R v Blaikie

Citation: R v Blaikie [2024] NSWDC 67
Court: District Court of New South Wales
Date: 15 March 2024
Judge(s): Priestley SC DCJ

Background

A 79-year-old man appeared for sentencing after a jury found him guilty of six child sexual offences committed in late 2001 and early 2002, when he was 57 or 58 years of age. The offending took place in Ballina, where the offender had contact with two sisters, aged 11 and 9, through a friendship with their grandfather. The offences were committed over what the court assessed as a relatively confined period, from approximately 26 December 2001 to 22 March 2002.

The offender faced two counts of sexual intercourse with a child (digital penetration of each complainant), one count of assault with intent to have sexual intercourse with a child under 10, and three counts of aggravated indecent assault. The offending involved a deliberate ruse to gain access to the children, including a pretence of taking measurements to make swimwear. Because the offences were committed prior to the introduction of standard non-parole periods, none applied.

The offender had been in custody for periods totalling well over a year by the time of the sentencing hearing on 8 March 2024. The parties agreed the sentence should be backdated to 26 February 2023.

Legal Issues

• What was the appropriate objective seriousness of each of the six offences?
• How should the aggregate sentence reflect the totality of the offending without producing a disproportionately harsh result?
• Whether special circumstances existed to justify a non-parole period shorter than the statutory default (three-quarters of the head sentence)?
• What indicative sentences should be assigned to individual counts within the aggregate?
• Whether count 6 (a bottom slap) warranted any penalty beyond a conviction under section 10A of the Crimes (Sentencing Procedure) Act 1999?

Decision

Objective seriousness. Priestley SC DCJ assessed counts 1 and 2 (digital penetration of each child) and counts 4 and 5 (rubbing a nipple and forcing a child to handle the offender's penis) as falling in the "high low" range of objective seriousness. Count 3 (assault with intent to have sexual intercourse with the younger child) was assessed as low in objective seriousness, given the brevity of the assault and the limited physical contact established by the evidence, notwithstanding the serious intent involved. Count 6 (a slap on the bottom) was also assessed as low, and the court convicted without imposing any further penalty under section 10A.

Objective seriousness factors. The court accepted that some planning was involved: the offender constructed a ruse involving a fishing trip and the pretence of taking measurements, complete with a tape measure. However, the court did not treat the digital nature of the intercourse as a major aggravating feature, acknowledging the principle that there is no hierarchy among forms of sexual intercourse, while giving it modest weight. The court noted the breach of trust but was careful not to double-count it, given that it was also treated as a statutory aggravating factor.

Totality and aggregate sentence. Applying the principle in R v Holder [1983] 3 NSWLR 245, the court assessed the overall criminality across all counts and adjusted the aggregate sentence to achieve an appropriate relativity between the total criminality and the total sentence. The court departed from the parties' agreed position that counts 4 and 5 should be served with total concurrency, though it acknowledged the impact of that departure was not marked. Special circumstances were found to exist, justifying a non-parole period of four years rather than the standard three-quarters proportion of the six-year head sentence.

Orders Made

• The offender was convicted of all six counts (counts 1 to 6).
• An aggregate term of imprisonment of six years was imposed in respect of counts 1 to 5, commencing 26 February 2023, with a non-parole period of four years expiring 25 February 2027 and a balance of term of two years expiring 25 February 2029.
• The offender will first be eligible for parole on 25 February 2027.
• In respect of count 6, the offender was convicted under section 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed.

Indicative sentences assigned to individual counts:

Key Takeaways

• The District Court confirmed that the principle against double-counting applies to breach of trust: where it is treated as a statutory aggravating factor, it should not also be independently weighed in assessing objective seriousness.
• No hierarchy exists among forms of sexual intercourse for sentencing purposes, though the digital (rather than penile) nature of the offending may be given modest weight in the overall assessment.
• Applying the totality principle from R v Holder, a sentencing court evaluates the overall criminality across all offences and adjusts the aggregate to avoid a disproportionately harsh cumulative outcome, even where this means departing from positions agreed between the parties.
• Special circumstances may justify a non-parole period below the standard three-quarter proportion of the head sentence; the court found such circumstances existed here without elaborating them extensively in the available text.
• Under section 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for a low-seriousness offence without imposing any additional penalty, a course taken here for the least serious count in the indictment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66A, 66B, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases:
- R v McNaughton (2006) 66 NSWLR 566
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Holder [1983] 3 NSWLR 245
- Cahyadi v R [2007] NSWCCA 1