R v Blaikie

[2024] NSWDC 67

District Court

New South Wales

Medium Neutral Citation:

R v Blaikie [2024] NSWDC 67

Hearing dates:

8 March 2024

Date of orders:

15 March 2024

Decision date:

15 March 2024

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [65-67]

Catchwords:

CRIME — Child sex offences — Sexual intercourse with person 10 or over & under 16 years

CRIME — Child sex offences — Sexual intercourse with person under the age of 10 years

CRIME — Child sex offences — Assault with intent to have sexual intercourse – person under 10

CRIME — Aggravated indecent assault – Victim under the age of 16 years

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act1900

Cases Cited:

R v McNaughton (2006) 66 NSWLR 566

Veen v The Queen (No2) (1988) 164 CLR 465

R v Holder [1983] 3 NSWLR 245

Cahyadi v R [2007] NSWCCA 1

Texts Cited:

NA

Category:

Sentence

Parties:

Rex (The Crown)
John Blaikie (The Offender)

Representation:

Counsel:
Apps for the Offender
Oliver for The Crown

Solicitors:
Crick for the Offender
Dubiniecka for the Director of the Office of Public Prosecutions

File Number(s):

2021/00361889

JUDGMENT

1. John Blaikie (“the offender”) appears for sentence in respect of 6 offences for which he was found guilty by a jury following a trial which concluded on 28 November 2023. The offences are set out in the below table, together with brief particulars indicating the relevant complainant and the proven conduct, and also the maximum sentence. Counts 1 and 2 are offences of sexual intercourse with the difference being count 1 has an element that the victim be between the ages of 10 and 16 and for count 2 the victim must be under the age of 10. Count 3 is a charge of assault with intent to have sexual intercourse with a person under 10. Counts 4, 5 and 6 are offences of aggravated indecent assault with the victim being under the age of 16. The offending occurred in the period December 2001 to September 2002, so that there is no standard non parole period. As the offences were committed against children, the victims are referred to by the initials T and K.

Count	Sec	Partics	Max
1	66C	T: digital penetration	8
2	66A	K: digital penetration	20
3	66B	K: assault with intent to have SI	20
4	61M	K: IA; rub nipple	7
5	61M	K: hand on penis	7
6	61M	K: bottom slap	7

2. I note that the maximum sentences are a legislative guidepost indicating the legislature's view of the seriousness of the offences so as to assist in arriving at the appropriate sentence.

3. The offender was born on 10 August 1944 so he is now 79 years of age. At the time of the offending he was 57 or 58 years of age. The victim T was born on 25 June 1990 and so was 11 at the time of the offending and her sister K a victim of five of the offences was born on 21 October 1992 and so was aged nine at the time of the offending.

4. The offender was arrested on 21 December 2021. The offender was in custody from the date of his arrest until 21 September 2022 when he was granted bail and then for a further 102 days following the guilty verdicts delivered on 28 November 2023 up to the sentence hearing date of 8 March 2024. The time in custody is wholly attributable to these offences. The parties agreed that the date of commencement of the sentence should be 26 February 2023. The offender was not on conditional liberty at the time of the offending.

Facts and objective seriousness

5. The Crown provided a version of the facts consistent with the jury verdicts and obviously based on the evidence at trial. The accused did not take issue with those facts. Having considered those facts I find that the proposed facts are consistent with the jury verdict, open on the evidence and should form the basis of sentence. The following summary of the facts is taken from the version accepted by the parties.

6. The indictment gives a date range for each of the offences of between 1 November 2000 and 10 June 2002. The evidence allows for a finding that in fact the offending occurred between Boxing Day 2001 at the earliest and 10 June 2002. It was accepted that the offender had an alibi for the period of 22 March to 3 May 2002, namely he was in prison, so that whilst it may be that the offending occurred in the approximate one month after 3 May 2002 it would seem more likely that the offending period was a fairly confined period of 26 December 2001 to 22 March 2002. On that basis I find the offender was 57 at the time of the offending, the victim T was aged 11 and the victim K aged 9.

