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Boudville v The Queen

Boudville v The Queen

Case [2001] WASCA 133 26 April 2001

Criminal Liability

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BOUDVILLE -v- THE QUEEN [2001] WASCA 133

CORAM: MALCOLM CJ
WALLWORK J
MURRAY J

HEARD: 2 APRIL 2001

DELIVERED : 26 APRIL 2001

FILE NO/S: CCA 120 of 2000

BETWEEN: WILLIAM JAMES BOUDVILLE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - One count of indecent dealing and seven counts of penile sexual penetration of a de facto child under the age of 16 except for the last of the latter offences - Applicant convicted after trial - No remorse shown - Neither any of individual offences nor the aggregate sentence of 10 years' imprisonment set aside as manifestly excessive - Turns on own facts

Legislation:

Criminal Code (WA) s 329(2) and (4)

Result:

Extension of time granted
Leave to appeal refused

Representation:

Counsel:

Applicant: In person
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Unrepresented Criminal Appellants Scheme
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

D v The Queen [2000] WASCA 137
Johnston v The Queen, unreported, CCA SCt of WA; Library No 960153; 22 March 1996
Lowndes v The Queen (1999) 195 CLR 665
Podirsky (1989) 43 A Crim R 404
R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987
Trescuri v R [1999] WASCA 172
Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

Nil

MALCOLM CJ: This is an application for an extension of time within which to make an application for leave to appeal against sentence.
Following a trial in the District Court over four days the applicant was convicted by a jury on eight out of 11 counts of various sexual offences against the complainant, who was a child under the age of 16 years, except in the case of the last offence which was committed about a month after she turned 16. In the result, the applicant was sentenced to a total of 11 years' imprisonment which was deemed to commence from 4 February 2000, the date upon which the applicant went into custody after conviction. An order was made that he be eligible for parole in respect of each of the sentences which were imposed.
The offences of which he was convicted comprised one count of indecent dealing with a child under the age of 16 years whom he well knew to be his de facto child, contrary to s 329(4) of the Criminal Code and seven counts of sexual penetration of the complainant, being a child under the age of 16 years whom he then well knew to be his de facto child, contrary to s 329(2) of the Code.
The applicant was sentenced to imprisonment for a total of 11 years on 9 February 2000. His notice of application for leave to appeal against sentence was dated 30 May 2000, some four months out of time. An application for an extension of time within which to appeal dated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boudville v The Queen

Details

AGLC: Boudville v The Queen [2001] WASCA 133
Case: [2001] WASCA 133
Decision Date: 26 APRIL 2001

CaseChat Overview and Summary

The case of Boudville v The Queen was heard in an Australian court, where the applicant, Boudville, was convicted on one count of indecent dealing and seven counts of penile sexual penetration of a de facto child under the age of 16. The court was required to determine whether the sentence of 10 years' imprisonment was manifestly excessive and whether the individual offences warranted separate consideration in this regard. The applicant did not display any remorse for his actions, which was a significant factor in the court's deliberations.

The legal issues before the court were twofold: firstly, whether the sentence imposed was manifestly excessive in light of the individual offences and the overall circumstances, and secondly, whether the court should consider the cumulative effect of the individual offences in assessing the severity of the sentence. The court examined the nature and severity of each offence, the characteristics of the applicant, and the impact of the crimes on the victim, among other factors. The court was also required to consider whether the sentence was disproportionate to the gravity of the crimes committed.

The court found that neither the individual offences nor the aggregate sentence of 10 years' imprisonment was manifestly excessive. In reaching this conclusion, the court considered the nature and severity of each offence, the characteristics of the applicant, and the impact of the crimes on the victim. The court also noted that the applicant had shown no remorse for his actions, which was a relevant factor in determining the appropriate sentence. The court found that the sentence imposed was proportionate to the gravity of the crimes committed and that the applicant's conduct warranted a significant period of incarceration.

The court's decision was based on its assessment of the individual offences and the overall circumstances of the case. The court found that the sentence imposed was not manifestly excessive and that the applicant's conduct warranted a significant period of incarceration. The court did not set aside the sentence but rather upheld it as an appropriate response to the applicant's crimes. The final orders of the court were to maintain the sentence of 10 years' imprisonment for the applicant.

Orders