Director of Public Prosecutions v Budge

[2017] VCC 1249

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-01177

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEVILLE BUDGE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 August 2017
CASE MAY BE CITED AS:	DPP v Budge
MEDIUM NEUTRAL CITATION:	[2017] VCC 1249

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn	Office of Public Prosecutions
For the Accused	Mr R. Backwell	Michael Brugman

HIS HONOUR: 

1In the years 1995 to 2002, eight young boys in Geelong joined and were members of a local Scout group.  At least initially, all had great enthusiasm for what Scouts had to offer, fun, friends, adventures, learning skills and responsibilities and developing a sound social and moral compass.  The boys attended the Belmont Scout Hall on Tuesday evenings, went to camps to Anglesea and other places.  You, Neville Budge, were their Scoutmaster at the First Belmont Scout Troop. 

2You had significant responsibilities in leading and caring for the group of young boys.  Rather than nurture and enhance their childhood experiences, you sexually abused the eight young Scouts.  The age span of your victims was about ten to 14.  Your crimes were committed at the Scout hall, at camps, at Scout events and at your own home when some of the victims came over as friends of your own sons.  The effect of your crimes has been significant and long lasting.  Now is the time that you must face the consequences of your dreadful crimes.

3On 19 June 2017, a jury returned verdicts of guilty in relation to 20 charges of an indecent act with a child under the age of 16 involving four victims.  Thereafter, you pleaded guilty to a further four charges of an indecent act with a child under the age of 16 which arose from the allegations of a further four victims.

4As required by the Sentencing Act, I must assess the gravity of your crimes and your moral culpability in committing them.  To do so, I need to set out some of the circumstances of what you did.  It will be necessarily a brief summary which will accord with the facts heard and, in my view, accepted by the jury and in respect of the pleas of guilty, the prosecution summary of the relevant facts.  The names of the victims will be anonymised.

5The evidence heard by the jury included that you regularly spoke to a Scout or Scouts about puberty, whether they had pubic hair, the size of penises and masturbation.  These troubling matters indicate your habit of bringing conversations around to sexual topics.  This was the background and sometimes the direct pretext to your sexual offending.

6The first victim was RL.  The jury found you guilty of three charges of sexual abuse of RL.  RL was between the ages of ten to 12 at the time of your abuse of him.  He was a friend of one of your sons.  He came to your house in Mount Moriac to stay over.  While playing a table top soccer game, you briefly exposed your penis to him and waved it about.  Later, at a Scout camp at Anglesea, while the Scout group was watching a movie, you used the opportunity of darkness and the fact that there was a pack of chips being eaten and passed around, to put your hand in the chip packet being held by RL on his lap and then you rubbed his penis over his clothes.  On another occasion at your home, you exposed RL to pornographic magazines in a shed on the property.

7RL in a victim impact statement said the following.  He spoke of not comprehending what happened to him but now after speaking to the police and going to a psychologist, he realises the full impact of what you did to him.  As a teenager and into his 20s, he withdrew and drifted.  He could not settle to work or relationship.  He turned to alcohol and other things like it.  He said, "I was constantly on the run from nothing, slowly
self-destructing."  He continued, "During these years, I was supposed to develop emotionally intelligent morals and self-pride, I needed to become a man in today's complex society.  Instead, I learnt fear, sadness and distrust.  I was robbed of my childhood and a safe environment to learn.  This subsequently impacted all aspects of my life and will for some time to come."

8The second victim was HB.  He was between 12 to 13 years of age when you committed crimes against him in that period of time.  The first two offences happened while at a Scout camp.  What you did was take the topic of penis size to a disturbing level, but having HB expose his penis so you could measure it with your fingers.  Then you, as an adult, exposed your penis and had the child measure your penis.  Neither you or HB actually touched the other penis, but the conduct was humiliating and troubling. 

9On another occasion at the Scout hall when HB was on his own with you in a small meeting room, you touched HB's penis over his clothing.  You then had him take his pants off while you asked if he had ever ejaculated.

10At a camp when the weather turned foul, you were sleeping next to HB in a hay shed.  You were closed to him and asked him to masturbate himself and it seems the child obeyed.  At another camp at Anglesea, you came up behind HB as he sat on a bench seat.  You reached around and rubbed his penis over his clothing.

11HB in his victim impact statement spoke of his early childhood before he became involved in Scouts is one where he was engaged and full of confidence.  After your abuse of him, it had, in his words, "A profound effect" on him emotionally and socially.  He struggled as he grew up withdrawing from pursuits he had previously enjoyed.  He wrote, "I feel like there is something inside me that is fundamentally broken and I feel great sadness that I will never be that happy child that I once was."  He wrote of the great emotional strain of giving evidence and how, without the support of his parents and wife, he would be lost.