7. The offender was a friend of the grandfather of the complainants. The complainants spent time at their grandparents' home in Ballina. The offender occasionally visited the grandfather at Ballina which is how he came to have contact with the complainants.

8. Counts 1 and 2: The first two offences occurred some days after the offender had taken the children to a movie which the evidence showed had been released on Boxing Day 2001 which sets the approximate start date of the range of dates of the offending. As noted above the age of the complainants was 11 and 9 for counts 1 and 2 respectively. The first two offences occurred when on the pretense of taking the children fishing the offender drove them to a car park adjacent to the Richmond River on the outskirts of Ballina. He told the victims he was going to take their measurements so as to make swimmers for them. He told K to get out of the car so he could measure T. He then told T he needed to take her measurements and made her kneel on the back seat. He said that he needed to find where “the middle is”; he pulled her underwear to the side and was “digging” around her vagina pushing his finger inside causing pain and scratching her. T said “ow” and he said “oh sorry all done”. This is count 1.

9. T got out of the car and K then got into the back seat and the offender proceeded to act in an almost identical way with the same pretense of trying to find a middle spot for the measurement. He put his finger in her vagina and again was “digging around” trying to find the spot. He inserted his finger into her vagina and pretended to make notes and had a finger in his mouth.

10. The Crown contends the objective seriousness of both counts 1 and 2 is in the mid range. This is based on the age of the victims, planning and the type of intercourse and breach of trust. As to age, that is more persuasive for count 1 rather than count 2. There clearly was some modest planning involved. The breach of trust in this case needs to be seen in light of the fact that the offender was not well known to the children, and also will be a matter taken into consideration as an aggravating factor, so will not be considered here so as to avoid double counting. The type of intercourse in my view does not make it more serious; it was relatively brief and he stopped when T said “ow” in count 1. The offender contended that these offences fell just short of the mid range of seriousness, based mainly on the type of intercourse, and the apparent brevity of the offending.

11. I find that there was some planning involved by the ruse of going fishing and then followed by the ruse of taking measurements and having the tape measure. Even if it was to be considered opportunistic it is behaviour which is clearly considered and not impulsive. The conduct does not endure for an extended period but neither in all the circumstances could be considered brief. There is no overt violence beyond what is necessary for such an assault though it did cause pain with some scratching in the case of T. The authorities recognise that there is no hierarchy of intercourse, and the fact it was digital rather than penile is something I do take into account, but only in a modest way.

12. I would assess both these matters in the high low range of objective seriousness.

13. Count 3: The offence here is assault with intent to have sexual intercourse with a child under 10. Based on the facts, the intended sexual intercourse was digital penetration of the complainant’s vagina. This offence follows on from counts 1 and 2 and occurs in the car when the offender is driving away from the river. The offender tried to pry K’s legs open and his fingers were on her underpants trying to get inside her vagina.

14. This offence is brief. The nature of the assault is a serious one given the part of the body being assaulted is the complainant’s vagina, but it is also minor in that the facts establish nothing other than the prying open of the legs and the touching of the underpants. The jury has found it was done with the necessary intent and therefore it is a more serious matter than indecent assault. The position of the parties in respect of this count was seemingly to treat it as the same as counts 1 and 2, that is, in terms of objective seriousness, mid range (Crown) and just short of mid range (offender).

15. In the circumstances just described, I consider this offence to be low in objective seriousness.

16. Counts 4, 5 and 6: the offender submitted that these offences fall within the low range of objective seriousness. The Crown position was that the seriousness of counts 4 and 5 should result in a custodial sentence but that count 6 was not in the same category.

