Director of Public Prosecutions v Boyle
[2010] VCC 1144
•19 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT WARNAMBOOL
CRIMINAL DIVISION
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| KEITH PETER BOYLE[1] (a pseudonym) |
[1] pseudonym
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Warnambool | |
DATE OF HEARING: | 18 August 2010 | |
DATE OF SENTENCE: | 19 August 2010 | |
CASE MAY BE CITED AS: | DPP v. Boyle | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 1144 | |
REASONS FOR SENTENCE
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To ensure the anonymity of the complaints pseudonyms have been used for the offender and all complainants in this matter.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Kissane | OPP |
| For the Accused | Mr A. Robinson | Dwyer Robison |
HER HONOUR:
1 Keith Peter Boyle (pseudonym) you have pleaded guilty to one charge of indecent assault upon a male person under 16, one charge of gross indecency, two charges of sexual penetration of a child under 16, six charges of indecent assault, five charges of committing an indecent act with a child under 16 and one charge of an attempted indecent act with a child under 16.
2 The offending commenced in 1969 and ceased in April 2008, a period of 39 years. The victims were either directly related to you or related through marriage or linked to you through family relationship.
3 You were born on 18 October 1948 and so were aged 21 when you began offending. Your brother, David Boyle, was a child aged 5 or 6 years when he was staying with you and your wife during the September school holidays in 1969. In a workshop at the rear of the house you undid his pants and pulled his underwear down. You then rubbed your erect penis against the child's anus for 15 to 20 seconds. This is charge one on the indictment, indecent assault upon a male person.
4 Between March 1981 and February 1984 your niece, Diane Manning, then aged between 5 and 7 years, and her family, were visiting you. She was stung on the foot by a bee and you carried her to a caravan to remove the bee sting. Whilst there you undid your pants and pulled out your erect penis. You encouraged your niece to touch it and she stroked it. Whilst this was happening there was a knock at the door and the activity stopped. This is charge two, gross indecency.
5 In 1993 you were staying with the family of another niece, Tracy Boyle, aged 9. You were asleep on the couch when she woke you and you got her to lie on the couch beside you. You then placed your hand inside her underwear and rubbed the outside of her vagina. You then inserted your finger into her vagina and removed it when another person entered the room. You acted as if you had been tickling her. This is charge three, sexual penetration of a child under 16. The child being under 10 at the time is an aggravating factor.
6 You repeated this on another occasion when the complainant was 12 years old. However, that is not the subject of a charge.
7 The following six charges numbered 4 to 9 are all charges of indecent assault. The first of these, charge 4, involved Kerry Carter, then aged 17, who was the partner of your son, Andrew, and was pregnant when she and Andrew moved into the home of you and your wife in 1994. You and Kerry were in the bedroom when you placed your hand on her belly and then slid your hand up and touched her breasts. She told you it was inappropriate and to stop. You also did this on another occasion in the loungeroom but that is not the subject of a charge.
8 Charge 5 occurred on the further occasion when you and the same complainant were in the bedroom. You asked to touch her belly to feel the baby kick and placed your hand in her underwear. The complainant told her partner Andrew what had happened but he did not believe her.
9 During the same complainant's second pregnancy in 1996 you again put your hand on her stomach to feel the unborn baby kick. You slid your hand down her underwear and touched her on the vagina with your fingers. She grabbed your hand, removed it from her underwear and yelled at you. This is charge 6.
10 Approximately 5 weeks after the baby was born you visited the complainant at her home and with the baby in the room you tickled the complainant and grabbed her breasts. This is charge 7. Again the complainant told her partner and again he did not believe her.
11 In December 1996 your daughter‑in‑law, Rebecca Boyle with her husband, Simon, was staying with you and your wife at Timboon. She was pregnant at the time with Penny who was born on 29 April 1997. She was lying on a couch in the loungeroom when you approached and asked if you could feel the baby. You placed your hand on her belly and then slid it into her underwear. You then touched her vagina with your fingers. She immediately pushed your hands away. This is count 8.
12 During the complainant's later pregnancy in 2005, whilst in the kitchen at your home you grabbed her breasts and pushed yourself against her. You backed away when you heard someone enter the room. This is charge 9.
13 Anne Marie Boyle, born on 29 August 1996, is your granddaughter. She is the daughter of Kerry Carter who is the de facto partner of your son, Andrew. On an occasion when Anne Marie was 3 or 4 years old she was staying with Andrew who was living with you and your wife at the time. Whilst undressing her you lifted her top and touched her breasts. That is charge 10. You then took her pants off and touched her on the vagina and told her not to tell anyone. That is charge 11.
14 They are both charges of committing an indecent act with a child under 16.
15 Alice Smith is your step granddaughter who was staying with you when she was 7 or 8 years old. She was in bed when you came to tuck her in. You placed your hand inside her pants and rubbed her vagina. This is charge 12, committing an indecent act with a child under 16.
