R v Bligh (a pseudonym) [2019] NSWDC 721

District Court New South Wales

Medium Neutral Citation: R v Bligh (a pseudonym) [2019] NSWDC 721 Hearing dates: 7 November 2019 Decision date: 07 November 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Imprisonment for 6 years; with a non parole period of 4 years 6 months. Catchwords: CRIME -SENTENCE - Aggravated sexual intercourse with a person under 10 years of age - no special circumstances. Legislation Cited: Crimes Act 1900 (NSW), s.66A(2) Cases Cited: R v GWM [2012] NSWCCA 240 Category: Sentence Parties: Regina (Crown)

Bligh (a pseudonym) - (Offender) Representation: Mr Carnell (ODPP)

Mr Wallach (Counsel for the offender) File Number(s): 2018/352821 Publication restriction: Non publication order made of the names of the victim, the offender and of anything that might directly or indirectly identify them.

Judgment 1. Mr Bligh, you appear for sentence today in relation to one offence of aggravated sexual intercourse with a person under ten years of age, the circumstance of aggravation being that the victim was under your authority. 2. This offence involves a contravention of s 66A(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is life imprisonment. There is a standard non‑parole period of 15 years' imprisonment. 3. The facts surrounding your offending behaviour are contained in an agreed statement of facts, supplemented to a degree by the expert evidence of Dr Furst. 4. Slightly recast by me as to style but not substance, the facts can be stated as follows. 5. In June 2010, you were almost 41 years old and you had been involved in a relationship with a lady for some years. This lady had two young daughters at the time you commenced your relationship with her, and one of those daughters was the victim. In June 2010 she was nine years old. You were effectively her stepfather. 6. On the morning of 15 June 2010, you went into the victim's bedroom, and when you were there, you sat on the end of her bed. Initially, you placed one of your hands on her stomach. It was underneath her pyjamas and on her skin. The victim was confused as to why you were doing this because you had never done anything like this before. So she closed her eyes and pretended to be asleep. 7. You moved your hand from her stomach and placed it inside her pyjama pants. Then you touched the outside of her vagina and her pubic hair. The victim did not say anything whilst you were doing this to her because she was scared. She thought that if she continued to pretend to be a sleep, you would stop and leave - but you did not. 8. You lowered her pyjama pants to the top part of her thighs. You again rubbed the outside of her vagina, and then you placed one of your fingers inside her vagina. You moved your finger in and out of her vagina for about 30 seconds. Some emphasis has been made about the short nature of this act of sexual intercourse and, it is true, it was short. But you hurt her. She had a burning sensation inside her vagina, which is suggestive of the fact that no lubrication at all was used before this 30‑second digital penetration of a nine‑year‑old girl in her own bed took place. 9. When you removed your finger, you again played with the outside of her vagina. You left - not because of any feeling of wrongdoing - but because something startled you. 10. As you left, the victim opened her eyes and saw you. You told her to go back to sleep. This vulnerable child then began to cry, and she felt pain in her vagina as a result of what you had done to her. 11. It is this act of digital penetration that constitutes the offence. 12. In terms of its objective seriousness for an offence of its kind, it is below a mid‑range offence but it is not at the bottom of the range. 13. It is additionally aggravated by the fact that it took place in the home of the victim. 14. The agreed facts also tell me about what happened next: about how the victim made immediate complaint to her mother; how her mother confronted you; how you lied and insisted that the child was dreaming; and how you persuaded her mother not to believe her own daughter. The victim ceased insisting that what she had said was true in the face of her own mother's refusal to believe it, based on what you had told her mother. 15. In late 2010, the victim left her mother's house to go and live with her father. Her reason was to get away from you. 16. The victim's mother and you separated in 2010. 17. Nothing further happened in connection with your sexual assault on that nine‑year-old child for another eight years. 18. But almost eight years to the day, the victim's mother found out that you had engaged in another act of criminal sexual assault, not with a child on this occasion but with an adult, and the victim's mother came to hear of this. She told the victim about it and it brought back powerfully and painfully to the victim what you had done to her in 2010 - and then she went to the police. 