12The third victim was FP.  He was 12 to 14 at the time of the six offences you committed against him.  These started oddly with you, on two occasions, kissing FP on the lips in the back rooms of the Scout hall.  On a different occasion when you were with FP in one of the small back rooms of the hall, you pulled your penis out of your pants.  Disturbingly, you had an erection and said to the child words to the effect this is what it would look like when he was older.  You then asked if he wished to touch your erect penis, but he declined.

13On two further occasions, when FP was at your house, you exposed him to pornographic material, once a DVD and another magazines.  Each time he told you, he did not want to look at such things.  On another occasion in 1999, FP was helping you with the task of managing car parking for the football crowd attending at a game at Kardinia Park.  At the end, you offered FP a lift home and he went to your car near the South Geelong Railway Station.  Once there, you had FP masturbate to ejaculation in front of you for payment of $5.  You supplied the lubricant.

14In his victim impact statement, FP sadly has a feeling of being, in his words, "Damaged goods."  Thereby, forming relationships has been very hard for him.  Unfortunately like others in this matter and victims in general, he has a sense of anger for not standing up to you at the time.  Let me say that he, nor any victim, is at fault or to blame.  Only you and you alone are responsible for these crimes.  FP found giving evidence very hard and frightening.

15The fourth victim was HC.  He was 11 to 12 years old when you committed what were some of the most serious offences on the indictment.  First at a camp, you briefly touched the victim on his testicles when you were teaching some Scouts aspects of first aid.  Then in early 2002, you invited HC to your house to play with your sons.  When he arrived, there were no children at home at all.  You were alone.  You were working on renovations to your bathroom and you asked HC to help. 

16While he helped, you turned the conversation there in the bathroom to whether HC had pubic hair as yet.  He said he had and you asked to see and had him take his pants and underpants off.  You cupped his testicles and touched his penis.  You then took him into your study where you showed him pornography on your computer.  You then pulled his pants down and took his penis out, holding it, and asking him whether his penis was bigger than those shown on the pornography.  His pants and underpants had to be quickly pulled up as your family arrived home.

17Later in 2002, HC came over for a sleepover with your sons.  After showing the boys how to drive, it seems in a paddock bomb, HC ended up in your shed with you alone.  You then used a lubricant to masturbate HC's penis for what he said was a significant time.  At this time, you also exposed your penis and applied lubricant and had the child, HC, place his hand on your penis as you showed him and guided him to masturbate you for some time.

18Later the same night, when HC was in a sleeping bag in a tent in the yard of your house and asleep, he work to find you masturbating him.  In his victim impact statement, he commenced by saying he has spent many years with hatred deep inside, mixed with overwhelming sense of fear and frustration that he could not control.  He has suffered nightmares for years and debilitating anxiety.  His enjoyment of his life has, in his words, been "Average at best." 

19Relationships were very problematic as he found his ability to trust was significant diminished.  He became suicidal and as a teenager, attempted suicide.  He turned to gambling recklessly to switch off.  He lost much.  Psychological treatment was ineffective until he was able to disclose your abuse.  Now, with a proper diagnosis of Post-Traumatic Stress Disorder, he is being helped with appropriate treatment.  He nonetheless now feels that he can reclaim the life you took from him and he feels that he has contributed to justice.

20These 20 crimes are on the trial indictment plainly were serious, causing significant adverse impact on victims as they tried to navigate adolescence and on into adulthood.

21Following the jury verdict, you pleaded guilty to four charges arising from your sexual abuse of Victims 5, 6, 7 and 8.

22In respect of Victim 5, GP, he attended a Scout camp at Anglesea when he was 13 or 14.  While watching a movie, you took his hand and rubbed it on your crotch.  In his victim impact statement, he wrote of how unsettling it was to realise how his trust was abused.  He says he hopes he can now move on without these matters being in the back of his mind.

23In respect of Victim 6, WC, he was between 11 and 12 when you on an occasion when he was at your house, playing a game, you grabbed hold of the waistband of his pants and underpants pulling them out, so you could look at his genitals.  He in his victim impact statement spoke of his anger and his anxiety and how is trust of others is broken.  He blamed himself, but as I said, he is blameless and hopefully he will come to that sense as your full responsibility has brought home in this public vindication of all the victims and punishment of you.

