Director of Public Prosecutions v Bloye

[2018] VCC 336

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-01431

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRAHAM BLOYE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	21 March 2018
CASE MAY BE CITED AS:	DPP v Bloye
MEDIUM NEUTRAL CITATION:	[2018] VCC 336

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. O'Doherty	Office of Public Prosecutions
For the Accused	Mr B. Stougiannos	Ian Brooks

HIS HONOUR: 

1Graham Bloye, you have pleaded guilty to one charge of indecent assault of
a girl under the age of 16 years.  The offending occurred back in the 1960s and I am obliged to sentence on the basis that the maximum penalty applicable then was imprisonment for three years.

2Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you and that order is made and handed down.

3You are now 84 years of age and you were in your early-30s at the time of the offending.  You have no prior convictions and I am told and accept that you have no subsequent conviction and you have nothing pending.

4You ultimately pleaded guilty.  It can only be said that that was at a late stage, but you certainly must get the utilitarian benefit of that plea of guilty.

5Whilst it is somewhat problematic, you did express, in the course of the pretext conversation, a degree of empathy and an apology and I take that into account. 

6The offending has occurred in excess of 50 years ago and that always poses
a difficulty for a sentencing judge of maximum penalties which would now be regarded as totally inappropriate and yet sentencing a different person.

7The circumstances of the offending are that the complainant was about ten years of age, she was living in Drouin East and you were friends of the family. 

8You, in April of 1967, were issued a permit to construct a new house in Phoenix Street in Warragul, which you did. 

9On a Saturday between 1 September 1967 and 1 April 1968, the Victim was playing with your children.  On that day, the family were moving belongings from a house, into the new house.  Someone suggested that she go along with you during the course of the shifting and the family were unpacking and putting things into that house. 

10You had an attic, which was accessed via a ladder at the rear of the house.  You were up in that attic. There was a mattress on the floor.  She went up into the attic and you encouraged her to lie down on the mattress to see how comfortable it was.  She laid down on her back, with her head pointing towards the window at one end of the attic. 

11While she was lying there, you put your hand on her chest and held her there and with your other hand, you started rubbing her genitals over her clothing.  After a while you removed her underwear and continued to rub her genitals and penetrated her vagina with your finger. 

12All that conduct gives rise to the charge of indecent and unlawful assault of
a girl under the age of 16. 

13Whilst you were doing this, you were asking her things like, "Does that feel good?  Is it tingly?" and "Can you feel anything?  Is it tingling?"  She said, "No".  As that was occurring, you would stop and your boys came to the ladder to pass up boxes, keeping one hand on her.  At one stage you needed both hands to take an item from the boys and you told her to just stay there.  While that was taking place, she put her underwear back on. 

14She remembers looking at the attic window and wondering if she could get out that way, but realising it would be too high.  She also recalls your then wife calling out and asking, "Where's [the Victim]?" to which you responded, "She's up here with me." 

15At one stage you told her to put her pants back on and as I indicated, she did that and you both came down out of the attic.  You were with her in the attic for nearly an hour, on her recollection of it.

16Shortly after you drove her home and told her that, "You know you can't say anything, because your father will blame your mother and we all know what will happen then."  She was concerned by that threat because of the circumstances of the family and obviously you were aware of that.  She never went back to that address again.  She determined that she would not report the matter, until such time as one of her parents had passed away. 

17In January 2016, after in fact that had occurred, she, having spoken to the police, took part in a pretext call with you.  During the course of that conversation, which went on for some time, you said, among other things, "Yeah, I must have, I must have, otherwise it wouldn't have had that effect on you and it's stupid when you were just - you know, males are like that, they get hormones and when they're frustrated and that they don't realise what they're doing sometimes" and as you said, "So that gives them the right to finger fuck ten year olds?" and you said, "Well not really" and she said, "No".

18It is hard for me to determine whether you do actually remember this incident or not, but there is certainly a readiness to accept that you did do it, both in that pretext call and in your record of interview with the police. 

