Director of Public Prosecutions v Boodle
[2015] VCC 1312
•17 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00786
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW WILLIAM BOODLE |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 September 2015 | |
CASE MAY BE CITED AS: | DPP v Boodle | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1312 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. O'Halloran | |
| For the Accused | Mr P. Adami |
HER HONOUR:
1 Andrew William Boodle, you have pleaded guilty to one charge of sexual penetration of a child under sixteen (Charge 1) and six charges of indecent act with a child under sixteen (Charges 2 to 7). The maximum penalty for each charge is ten years' imprisonment.
2 The prosecution sought an order for the taking of a forensic sample from you. The making of that order was not opposed.
3 The circumstances of your offending are set out in detail in the Amended Prosecution Opening upon Plea which was tendered as Exhibit A. The offences occurred between 9 July 2008 and 30 April 2014. You were thirty-six to forty-two years old at that time. When I am summarising the circumstances of your offending, I will use a pseudonym for each of your victims to protect their privacy.
4 Charge 1, of sexual penetration of a child under sixteen, is representative of two occasions. You offended against Sally between 9 July 2008 and 9 July 2009. She was fourteen. She first met you at a barbecue. She told you she was fourteen. You then chatted together on Facebook. You asked her about her sexual activities and told her you had set up a massage business. You asked her to come to your house for a chat and massage. She did so and noticed that your two children were not at home. You asked her if she wanted to have sex. She said, “No”. You both went into your bedroom and took off your clothes and began kissing. You had penile/vaginal intercourse for about 20 minutes. You ejaculated inside the victim. This is the occasion for which you will be sentenced in respect of Charge 1.
5 You talked to Sally a couple of more times on Facebook and met again about six months after this first occasion. You had your two children with you. You had bought a pregnancy test at Sally’s request. You had dinner and put your children to bed. Then you and Sally had sexual intercourse.
6 Charge 2, of indecent act with a child under sixteen, concerns your offending against Amy on 31 December 2009. You were friends with Amy’s mother. Amy was twelve. You were at a New Year’s Eve party at Amy’s home. You sat with Amy and her sister, Isla. You sat on the ground between Amy and her sister. You stroked Amy’s shoulder and chest area, then the top of her breast area before rubbing her left breast under her clothing. You “groped” her breast about four more times. Before leaving, you told her not to tell anyone and that she would regret it if she did and that there would be consequences.
7 Charge 3, of indecent act with a child under sixteen, is representative of two occasions between 31 October 2009 and 29 September 2012 when you offended against Amy’s sister, Isla. You will be sentenced in respect of an occasion when she was fifteen years old. Isla was babysitting your two children. When you got home, you offered to give her a massage. She agreed. She had only her underwear on. You massaged her buttocks, then touched her vagina on the outside of her underwear. You continued to massage her legs and rub your hand over your vagina. She said to stop and you did.
8 Charge 3 is also representative of your offending against Isla at the New Year’s Eve party on 31 December 2009. While you were sitting between the sisters, you rubbed Isla’s vagina over her shorts. Isla recalls that at a later time you apologised to her.
9 Charge 4, of indecent act with a child under sixteen, concerns a separate occasion between 1 January 2011 and 29 September 2012 when you offended against Isla. She was fourteen or fifteen. She had stayed overnight after babysitting your children. She slept on a couch. She was woken by you massaging her back under clothing. Your penis was exposed through your dressing grown.
10 Charge 5, of indecent act with a child under sixteen, concerns your offending against Sarah between 6 March 2010 and 30 March 2010. Sarah was six. You were friends with her mother. Sarah was staying overnight. She told you she was having trouble sleeping. You rang her mother to come and collect her. You were both sitting on the couch. You put your hand under her singlet and rubbed her stomach. You then put a hand under her underwear and rubbed her vagina. You took your hand away when her mother arrived.
11 Charge 6, of indecent act with a child under sixteen, concerns your offending against Josie. You were friends with Josie’s mother. On 16 December 2012, Josie was eight and came to your house for your son’s birthday party. During the party you pulled her aside, hugged her and rubbed your hand over her vagina.
12 Charge 7, of indecent act with a child under sixteen, concerns your offending against Josie’s sister, Brooke, between 1 July 2013 and 30 April 2014. Brooke was eleven and came to your house for a massage after she had been injured riding her bicycle. During the massage, you moved her underwear and using one or two fingers rubbed around her vagina in a circular motion for about five seconds and then asked her how it felt. She asked you to stop and you did.
13 victim impact statements have been received from Sally (Exhibit B), Josie (Exhibit F), Brooke (Exhibit G), Josie and Brooke’s mother (Exhibit D), Sarah (Exhibit E) and Sarah’s mother (Exhibit D).
14 In October 2014 Sarah’s mother phoned you. She spoke of you putting your hand down Sarah’s pants. You said you could not remember but thought it would be true. Sarah then made a statement to the police. You were interviewed on 12 October 2014 and 12 January 2015. You made admissions including significant admissions in respect of a number of charges. You voluntarily disclosed that you had also offended against Isla, which led to the detection of offences against Isla and Amy.
