Boudville v The Queen - [2001] WASCA 133

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 22 December 2000 was filed on 16 January 2001. The application for an extension of time was made on the grounds that the applicant had legal aid for his trial and when he was convicted he was advised that it would cost him $6,000 to appeal. As the applicant is a pensioner he could not afford this amount and applied for legal aid. He made three attempts to obtain legal aid but legal aid was refused on each occasion, the last time being in May 2000. He subsequently obtained the necessary forms to make his application personally. These were sent to the Court from Casuarina Prison by mail. The applicant maintains that no‑one informed him of the time limited to make his application and he believed he should try to obtain legal aid to have a lawyer lodge the appeal papers on his behalf. He subsequently received assistance from the Unrepresented Criminal Appellants Scheme which prepared some further and better particulars of his ground of appeal dated 11 November 2000. The application is now made on the single ground that:
"The sentence imposed by the learned sentencing Judge was manifestly excessive in all of the circumstances having regard to:
a.The failure to give sufficient weight to the antecedents of the applicant; and
b.The starting point adopted was higher than normally adopted for offences of a similar nature."
The Scheme also prepared an application for an extension of time dated 22 December 2000 which was filed on 16 January 2001. The application for an extension of time was not opposed.
The complainant was the second youngest of five children. She was born on 22 May 1982. The applicant formed a relationship with the complainant's mother and married her some 13 years prior to the time at which he was sentenced. As the learned sentencing Judge noted, the applicant had become an important figure in the complainant's life when she was still a young child. A very close relationship was developed with the complainant and her younger brother.
The learned Judge found that all of the time that the applicant lived with the family, there was no question that he was regarded as a father figure by the complainant and her brother. The learned Judge observed that it may well have been that this was the case in relation to her older siblings as well. The complainant referred to the applicant as "Dad". The applicant's own evidence at the trial was that he and the complainant were extremely close and that he regarded her in every respect as being his daughter and his "own flesh and blood".
The applicant's offending fell into two distinct episodes of sexually inappropriate and criminal behaviour. The indecent dealing the subject of count 1 occurred between January 1994 and May 1995 when the complainant was aged 12 or 13. Together with her mother and younger brother, she was in the habit of accompanying the applicant to "swap meets" where he would buy and sell various goods in order to make money. It was necessary to arrive at the swap meet in the early hours of the morning in order to obtain a prominent position as a seller and set up tables upon which to display the items for sale.
On the occasion the subject of count 1, the applicant, his wife and the two children arrived at Karrinyup at about 4.00 am. It was the habit of those who went to doze or sleep in the car until it grew light and the swap meet began. On the day in question the complainant's younger brother was asleep on the front seat of the car. The complainant's mother was asleep in the back area of the station wagon on one side of the applicant. The complainant was on the other side. The applicant's evidence was that he did not sleep well in the car as he suffered from claustrophobia. The complainant's mother gave evidence that she was a heavy sleeper. The complainant woke up to find the applicant's hand under her top and her bra fondling her breasts. She pushed the applicant's hand away, but he persisted and put his hands down her pants under her underpants and touched her vaginal area. The complainant turned over and the applicant desisted. The applicant was acquitted of a second similar offence, which was count 2 on the indictment.
The offence which commenced the second episode was committed almost two years later, when a more serious cycle of offending began. All of the remaining counts on the indictment concerned penile sexual penetration of the complainant. At the relevant time the complainant's mother was a keen and committed bingo player. She attended bingo up to four nights a week, both as a player and someone who "checked" at the bingo. Other members of the family including the applicant, the complainant and her younger brother were also involved. After a time, on Monday and Wednesday evenings in particular, the applicant, the complainant and her brother ceased to attend the bingo.
The offence the subject of count 3 occurred on a date unknown between 31 December 1994 and 1 January 1996, which was the first act of sexual penetration. This occurred while the complainant's mother was at bingo. The applicant called the complainant into his bedroom, telling her that he had a surprise for her. When she came into the room, the applicant took off his clothes and told the complainant to do likewise. She did so and then lay on the bed. The applicant then proceeded to put lubricant or cream on his penis before lifting the complainant's legs up and placing his penis into her vagina. After some minutes he withdrew and ejaculated onto the complainant's stomach. He wiped the semen away using a towel, which according to the complainant he disposed of later that evening in a bush area across the road from the family home.
Count 4 also occurred on an evening when the complainant's mother was attending bingo. The applicant called the complainant into his bedroom and on this occasion placed some pillows under her buttock area as she lay on a low bed in the room. Both were naked. The applicant proceeded to place lubricant on his penis before putting it into the complainant's vagina. After some minutes he withdrew and again ejaculated onto the complainant's stomach.