17. On a later date and it would seem possibly within a week or so of the earlier offending (ie, counts 1, 2 and 3), and on the same day that the offender had allegedly tried to “measure up” a friend of the victims named Emma, whose evidence was led as tendency evidence, K was doing a puzzle in the back room of her grandparents house. The offender sat close to her while she was doing the puzzle and rolled down her “boob tube” and rubbed his finger over her nipple. This is count 4.

18. This is fairly brazen, involves lowering the child’s clothing and is skin on skin on her nipple. It is fairly brief.

19. I would assess this as being high low in objective seriousness.

20. Following count 4 the offender then grabbed K’s hand and placed it on his penis through his shorts and made her manipulate his penis. It is not clear how long this went on for. For that reason and given that it is not skin on skin I would assess this as being in the high low range of objective seriousness also. This is count 5.

21. Following that conduct, when K stood up to reach another piece of puzzle the offender slapped her on the bottom. It is not clear but it would seem likely that this was not skin on skin and I proceed on that basis. This is count 6.

22. This would be assessed as low in objective seriousness.

Aggravating factor

23. The aggravating feature here is the abuse by the offender of a position of trust in relation to the victims. That he was able to be with the victims is because he was a family friend of the grandparents. The facts suggest that he may have engaged in some deceit in order to separate the children from the home but I am not able to find that beyond reasonable doubt. The fact remains that he was able to be with the children and then suggest to them activities such as the fishing trip, and also to be with them in the grandparents back room, because of that friendship which involves in so far as he is dealing with the children a degree of trust. The children also would have been at least initially trusting of an adult in his position and even more so given their young age. It is an aggravating feature which I take into account but care must be exercised that there is not some double counting of this factor by considering it when assessing objective seriousness as well as an aggravating factor. The above assessment of objective seriousness has not taken this factor into account.

Victim Impact Statement

24. The victim K provided a victim impact statement. The victim T did not. In the victim impact statement of K she says it has affected her self worth and says that still to this day she cannot sleep well. She feels paranoid about people and their “intentions”. She has trouble coping with day-to-day life. She experiences anxiety and worry. She says she feels a lot of guilt and shame over “everything” which she says stems from what the offender did. It affects her everyday life of being a mother, wife and friend.

Subjective case

25. The offender does not have the benefit of any discount given that the matter proceeded to trial resulting in guilty verdicts delivered by the jury.

26. The criminal history of the offender is extraordinarily long. It began in 1958 in the Children’s Court. The offender was born on 10 August 1944 so was then 13 years of age. As a child the offending is almost exclusively stealing. His first offence in an adult court was larceny in 1963. Thereafter he continued with committing property offences with the last such offence apparently occurring on 5 June 2017 of break and enter with intent to steal for which he was given a 12 months term of imprisonment with a non-parole period of eight months expiring on 4 February 2018. The offender is now 79 years old and has therefore been an adult for 61 years. He has spent 34 of those 61 years in custody. Obviously there is no leniency available to him based on his record. Only two arguable positives emerge for him. The first is that prior to being charged with these offences on 21 December 2021 he had not committed any offence since being released on parole on 4 February 2018 by which time he was 73 years of age. He still has not committed any further offences since that time for of course the present offences are historic, occurring in 2001 / 2002. It may well be that his criminal activities of predominantly breaking and entering had been brought to an end due to his advancing age. The second matter that might favour him is that amongst that entire record there is only one other offence of a sexual nature albeit a very serious one. In 1975 he was convicted of rape and was sentenced to 10 years dating from 30 October 1975 and with a non-parole period to expire on 1 September 1979. The submission is that offending of the type now being sentenced is uncharacteristic of the offender. That would appear to be the case with the one very notable exception. In my view it does not aid the offender to any significant extent but I nevertheless take it into account.

27. The offender relied upon a report prepared by Paige Cornell, a clinical psychologist. There was an interview conducted by AVL and the report writer notes that the offender appeared quite frail and moved slowly. My own observation of him at the sentence hearing where he appeared in person as compared to how he appeared in person at the trial was that he appeared more frail.

