurred within a 24 hour period, so are considered to be part of the same incident, pursuant to s5 of the Sex Offenders Registration Act 2004.

59Having therefore committed one class 1 offence, you are to be placed on the register for a period of 15 years, pursuant to s34(1) of the Act. 

Disposition 

60On Charge 1, you are sentenced to 18 months' imprisonment. 

61On Charge 2, you are sentenced to two years' imprisonment. 

62On Charge 3, you are sentenced to two years' imprisonment. 

63Charge 2 will be the base sentence.

64I order that three months of the sentence imposed on Charge 1 and nine months of the Sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 2 and on each other. 

65That makes a total effective sentence of three years imprisonment. 

66I order that the sentence be wholly suspended for a period of three years. 

67Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, the sentence I would have imposed would have been three years,
six months' imprisonment with a non-parole period of eighteen months to serve before being eligible for parole. 

68Would you please provide the sex offender registration acknowledgement to
Mr Bloom?  Thank you.  Is there anything else from either party?

69MS VARGA:  No Your Honour.

70MR GLASS:  No Your Honour.

71HER HONOUR:  We will adjourn the court, thank you.

72MR GLASS:  Thank you.

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