Count 5 occurred on a date unknown in 1997. The offence also occurred in the applicant's bedroom. The applicant placed some cushions under the complainant's buttocks, put lubricant or cream on his penis and then inserted it into the complainant's vagina and sexually penetrated her.
Count 6 occurred on a date unknown between 28 February 1997 and 1 May 1997 on an occasion some two or three weeks after the applicant had purchased some underwear for the complainant. This consisted of a singlet top and G‑string underpants. The applicant instructed the complainant to put the underwear on. He then lay her down on his bed. Although he left the top of the underwear on the complainant, he removed the underpants before placing his penis into the complainant's vagina and sexually penetrating her.
The offence the subject of count 7 occurred in either late July or early August 1997, which was about two or three weeks before the complainant noted that she was late in getting her period. She was concerned because she believed that she may be pregnant as a result of the applicant's sexual conduct towards her. On the night in question the applicant called her into his bedroom where, at his instruction, she lay on the bed naked. The applicant then proceeded to place his penis in her vagina and sexually penetrate her. This offence occurred when the complainant's mother was not at home.
The offence the subject of count 8 occurred on the occasion of the applicant's birthday on 26 January 1998. The complainant had no money to buy the applicant a birthday present. When she brought this to the applicant's attention, he suggested that the complainant have sexual intercourse with him by way of a birthday present. Sexual intercourse occurred while her mother was at bingo on that occasion.
The final count on the indictment of which the applicant was convicted was count 11 which occurred on Saturday 20 June 1998. The complainant's mother was again at bingo when the applicant called the complainant into his bedroom. Once again, he put cream or lubricant on his penis and proceeded to place his penis in the complainant's vagina before withdrawing and ejaculating onto her stomach. On this occasion the complainant recalled that the applicant wiped his semen away with a black and white Bad Boy towel which belonged to one of the boys in the house. This last occasion of sexual penetration was the only time that the complainant was over 16 years of age, having turned 16 the previous month.
A short time before the applicant's arrest on 1 July 1998 the complainant had run away from home. The learned Judge concluded that the continuing sexual abuse which the applicant had perpetrated upon the complainant was a cause of distress to her. She confided in a friend about what he had been doing. It appears that the friend informed the complainant's employer and the matter eventually came to the notice of the police. The police spoke to the complainant and took a statement from her. One of the investigating officers enquired whether or not the complainant would be willing "to wear a wire" in order to see whether further evidence regarding the allegations she had made could be obtained. After the necessary authority was granted, a recording device was fixed to the complainant and monitored by a police officer in a nearby vehicle. Police were then conducting covert surveillance upon the applicant.
That night the applicant, accompanied by the complainant's brother, collected the complainant from her workplace and, after obtaining something to eat, proceeded to the family home. The complainant's mother was again at bingo. After the complainant had showered and her younger brother had gone to bed, there was a recorded exchange between the applicant and the complainant. At one point the applicant asked the complainant, "Are we on tonight?". The complainant replied, "What?" and the applicant repeated, "Are we on tonight?". The complainant gave evidence that the applicant had been asking her to have sexual intercourse with him one more time all week. She had deliberately not refused the request because she knew that she would be wearing a wire later and she knew that, if she had refused him earlier, he may have been unlikely to ask her for sex on the occasion in question when she was wearing the wire. The learned Judge concluded that the jury had clearly rejected the applicant's explanation that the words he used on the tape were simply a manner of speech that he employed by virtue of his cultural origins. He claimed that the enquiry was related to whether the complainant would finish marking some items which were on a tray on his bed to be prepared for sale at a swap meet. The police who attended later that evening saw no tray of such items on the bed or anywhere else in the house.
On the same tape the complainant asked, "What if Mum finds out?". The applicant replied to the effect of, "Finds out what?". The complainant said words to the effect of, "Find out what's been happening". The applicant then commented, "She won't find out anything" and, "How will she know?". The applicant said this was a reference to the complainant being seen naked by him in the house at about that time. The applicant claimed that he was very upset and affronted by this and informed the complainant that he would tell her mother. According to the applicant, the complainant begged him not to do so and he told her that he would not do so, although he later said he had told the mother.
The Crown contended before the jury that they should accept that the exchange related to the complainant's fear that her mother would find out about the illicit sexual relationship and the applicant's misconduct. Shortly after the conversation I have related took place, the police attended at the house with the consequence that the applicant was arrested.