19. The Court has been provided with a victim impact statement. It sets out how her life has been substantially damaged by what you did to her, and it confirms observations of the Royal Commission to which I referred during the course of the hearing today, and of statements made by the Court of Criminal Appeal, as to how sexual assaults on children can have catastrophic effects on those children. Amongst other things, as a direct result of what you did to this child, she has tried twice to take her life. 20. Your subjective circumstances (that is, the things about you, your background) have come to the Court second‑hand. They have come through the report of Dr Furst. From that report, I am satisfied on the balance of probabilities of the following facts: that you are now 48 years of age; that you have had two substantive relationships from which children have been born; that you left school at year 9 having apparently not enjoyed school very much; that you have been a hardworking man since you left school; that you had a terrible experience in 2003 of watching a close personal friend be crushed to death in the workplace; and that you have developed post‑traumatic stress disorder and depression as a consequence. 21. But Dr Furst's report is problematic in other respects, which have been agitated in the exchanges between the bench and the bar table. 22. There are contradictions in Dr Furst's report. On the one hand, he says the risk of reoffending is low. On the other hand, he says there is a need for continuous intense treatment. One does not sit with the other. 23. But more importantly, Dr Furst can provide no explanation for why you sexually assaulted that child. You could offer no explanation to him and he can offer no explanation to me. You denied sexual attraction to children to Dr Furst. If you were not sexually attracted to children, why did you engage in that act of sexual intercourse with that child on that morning? 24. These are questions on which I have no assistance in the evidence whatsoever. Certainly, the post‑traumatic stress disorder and the depression that flowed from that terrible incident in 2003 has no causal connection (at least on the evidence before me) of your offending seven years later with this child. 25. It is difficult in these circumstances for me to form an opinion about your prospects for rehabilitation. 26. I do know that you have sexually offended against an adult woman in 2018. 27. There was no expression of remorse for what you have done given by you in the witness box. (At present, I cannot even see one in Dr Furst's report. But even assuming there is one in there, little weight would be given to it. The Court of Criminal Appeal has said on many occasions that a sentencing judge is entitled to treat with scepticism second-hand expressions of remorse, so, even if buried within this report, there is an expression of remorse, I would approach it with considerable scepticism.). 28. I note in that context how you persuaded the child's mother that, when the offence happened, it was a dream; and I note what you have said in your interview with police. 29. I must make a finding of your prospects of rehabilitation and, in the absence of any explanation for why a 40‑year‑old man would go into the bedroom of his stepdaughter and sexually assault her in the manner that you did, the prospects must be guarded - notwithstanding that you have not re-offended against a child. 30. At the time of your offending, you had no prior criminal record. The Court of Criminal Appeal has said that for offences of this kind, an absence of a prior record is of reduced significance - but it is still of some significance. 31. Because I do not know why you committed this offence, the sentence must fully engage specific deterrence, that is, fixing a sentence that will deter you from reoffending. 32. But more importantly, Mr Bligh, the principles of general deterrence are of paramount consideration. The sentence to be imposed on you must be one that deters others from sexually interfering with children. The Crown's written submissions contain two passages which the Court needs to remind itself of in sentencing you. The Court of Criminal Appeal in EG v R said: "General deterrence, denunciation, and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment". 1. I acknowledge immediately that in your case, the words "repeatedly" do not apply. 2. In R v Gavel, the Court of Criminal Appeal said: "This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives. Sexual abuse of children will inevitably give rise to psychological damage. In R v G, Baroness Hale of Richmond referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity". 1. You entered a plea of guilty at the first available opportunity and you will receive a 25% discount for the early plea. 2. Except for your early plea, I would have sentenced you to a term of imprisonment of 8 years. Because of the plea, the term of imprisonment is 6 years. 3. It has been submitted on your behalf that I should make a finding of special circumstances to vary the ratio of the head sentence to the non‑parole period. I decline to do so. 4. First, in R v GWM [2012] NSWCCA 240, the Court of Criminal Appeal observed that judges of this court far too often make findings of special circumstances. 5. Secondly, I am not persuaded that a longer period on parole is necessary for you. 6. Thirdly, I am not persuaded that the psychological conditions from which you undoubtedly suffer would make imprisonment for you moreharsh than for other offenders. 7. Having regard to the notion of totality, I fix a non‑parole period of 4 years and 6 months which will date from 15 June 2019 and which will expire on 14 December 2023. 8. I fix a balance of 1 year and 6 months to date from 15 December 2023 and which will expire on 14 June 2025. 9. You will now go with the officers. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 December 2019