28. The offender’s history is that of an only child to parents separated when he was young. He did not have a relationship with his father. His mother re-partnered and he was exposed to domestic violence between his mother and the stepfather. The offender went to live with his maternal grandmother and grandfather from the age of 9 or 10. The relationship with his mother remained close despite his anger and hate towards his stepfather. His mother had three more children but the relationships between them and the offender were not maintained once he left his mother’s home.

29. There was a positive relationship with his grandparents. He lived with them until his mid-20s. When he moved out at about the age of 25 he lived in the same street and continued to support his grandmother and assist her.

30. There is no family history of substance abuse, criminal behaviour (apart from domestic violence) or mental health issues.

31. He left school before age 16 and was working full-time at age 16. His criminal conduct and time in custody interrupted his work career. He developed skills in sewing whilst in custody. The longest time he could sustain this work in the community was six months due to repeated returns to custody. His behaviour in custody would appear to have been good. When in the community he said he returned to criminal behaviour to support himself.

32. He suffered a head injury in his early 20s which is said to have affected his memory. He experienced reflux and also arthritis and is presently suffering a double hernia above his kidney. The ongoing investigations with that have been delayed due to custody. He takes no medication other than Panadol for pain relief.

33. He has a history of minimal alcohol use and no use of illicit substances. His social history would appear to be one of social isolation and his criminal activity began on his own. In recent years he has received support from neighbours and his son who was the product of a 2 year relationship when he was 29 with a woman aged 18.

34. The offender’s attitude to sex would seem to be best summed up by the fact that he had his first sexual encounter at age 29 which he explained by being more interested in thieving and keeping his head above water. He states his sexual orientation to be heterosexual and denies any deviant sexual interests and also denied any sexual contact with an underage child and thus the present offences, saying that he is attracted to women between the ages of 20 to 55.

35. The history given concerning his time in prison suggests that he does not consider it altogether unfavourable. His account is of being largely productive in custody; he is apparently compliant and cooperative with prison routine. He was assaulted in prison in his early 20s which is where the concern for the head injury comes from. Presently he generally feels well supported save that he is frustrated about the lack of medical investigation in custody. He mentioned that the routine lifestyle of gaol is helpful in reducing the impact of his cognitive issues on his daily life which I take to be a reference to his memory lapses.

36. That said he reports depressive symptoms at times of his periods of custody.

37. He reports his current mood as average and not as low as previous times in custody which he attributed to his current pod placement being more supportive and suitable for his needs. He is however worried about his sentencing and the uncertainty of his future. He does not consider there is any need for intervention for mental health symptoms at the present time.

38. A risk assessment was carried out. Based on static and historical risk factors the offender was assessed as an average risk category of sexual reoffending. Though it was also expressed that he had a risk of sexual reoffending 1.39 times higher than the average sexual offender. When dynamic factors were considered the assessment was of a low risk of reoffending. Given the offender’s age and the absence of any offence since 2018 that would seem accurate. The psychologist sums up this issue by saying that the offender poses an overall low risk of sexual recidivism and notes that due to his age his risk will continue to decline; see [73]

39. The opinion is offered at [77] that the lack of intimate relationships and sexual naïveté of the offender were possible contributing factors to the offending.

40. The report concludes by saying the offender’s age and cognitive decline means the usefulness of offence specific interventions is likely limited. There may be some value in brief offence specific intervention which is more likely to be available in the community. In terms of management of his risk in the community it is said the offender would benefit from ongoing supervision restrictions prohibiting unsupervised contact with any person under the age of 18.