16 When she was aged 12 she and her family were staying with you when you called her over to a shed area where you placed her hand over her genital area and rubbed her. You then asked her to touch you and you grabbed her hand and placed it over your penis. This is charge 13, a further charge of committing an indecent act with a child under 16.
17 On an occasion when Alice Smith was 14 she was helping you in her aunt's kitchen. You rubbed her breasts over the top of her clothing, telling her it was all right, "they can't see you". The complainant told you she didn't like it and you then placed your hand inside her pants and inserted your finger into her vagina. This is charge 14, sexual penetration of a child under 16. She told you, "Don't" and moved away and you asked her if she had a boyfriend. When she replied, "Yes", you said, "Don't you love me any more?" The complainant said, "Yes, as Pop". She later told her aunt what had occurred.
18 Your granddaughter, Penny, the daughter of Rebecca Boyle, was aged 4 when, while visiting her home, you touched her vagina on the outside of her clothing. That is charge 15, committing an indecent act with a child under 16.
19 Around Easter 2008 you were visiting a house with relatives including your grandson, Joshua Boyle, who was then aged 8. You took him into a room to give him an Easter egg, made him close his eyes and then slid your hand into his pants in an attempt to fondle his penis. You were disturbed by two of Joshua's cousins. This is charge 16, an attempted indecent act with a child under 16.
20 Following several months of investigations commencing in the latter half of 2008, you were arrested on 18 May 2009 when you attended voluntarily at the police station for an interview. A committal hearing took place on 11 February 2010 and the case was listed for a trial to commence in late July. According to the records, seven adult members of your family gave evidence and were cross‑examined at the committal hearing.
21 On the day the trial was due to commence you indicated you would plead guilty to a reduced indictment and you were arraigned the following day.
22 By pleading guilty you have importantly avoided the need for your grandchildren to be cross‑examined and indeed the other witnesses.
23 I have read a large number of victim impact statements that were tendered and I have no hesitation in concluding that it would have been a very difficult experience for those witnesses to have given evidence.
24 For this, and for avoiding the need for what was to be a lengthy trial, you are entitled to a discount on your sentence, although the fact that the plea was very late in the process reduces somewhat the size of the discount.
25 A number of these victim impact statements were read to the court. A feature of many of the statements, including those not read out, was the lack of trust brought about by your offending. Another common feature was poor self‑esteem and depression suffered by the complainants. Sadly, two of the complainants have suffered very serious emotional consequences which adversely affected their personal lives at the time of the offending and continue to do so. Fear, anger and loneliness are other repercussions of your offending described by some of the complainants in their statements.
26 You have transgressed very seriously against nine members of your family, seven of whom were children at the time. The children's parents trusted you with their children and you committed a gross breach of that trust each time you offended. The other two complainants were pregnant women who were in a vulnerable condition at the time.
27 You have inflicted your criminal behaviour upon three generations of your family, your nephew and nieces comprising one generation, your daughters‑in‑law another, and your grandchildren the third. They are repugnant crimes and have caused a great deal of harm. Indeed, the harm is greater because it is intergenerational. They call for very strong denunciation by the court and a substantial prison sentence which should serve as punishment for you and deterrence to others.
28 You were recently assessed by the clinical psychologist, Mr Ian Joblin, but you were unable to outline to him any of the details of the offending and indeed you made no acknowledgement that it occurred. Accordingly, Mr Joblin was unable to offer any psychological diagnosis that might explain the offending. He described you as a hard‑working but unsophisticated man and he found it perplexing that whilst you are pleading guilty to these charges you did not acknowledge the offending to him.
29 Mr Lavery, who appeared on your behalf on your plea, described the lateness of your plea of guilty as an indication of denial by you, denial which is consistent with the lack of explanation to Mr Joblin.
30 However, you came to court yesterday and late in the piece you expressed your remorse, apologising through your counsel to the complainants. Apparently you did not understand the magnitude of the harm your offending would cause.
31 Your background is that of a poorly educated man with a lifetime of work in semiskilled occupations, working most recently as a machinery operator. You are now aged 61 and are no longer working and you spend your time caring for your wife, Veronica, who suffers severe osteo‑arthritis to both knees and is confined to a wheelchair while she awaits surgery. She also suffers from hypertension and depression.
32 You have had health problems of your own, being in remission from cancer, but you are now in good health. You and your wife suffered the tragedy of your eldest and youngest sons being killed in a car accident in 2006, those sons, Darren and Simon, being the fathers of two of the complainants, Joshua and Penny.
33 Your father died of cancer and your mother of heart disease at a relatively young age and you are not confident of living a long life yourself.