At the time he came to be sentenced, the applicant was 48 years of age, having been born on 26 January 1952 in Burma. He left school at the age of 16 years and began an apprenticeship as an electrician. It was not clear whether the apprenticeship was completed. He arrived in Western Australia in September 1972 at the age of 20. The applicant, his mother and sister have all became Australian residents. The applicant became an Australian citizen in 1974. He was employed as a fireman with the Western Australian Government Railways for some three years. He has also worked in a number of engineering businesses. He married after his arrival in Australia but subsequently divorced. He has two adult sons from that marriage and the learned Judge commented that he had a good and close relationship with his sons.
Some years ago he was involved in a bad motor vehicle accident which left him with injuries that prevented him from continuing in employment. The applicant is currently an invalid pensioner who suffers from headaches, intermittent blackouts and a degree of memory loss. He takes medication for these conditions as well as for asthma. The learned Judge accepted that the applicant still enjoyed a good relationship with his wife, who remained supportive of him and was present in court after giving evidence on his behalf at the trial. The applicant also enjoys a good relationship with the complainant's younger brother as well as with one of her older brothers, both of whom gave evidence on behalf of the applicant at his trial.
Apart from the continuing effects of the motor vehicle accident which require some continuing medical attention, the applicant was in generally good health. He did not have any problems with alcohol abuse or addiction to any illicit substances. This made it more difficult for the learned sentencing Judge to understand why he engaged in such highly inappropriate and criminal behaviour.
The applicant came before the court as a first offender with only one minor traffic conviction. At the same time, however, the course of sexual offending which he adopted in respect of the complainant constituted the commission of a series of repeated serious sexual offences involving a very substantial abuse of trust and taking advantage of a vulnerable young girl, who regarded him as her father. The learned Judge found, however, that the applicant had demonstrated no remorse in respect of the offences and did not seek any mitigation in that respect.
This was a case in which the complainant had to endure the giving of evidence, which was taken by way of closed‑circuit television facilities, but was nonetheless a difficult and painful exercise for her. In this context, the learned Judge commented that:
"It is not to your credit that during the course of your evidence, and indeed the evidence of your wife, you endeavoured to paint a rather less than flattering picture of the complainant. You attempted on several occasions to suggest that she behaved in a sexually inappropriate way and for that reason her behaviour, according to you, needed considerable monitoring."
Sadly, many members of the family have turned against the complainant as a result of her bringing these matters to light, with the result that she has become somewhat socially isolated. In her sentencing remarks, the learned Judge said:
"The complainant's victim impact statement indicates that you were quite obsessive in monitoring her movements, as a result of which she ceased her education rather earlier than she might have done and began working. It would also seem that she was somewhat socially isolated as a result of your attitude and she did not enjoy the freedom and sense of fun that many young adolescent girls, and boys for that matter, should enjoy in what is an all too brief period in their lives before they take on the responsibilities of adulthood and all that that entails.
There can be no doubt that your systematic sexual abuse of the complainant over about an 18‑month period, which covers the time‑frame of the bulk of your offending, is extremely serious. It has clearly had a devastating impact upon the life of the complainant, who is now estranged from both you and her family. It has also split a family in a very obvious and tragic way and one cannot say whether that rift will ever be healed.
Your behaviour is rendered worse because it is a gross abuse of the trust which was reposed in you as the father figure in the complainant's life. She not only trusted you, but it is evident that she loved you and cared for you greatly. You abused this love and trust and distorted the complainant's feelings for you. You sexually abused her in situations where you knew full well there would be little chance of detection as your wife was absent on most of the occasions of the abuse.
There appears to be little or no explanation for your aberrant behaviour towards the complainant other than a deviant desire to obtain sexual gratification through sexual abuse of a young girl. You systematically went about isolating the complainant from her peers and others, no doubt so that she would be more readily available for your sexual attentions when you chose to inflict them upon her.
There is an element of corruption of a young girl and a corruption of her sexuality in your offending which cannot be ignored. You showed an arrogant disregard not only for the complainant's emotional and psychological wellbeing but you also placed her at physical risk of pregnancy by having repeated unprotected sexual intercourse with her. Sexual penetration of a child under 16 is an extremely serious offence. Indecent dealing of a child under the age of 16 years is also regarded by the law as serious offending."

The seriousness with which the offences committed by the applicant are regarded when sexual penetration of a child under the age of 16 is involved is marked by the fact that the offence carries a maximum penalty of imprisonment for 20 years. The penalty for indecently dealing with a child under the age of 16 years, where that child is a de facto child, is imprisonment for 10 years. Even where the child is over the age of 16 years, the offence of sexual penetration of the child where the offender is aware that the child is a de facto child is imprisonment for 10 years.
The learned sentencing Judge rightly observed that it is not feasible or desirable to establish a tariff for sexual offences. Attention must be given to the range of sentences commonly imposed. In such cases, the dominant sentencing considerations are punishment and general and personal deterrence: R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987; and Johnston v The Queen, unreported, CCA SCt of WA; Library No 960153; 22 March 1996.