Submissions and consideration

41. The purposes of sentencing are set out in section 3 A of the Crimes (Sentencing Procedure) Act (CSPA). They are:

1. To ensure the offender is adequately punished.

2. To prevent crime by deterring the offender and others from committing similar offences.

3. To protect the community from the offender.

4. To promote the rehabilitation of the offender.

5. To make the offender accountable for his actions.

6. To denounce the conduct of the offender.

7. To recognise the harm done to the victim of the crime and the community.

42. The offender helpfully pointed out that the sentence must be in accordance with the sentencing patterns and practices at the time of sentencing and further that the court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing.

42. It was submitted that the harm caused was not substantial. By that is meant it was not more than is accepted to occur in matters of this nature. I accept that submission in respect of count 1 but not in respect of the other counts due to the contents of the victim impact statement of K to which I have given consideration.

43. The matter of planning has been addressed earlier in assessing objective seriousness.

44. The history of the offender as set out in the psychologist report is touched on and emphasises that the offender poses an overall low risk of sexual recidivism. I accept that to be the case and further that the risk is declining with his failing physical condition.

45. The offender accepted that counts 1, 2 and 3 call for full-time imprisonment as do counts 4 and 5 however the Crown suggestion of the sentences for count 4 and count 5 being wholly concurrent was embraced. In respect of count 6 the offender argues that it should be dealt with by way of section 10A of the CSPA.

46. A finding of special circumstances is sought due to the age and ill-health of the offender and that there is a need for a lengthy period of supervision upon release. Just why that would be so is not clear given his low likelihood of reoffending. I do find however that age and ill-health gives a basis for special circumstances.

47. For the Crown, that there is only one prior sexual offence in the offender's long criminal history is recognised and the principles of Veen and McNaughten are not called in aid. Plainly however there is no entitlement to leniency.

48. The Crown notes the offender’s continued denial of the offences. It also notes that the evidence does not really give an understanding of just why he has the criminal history he does.

49. As to the appropriate outcome the suggestion of the Crown has been adopted by the offender. That is the parties agreed there should be a custodial term in respect of counts 1 to 5 inclusive and that the sentences for counts 4 and 5 should be concurrent and that the outcome of count 6 would not add to any term of imprisonment.

50. In considering the appropriate outcome it is essential to consider what purposes of sentencing should be emphasised. In cases of this type deterrence is a matter that requires weight. Children are vulnerable and there is a great need to make the point to the general community that sexually interfering with children will receive stern punishment.

51. There is in this case given the age, ill-health and low risk of reoffending of the offender little need for much weight to be placed on specific deterrence.

52. The conduct of the offender should be roundly denounced and the harm done to the victims should be recognised. There is little need in this case again due to the age and ill-health of the offender to promote his rehabilitation; based on his record he would appear to have been unable to offend in the way he did earlier in his life in the past five years or so.

53. The offender's record is extremely lengthy. It denies him leniency. Beyond that however with the one notable exception of rape in 1975 it is almost entirely property matters. Perhaps strangely, beyond denying him leniency, and also showing a recent period of no offending, the extensive record does not impact on the sentence imposed.

54. There is nothing in the psychologist’s report that raises matters that would lessen the moral culpability of the offender. There were some difficulties that he suffered as a child notably not knowing his father and being exposed to domestic violence. Yet he had positive attachments to his grandparents and his mother. Just why he commenced what could truly be called a life of crime at such a young age and maintained it for so long is not explained on the evidence. This may be partly due to the lack of memory and what has been referred to as cognitive difficulties the offender now suffers in his old age. It nevertheless remains unexplained. His record apart from the 1975 offence which was 26 years before the current offence and 49 years prior to this sentence, does not suggest any sexual deviancy and the description of his life in the psychologist’s report does not suggest any predisposition to deviancy. The one conclusion that seems to be able to be drawn from the evidence about the offender is that he does not have any real regard or respect for the laws of society, certainly in respect of property matters. Perhaps put another way he has little hesitation in breaching the law.