15 You were charged in January 2015 and indicated your plea of guilty to the current charges at a committal mention.
16 In sentencing you, I have taken into account your personal circumstances. Your personal circumstances were outlined by your counsel and are also set out in a report from Mr Patrick Newton, clinical and forensic psychologist, dated 20 July 2015. There are some differences between your counsel’s chronology and Mr Newton’s report in respect of certain dates and other details. From Mr Newton’s report it appears that you have had problems with your memory particularly in relation to dates and details of certain experiences in your life. None of these differences are material and the outline of your personal circumstances is generally consistent.
17 You are now forty-three. Your parents separated when you were six years old. At some point your family moved from Queensland to Victoria. You had struggled at school and repeated Grade 3 when you moved to Melbourne. You were in your mother’s care but had regular contact with your father. You continued to have difficulties with academic work and making friends but had no behavioural problems. You completed Year 11. You commenced an apprenticeship as a cook which you did not finish. At around that same time you met your ex-wife. You completed Year 12 at a TAFE and then did a course in information technology. You married in 1997 and have two children who were born in 2001 and 2003. You worked in the IT field until you were retrenched in 2005. You had various periods of unemployment and employment. You separated from your ex-wife around 2007. You took on the care of your children, although they had regular contact with their mother. You did a massage course and started a massage business at home.
18 In 2012 you commenced a relationship with your current partner who is vision impaired. She and your father were in Court to support you. Both your partner and your father provided written references.
19 You have no prior criminal history.
20 In his report Mr Newton says that you have had symptoms of depression at various times but that you were not labouring under the effects of any mood or other disorder at the time of your offending conduct. Mr Newton describes you as a “discursive and rather distractible individual”. He says you are not psychotic and that your moral reasoning is not impaired. He assesses you to be of somewhat below average intelligence.
21 It is Mr Newton’s opinion that your personality is disordered and dysfunctional. He says that the difficulties you have had have been part of your make up since childhood and have affected you across your life. He says these difficulties impact on your ability to sustain mature intimacy. Mr Newton says your difficulties are such that they meet the diagnostic criteria for a “Personality Disorder with mixed avoidant and dependent features”.
22 Mr Newton also says that you evidence “unequivocal sexual deviance”. He describes your attitudes and experiences in relation to prepubescent and pubescent girls. Mr Newton says:
“He attributes to them a precocious readiness for sexual contact and, while he now states that he understands that sexual contact between adults and children is harmful, his insight into this matter remains formative at best.”
23 Mr Newton’s opinion is that your offending and the “dysfunctional arousal patterns intrinsic to it” are sufficiently severe to warrant a diagnosis of “Paedophilic Disorder, non-exclusive type, sexually attracted to females”. Mr Newton says there is a “compelling need” for you to participate in specialist sex offender treatment programs. Having considered the historical risk factors and “dynamic” risk factors, Mr Newton’s opinion is that you are at moderate to high risk of reoffending.
24 Mr Newton suggests the most significant protective factor would be the provision of specialist sex offender treatment with further protection being achieved by the deterrent aspects of sentencing and requirements of sex offender registration. Mr Newton expects that if you participate actively in treatment, it would be expected that the level of risk would be reduced in the medium term. Mr Newton suggests that treatment should take place as soon as practicable and that it is likely given your personality style and risk factors that a relatively extended period will be required. He suggests that there would be some merit in considering having you subject to a relatively lengthy period of supervision in the community so that participation in treatment can be mandated and progress supervised. Mr Newton recommends that you also have treatment to address your dysfunctional personality traits and social skill deficits.
25 In sentencing submissions your counsel accepted that your offending was serious and accepted the impact on the victims. Your counsel said that it was accepted that the problems described by the victims in their victim impact statements most likely resulted from your offending. Your counsel submitted that in view of the matters in mitigation and the need for treatment as set out in Mr Newton’s report, the appropriate sentence would be a sentence of imprisonment to be followed by a lengthy community correction order.
26 In mitigation your counsel relied on a number of factors including:
(a)your plea of guilty;
(b)your admissions and co-operation;
(c)your voluntary disclosure leading to the identification of two victims;
(d)your remorse;
(e)your lack of prior criminal history;
(f)your good prospects of rehabilitation;
(g)conditions in custody; and
(h)the application of the fifth of the principles set out in R v Verdins [2007] 16 VR 269.
27 Andrew Boodle, you have engaged in very serious offending. Any sexual offending against children is serious. In this case, there were six victims between six and fifteen over almost six years. You repeated your offending in some cases. Your offending against Sally was particularly serious involving sexual penetration. There was a very big age difference and you had unprotected sex with her. You took advantage of her youth, as you did with all your victims. Your offending in respect of other victims involved gross breaches of the trust of the children and their parents. From what you told Mr Newton, you took any opportunity you could to engage in sexual activity with these children for your own sexual and emotional gratification. Your offending was sporadic but continued despite your relationship with your current partner. Your moral culpability is high.