19In any event, as the matter proceeded from there, there was concerns about your cognitive capacity, as to whether you could stand trial or not, but ultimately, in the end, you acknowledged your guilt and pleaded guilty to it.

20I have before me, which was read out by the prosecutor, the victim impact statement of the Victim.  What you did to her had affected her entire life.  I do not need to quote from it, people who need to know what is in it are sitting in court. 

21This sort of offending on young children has dramatic, long-standing psychological effect.  It can ruin lives and she has had to live with this now for, as I said, in excess of 50 years.  One can only imagine the fear of a child in that situation, with you doing that to her over an extended period of time, knowing that there is other people in the house, hearing them moving around and yet being unable to save herself from your, what can only be described as "deviant" conduct. 

22It is a serious example of that sort of offending and as I say, the maximum penalty for it then, when one looks at it now, seems preposterous, but that is what it was and that is the way I have to sentence you. 

23The crime has to be regarded as serious and I have just indicated that it is.  Of course the application of general deterrence, in your situation, specific deterrence play much of a part.  There has to be denunciation of it and as best as I can in these circumstances, an appropriate punishment, albeit a long time after the event.

24I then look at matters personal to you.  Tendered on your behalf were reports from Forensicare, Ms Gibbs, and a letter from a Dr Tretherway.  You clearly have a cognitive deficiency and Dr Tretherway says that you now have Alzheimer's.  Now that I have had that confirmed, there is no reason for me not to accept that that is the case.  As I have indicated, whether your memory about this is genuine or not, or lack of memory is genuine or not, I do not know. 

25There is also a letter from your daughter and I take that very much into account in this sentencing process.  It is sad, in one sense, but not in others, because at the end of it, no one should be able to outlive these sorts of accusations, but 84 years old, this is the one matter that has brought you before a court and it has come right at the end of your years and you will obviously live out your life under the shadow of it.

26You have always worked.  You were born in the Hill End area and survived the Black Friday bushfires in 1939.

27On the material before me, you have children who have been - and as I said,
I have said, have taken very much into account the letter from your daughter and you have certainly, it would appear, to have looked after them properly, at least.

28You became a builder.  You had your own business for a period of time.  You have got 13 grandchildren.  You have got five great grandchildren.  You have, over the years, participated in volunteer work, charitable work and used your skills for public good.  It is just very, very unfortunate that you have, in effect, damaged irreparably, it would seem, a young girl, who now has to deal with that as a material woman. 

29I cannot see that any disposition, other than a custodial one is appropriate.  The prospects of your rehabilitation will depend upon medical assistance, I suppose, The risk of you re-offending is effectively zero in all these circumstances. 

30Suspended sentences are open from that period of time and it seems to me that that is the appropriate disposition.  It will be in the interests of justice to do it. 

31Accordingly, on that charge, you are sentenced to be imprisoned for a period of nine months.  I, because, as I said, it is in the interest of justice, that is to be wholly suspended for a period of three years and I advise you that, should you breach that suspended sentence, certainly by offending in a manner such as this, it would be wholly restored and the would not be any questions asked about it. 

32I am not sure if a s.6AAA applies in this situation, but just in case I have to do it, I would say simply that, bearing in mind the maximum penalty at the time, but for your plea of guilty, you would have been sentenced to 12 months' imprisonment.  How much of that I would have suspended is another matter. 
I am unable to determine that, but I certainly would have made you serve some of that if you had kept up this not guilty.

33All right, there is no other orders I have to make, gentlemen, are there?

34MR STOUGIANNOS:  Your Honour indicated last Monday that you were prepared to grant an appeal cost certificate because the matter was ‑ ‑ ‑

35HIS HONOUR:  For the other day?  Yes.

36MR STOUGIANNOS:  Yes.

37HIS HONOUR:  Yes, we will do that. 

38MR STOUGIANNOS:  If Your Honour pleases.

39HIS HONOUR:  Yes.  Nothing else I need to do, Mr O'Doherty?

40MR O'DOHERTY:  No.

41HIS HONOUR:  Yes, all right. 

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