55. The offender has expressed no remorse and continues to deny the offending. Favourable to him in assessing the appropriate sentence there is a low likelihood of reoffending and whilst it is difficult to assess his prospects of rehabilitation, where there is a low prospect of reoffending the impact of unfavourable prospects of rehabilitation on the sentence are minimal and indeed in this case no weight is placed upon that factor adverse to the offender.

56. There is apart from the offender’s age and state of health and low risk of re offending, little that can be said by way of mitigation. The fact of his age and health is also a basis for special circumstances.

57. There is no doubt that the offending of counts 1 and 2 call for a term of imprisonment. As already noted I do not assess count 3 as being as serious as those counts, but it does in my view, in all the circumstances of this case across the section 5 threshold.

58. So too do counts 4 and 5. Despite the position of the Crown being that those offences should be met with wholly concurrent sentences I am of a different view. There will be significant concurrency but the fact is they are two quite distinct events albeit that they happened quite close in time on the one occasion. To pull down a young girl's top to rub her nipple is a significant criminal act which alone is recognised as very likely to cause a lasting negative impact on the victim. To then take that same victim’s hand to place it on the offender’s penis so as to manipulate the penis is a second significant criminal act.

59. I accept the parties' positions in respect of count 6 and although they offer different ways of achieving the same result, my view is that matter simply is a matter that does not pass the section 5 threshold and should be dealt with by way of section 10A of the CSPA.

60. As to counts 1 to 5, I propose proceeding by way of an aggregate sentence. The indicative sentences are set out in the below table which for convenience indicates the count, the relevant section of the Crimes Act, some brief particulars to identify the offence, the maximum term of each offence and the objective seriousness as assessed above.

61. The indicative sentence in respect of count 2 is greater than count 1 due to the fact of the maximum sentence being so much higher reflecting the greater seriousness of the offence given the age of the victim. But for one matter the offending of counts 3, 4 and 5 could be considered similar; the sentence is greater in respect of count 3 due to the intent which forms part of that offence and which explains the greater maximum sentence.

62. In arriving at the aggregate sentence the principle of totality is relevant. In R v Holder [1983] 3 NSWLR 245 it was made plain that what is required is for a sentencing judge to evaluate the overall criminality involved in all of the offences and to adjust the aggregate sentences “to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences”. The principle recognises that adopting a lineal approach of accumulating the sentences may often lead to a disproportionately harsh sentence. Cahyadi [2007] NSWCCA 1 at [27], made the point that the principle may apply where there are two discrete acts of criminality or where the offences involved can be regarded as part of a single episode of criminality. That no doubt is the basis for the parties taking the view that there should be total concurrency between counts 4 and 5. In reaching a contrary view to that of the parties I have taken these principles into account though I would add that the impact on the sentence is not a marked one.

63. Taking all of the above matters into account the result I come to is that there should be an aggregate term of imprisonment of six years with a non-parole period allowing for special circumstances of four years. As explained earlier in these reasons the sentence will date from 26 February 2023.

Orders

65. Following the jury verdicts of guilty on 28 November 2023 in respect of counts 1 to 6 on the indictment the offender is convicted of those charges.

66. The sentence will be an aggregate term of imprisonment in respect of counts 1 to 5, the indicative sentences for which are as stated in these reasons. The offender is sentenced to a term of imprisonment to date from 26 February 2023 with a non-parole period of 4 years with a balance of term of 2 years expiring on 25 February 2029. The offender will first be eligible for parole on 25 February 2027.

67. In respect of count 6, the Court proceeds by way of s10A CSPA so that the offender is convicted without imposing any other penalty.

Table

Count	Sec	Partics	Max	Obj Ser	Indicative
1	66C	T: digital penetration	8	High low	3
2	66A	K: digital penetration	20	High low	4
3	66B	K: assault with intent to have SI	20	Low	2
4	61M	K: rub nipple	7	High low	1 ½
5	61M	K: hand on penis	7	High low	1 ½
6	61M	K: slap on bottom	7	Low	10A

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Decision last updated: 04 April 2024