In Woods v The Queen (1994) 14 WAR 341 the Court pointed out that, in the case of a single act of aggravated sexual assault by penile penetration of a child under the age of 16 years, it is not unusual for the court to impose a sentence of seven years or thereabouts, and a sentence of six years is quite common. Where there is a series of offences, the criminality is regarded as being much higher. Sexual assaults by an adult upon young children within a family circle involve the taking of advantage of a position of trust and authority. One major reason for this is that victims are greatly traumatised by such offences. In the present case, the offending occurred over a period of approximately 18 months, after a gap of some two years following the commission of the offence the subject of count 1 on the indictment. I note that the learned Judge was of the opinion that:
"… no doubt in the desire to keep the family unit together and also because she still seemed to harbour affection for you, the complainant was not inclined to complain for quite some time.
In the end it is apparent that she could no longer endure your unwanted sexual attentions and invasion of her privacy. It is not to your credit that although you could hardly have failed to appreciate that you were abusing the complainant, you still persisted in attempting to persuade her to have sexual intercourse with you right up until almost the time of your apprehension and arrest. The fact that the complainant ran away from home must have, at the very least, caused you concern and ought to have, in all the circumstances, alerted you to the trauma that you were inflicting upon her. Even after that occurred you still persisted in your desire to continue your illicit sexual relationship with her.
It is an aggravating feature of your conduct that it involves sexual abuse of a particularly intimate nature on a young girl who was especially vulnerable as she was in your case. As I have said, you stood in a position of trust towards the complainant and you abused that trust in a most significant way over a period of time. It is difficult to know, if one can ever know, what the future effect, if any, will be of behaviour of the sort in which you have engaged upon the complainant."
The learned Judge approached the sentencing task on the basis that the sentences imposed should be proportionate to the degree of criminality involved taking into account that the severity of a term of imprisonment increases exponentially as the criminality increases. This impact, of course, could be tempered by the application of the totality principle, although the criminality of the offender is higher where there is a consistent course of sexual abuse involved: cf Podirsky (1989) 43 A Crim R 404. The applicant was sentenced to imprisonment for one year in respect of the offence the subject of count 1. In respect of count 3 the sentence imposed was one of imprisonment for four years to be served cumulatively upon the sentence imposed in respect of count 1. In relation to counts 4 and 5, the applicant was sentenced to imprisonment for four years in each case to be served concurrently with one another and concurrently upon the sentences previously imposed. In respect of counts 6, 7 and 8, her Honour sentenced the applicant to imprisonment for four years in each case to be served concurrently with each other but cumulatively upon the sentences previously imposed. In respect of the offence the subject of count 11 on the indictment, the applicant was sentenced to imprisonment for two years to be served cumulatively upon the other sentences. The total of the sentences imposed was imprisonment for 11 years to commence from 4 February 2000. An order was made that the applicant be eligible for parole. The learned Judge made it clear that she had structured the sentences in this way to take into account and place emphasis upon the totality principle in the sentencing process.
A Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. There must be some identifiable error in the exercise of discretion before the Court can interfere: Lowndes v The Queen (1999) 195 CLR 665 at [15]. In my opinion, in passing sentence, the sentencing Judge gave appropriate weight to all of the applicant's antecedents and the relevant circumstances. I am quite unpersuaded that, whether looked at individually or collectively, the sentences imposed were manifestly excessive. Where there are numerous offences of aggravated sexual assault by penile penetration involving a girl under the age of 16 years, total sentences within the range of nine to 11 years are commonly imposed: D v The Queen [2000] WASCA 137 at [11] - [13] per Miller J. Sexual assaults on young children within a family have attracted sentences of between eight and 12 years or more in total, even where the offender has pleaded guilty and demonstrated remorse: Woods v The Queen (1994) 14 WAR 341 at 354 - 357 per Anderson J; and see Johnston v The Queen, supra, per Anderson J at 5; and Trescuri v R [1999] WASCA 172 at 6 - 7 per Anderson J ( with whom White and Ipp JJ agreed). In my opinion, given

the circumstances of this case which I have outlined, the sentences imposed, whether looked at individually or in their totality, were well within the range of a sound exercise of the sentencing discretion.

For these reasons, I would grant the extension of time, but refuse the application for leave to appeal against sentence.
WALLWORK J: I agree with the reasons for judgment of Malcolm CJ and to the orders proposed by his Honour.
MURRAY J: I agree with the reasons of Malcolm CJ and with the orders proposed by his Honour. I have nothing to add.