34 You live in South Australia with your wife and two sons. They will have to travel from there to visit you in prison.
35 Your counsel submitted that by the time of your release you will not pose a risk to the community as you will be some years older and your incarceration will be well‑known to all of your family. The prosecution took a different view of the risk because of the many years over which the offending occurred and your lack of insight into it and also the fact that the very late plea is not a sufficient indication of remorse for the risk to be considered minimal.
36 Having given careful consideration to those submissions, I have formed the view that while the risk of you re‑offending is not minimal, neither is it a high risk, and I take that into account in determining an appropriate sentence.
37 Currently the maximum penalty for sexual penetration of a child under 16 is 25 years. That relates to charge 3 and there is the aggravating factor that the child at the time, between 1 December 1992 and 16 January 1993, was aged under 10 years. The complicating factor is that in 1992 the Crimes Act 1991 created a maximum penalty of 20 years' imprisonment for sexual penetration of a child under 10, set out in s.45 of the Act.
38 In 1997 the legislation was amended to increase the penalty to 25 years.
39 Then in 2000 a further amendment introduced a new s.45 of sexual penetration of a child under 16 with a maximum penalty of 25 years if the child was under 10. You have been charged under this section. The same amending legislation backdated the operation of that section to 5 August 1991, before you committed the crime. This appears to conflict with s.114 of the Sentencing Act which states that where an Act increases a penalty, the increase only applies to offences committed after the commencement of the provision. However, in a footnote to s.114 inserted by the 1997 amendment the previous maximum of 20 years is set out alongside the new maximum of 25 years, suggesting there is no room for doubt as to the new increase applying to any offence committed after the commencement date.
40 While cognisant of the need to be wary of applying legislation retrospectively, I am of the view that the higher sentence of 25 years applies in this case. Having said that, because of the operation of the principle of totality in this case and the need to impose a sentence that is just in all the circumstances, the application of a higher maximum penalty for one charge will make no difference to the outcome.
41 The maximum penalties for the offences are as follows:
42 For committing an indecent act on a male person under 16, 5 years' imprisonment;
43 For gross indecency with care, supervision and authority over the child, 3 years' imprisonment;
44 For sexual penetration of a child under 16, as I said previously, 25 years' imprisonment;
45 For indecent assault, 10 years;
46 For committing an indecent act with a child under 16, 10 years;
47 For sexual penetration of a child under 16 where the offender had the care, supervision and authority over the child, 15 years, and that relates to charge 14;
48 And for an attempted indecent act with a child under 16, 5 years.
49 In relation to all charges following charge 2 you are to be sentenced as a serious sex offender pursuant to s.6D of the Sentencing Act but it is not necessary to impose a disproportionate sentence in order to protect the community.
50 I ask you to stand now, please, Mr Boyle.
51 I sentence you to the following terms of imprisonment:
52 For charge one, indecent act on a male person under 16, 12 months;
53 For charge 2, gross indecency, 12 months;
54 For charge 3, sexual penetration of a child under 16, but in this case under 10, 3 years and six months;
55 For each of charges 4, 5, 7 and 9, charges of indecent assault, 18 months;
56 For each of charges 6 and 8, further charges of indecent assault, 2 years;
57 For charge 10, a charge of committing an indecent act on a child under 16, 6 months;
58 For each of charges 11, 13 and 15, further charges of committing an indecent act on a child under 16, 18 months;
59 For charge 12, a further act of committing an indecent act on a child under 16, 2 years;
60 For charge 14, sexual penetration of a child under 16, whilst having the care, supervision and authority over that child, 2 years and six months;
61 For charge 16, a charge of attempting an indecent act on a child under 16, 12 months.
62 I make the following orders for cumulation. The base sentence for this purpose is the sentence for charge 3. Two years of the sentence for charge 14, 12 months of the sentence for charge 12, and six months of the sentences for charges 6 and 8 and three months for each of the sentences for charge 1, 2, 4, 5, 7, 9, 11, 13, 15 and 16, are to be served cumulatively upon the base sentence and with each other.
63 I make no order for cumulation in respect of charge 10.
64 This results in a total effective sentence of 10 years.
65 I order that you serve a minimum period of 7 years before being eligible for parole.
66 Under the Sex Offenders Registration Act you are to inform the police of your details every year for the rest of your life after your release from prison.
67 The prosecution seeks an order for a forensic sample to be obtained from you under s.464ZF of the Crimes Act. Through your counsel that is not opposed and I make that order.
68 I must inform you that the police have the power to use reasonable force to obtain that sample but I trust that will not be necessary.
69 Under 6AAA of the Sentencing Act I am required to state the sentence I would have imposed had you pleaded not guilty to these charges.
70 I would have sentenced you to 12 years' imprisonment with a minimum period to serve of 9 years.
71 You have spent one day in custody and I shall note that on the court record to be reckoned as already served.
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