28 The harm suffered varies between the victims according to the victim impact statements provided, but they and their mothers describe their anger, feelings of betrayal and difficulties in trusting others. The impact that this sort of offending has on victims and their families is profound. It is this sort of harm that Parliament is trying to prevent in making it an offence to engage in sexual activities with children before they are old enough to consent.
29 Your offending must be strongly denounced and justly punished. Others must be deterred from sexually offending against children.
30 An assessment of your prospects of rehabilitation is relevant to the issue of community protection, the need for specific deterrence and mitigation of sentence. From her reference, you have been in a mutually supportive relationship with your partner. You have support from your father who regards this offending as out of character. You have expressed remorse to the police and in a letter to the court. You pleaded guilty and made admissions. These are positive indications but the duration and nature of your offending, your limited insight and moderate to high risk of recidivism lead me to conclude that your current prospects of rehabilitation are low to moderate. I accept that your prospects of rehabilitation would be likely to improve with the appropriate sex offender treatment. I accept Mr Newton’s opinion in respect of a period of supervision in the community whilst you are having treatment, but in my view that can potentially be achieved on parole if parole is granted.
31 I have given consideration to sentencing you to a term of imprisonment to be followed by a community correction order. You have been assessed as suitable for such an order. My conclusion is that the objective seriousness of your offending is such that imprisonment and a community correction order could not properly reflect denunciation, just punishment and general deterrence. I consider that specific deterrence has a significant role to play in sentencing you to try and deter you from further offending. It is to be hoped that your desire to avoid further offending and punishment will lead you to engage in sex offender treatment.
32 I have taken into account a number of matters in mitigation. You are entitled to a significant discount for your plea of guilty. That plea of guilty has had considerable benefit in saving the trauma and expense of a contested committal and a trial. I accept that your plea of guilty is also an expression of your remorse.
33 You made significant admissions and gave co-operation to the police. You gave particularly significant co-operation in respect of the voluntary disclosures. You have no prior criminal history. Conditions in custody have been difficult, particularly since 30 June 2015 and I accept that you will be serving your time in prison in protection, which is more difficult.
34 Your counsel made submissions in respect of conditions in custody. You have been in custody for a long period already. There is nothing in your counsel’s submissions or in Mr Newton’s report as to whether or in what way prison is or would be more difficult for you because of your personality disorder. I do not accept that sentence should be moderated in application of the fifth of the Verdins principles.
35 You will be sentenced to imprisonment in respect of Charges 1 and 2. Accordingly you will be sentenced as a serious sexual offender in respect of Charges 3, 4, 5, 6 and 7. Where you are being sentenced as a serious sexual offender, community protection must be the principal purpose of the sentence to be imposed. I do not intend to impose a disproportionate sentence for that purpose but I do intend to give significant weight to community protection in the sentences imposed. The sentences are to be served cumulatively unless otherwise ordered. To give full effect to that provision would in my view lead to a sentence which would offend against the principle of totality. Accordingly I have ordered partial cumulation in respect of those matters.
36 You have pleaded guilty to one Class 1 offence and 6 Class 2 offences. Accordingly you will be subject to the requirements of the Sex Offenders Registration Act and will be required to comply with the requirements of that legislation for life. Shortly you will be provided with documentation in respect to your responsibilities under that legislation and will be asked to sign to show that you have received that documentation.
37 Andrew Boodle, you are convicted and sentenced as follows:
38 Charge 1, sexual penetration, you are convicted and sentenced to three years and six months' imprisonment.
39 Charge 2, indecent act with a child under sixteen, you are convicted and sentenced to ten months' imprisonment.
40 Charge 3, indecent act with a child under sixteen, you are convicted and sentenced to ten months' imprisonment.
41 Charge 4, indecent act with a child under sixteen, you are convicted and sentenced to four months' imprisonment.
42 Charge 5, indecent act with a child under sixteen, you are convicted and sentenced to 12 months' imprisonment.
43 Charge 6, indecent act with a child under sixteen, you are convicted and sentenced to eight months' imprisonment.
44 Charge 7, indecent act with a child under sixteen, you are convicted and sentenced to 15 months' imprisonment.
45 The sentence on Charge 1 is the base sentence. Four months of the sentence on Charge 2; four months of the sentence on Charge 3; one month of the sentence on Charge 4; five months of the sentence on Charge 5; three months of the sentence on Charge 6; and seven months of the sentence on Charge 7 are to be served cumulatively on each other and on the sentence on Charge 1. The total effective sentence is a term of imprisonment of five years and six months. I fix three years and nine months as the period you are required to serve before being eligible for release on parole.
46
I declare that you have served 340 days of this sentence by way of
pre-sentence detention.
47 But for your plea of guilty, I would have sentenced you to a term of imprisonment of seven years and nine months with a non-parole period of five years and nine months.
48 I make the order for the taking of a forensic sample from you that was sought. I make that order because of the seriousness of the offending and because the making of the order was not opposed.
49 Mr Boodle, the authorities will come and take a sample from you by way of a saliva swab. You are required to co-operate with the authorities. If you do not co-operate they are entitled to use reasonable force and to take a blood sample. I am sure that you will co-operate.
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