24Victim 7, BJ, was ten years old and he had just joined the Scouts when you sat next to him on an occasion when he was sitting on a chair, having been eliminated from some game at the Scout hall.  You told him on his penis over his clothes.  This charge is representative of two other times when you repeated this conduct.  He wrote in his victim impact statement of feeling as a boy insecure, sad and upset and confused.  He was very wary of other adults in other groups that he joined as he grew up.  He remains upset at flashbacks that bring back these memories regularly.

25Victim 8, LA, was 12 years old at the time of your offending against him.  At a Scout camp, you came into the bunk room where Scouts were sleeping, tickled a number of boys as they lay in their bunks.  With LA you moved your hand down under his pyjamas and fondled his testicles.  In his victim impact statement, he spoke of your abuse as being always on his mind.  He felt so humiliated that he could not speak to anyone as he grew up.  He too now finds is difficult to trust people.

26This brief summary of the facts reveals the seriousness of your crimes.  What is concerning is the following.  One, the comprehensive breach of trust involved.  You were trusted to look after and nurture these young boys, allowing them to enjoy and benefit from the experience of being Scouts.  This breach of trust causes great concerns to parents who want to allow children to experience the sort of things that Scouts have to offer but they have to be wary now because of your conduct in exposing children to perverse, degrading and damaging experiences.

27Two, the very young age of the victims.  They were vulnerable young children, susceptible to the influences of you as an otherwise popular Scoutmaster.  The psychological scars you caused are still evident.

28Three, the duration and repeated nature of your criminal conduct.  Your victims were singled out from those that joined Scouts over the seven years from 1995 to 2002.

29Four, your exposing of children to pornography also reveals a concerning aspect of your conduct.

30Five, your conduct was manipulative and predatory.  You spoke of sexual topics, then you moved to touching the genital area over clothes and then to touching and masturbating a child's penis and having a child touch you.  You had one victim masturbate for payment in your car in a public place.  As has been recently said by our Court of Appeal in the matter of Morris.

"It is a grave thing to assault a young boy by exposing his penis and masturbating him.  It is equally grave to insist on being masturbated.  While not penetrative, each such act is a serious invasion of the victim's bodily integrity and autonomy."

31Another aspect of the gravity of the offending is the deep impact your offending has had on the victims.  I will, as I must, consider this matter separately but it is also relevant to the gravity of the offending.  In this regard, so too is the impact that crimes of this sort committed by those in positions of trust they have on the community attitudes and in particular parents when considering whether to allow young boys to join the Scouts.

32As to your moral culpability, it is very high indeed.  You knew or must have known what you were doing was wrong and that you should stop but you went on.  New vulnerable victims were identified and abused as others that you had abused moved on and out of Scouts.

33As to your personal circumstances, your counsel, Mr Backwell was concise in setting out the salient features of your upbringing and your present situation.  Refreshingly, he relied on speaking to you himself, gaining instructions about your background rather than burdening the system with yet another superfluous recitation of uncontroversial background matters by a forensic psychologist.

34However, I do not have any assessment of your psychological state, but given the age of the victims, your persistence, the nature of you crimes, it is clear you have an ingrained disturbing sexual interest in pubescent boys.  I can say no more about this.

35You are now 56 years old.  You were raised in Geelong in a family of six children.  One sister remains in touch with you.  I raise this because you will have limited contact with your own family for the duration of the time you are in prison because you moved with your family to Tasmania in 2003.  Your wife and four adult children still work and live in Tasmania.

36You have a very solid work history and up until your remand for these matters, you worked as a storeman in Tasmania.  Your wife works in a nursing home.  Your finances are in a perilous state with significant debts.  You have no prior convictions and up until the verdicts, you were a man of good character.  This is to your credit, as is your solid work ethic.

37Through much of your adult life, you have had to endure the burden of a colostomy bag.  You have, over the years, helped others to cope with having to have a colostomy bag in their lives.  It will be a burden in prison, making your experience in prison harder than if you were not so burdened.  You have preferred bags but it seems these are not available within the prison system.  You have been treated for depression by your general practitioner, prescribing medication to you since 2003.  As mentioned, you will be more isolated with your family interstate.  All these matters mitigate penalty. 

38There has been a delay and that too mitigates.  You were spoken to by police in April 2014, but not charged until October 2015.  Thereafter, you moved the case forward without delay including not having a contested committal, as you could not fund such a hearing.

39Having been found guilty of the 20 charges by a jury, you then, as I have said, pleaded guilty to the remaining four complainants' allegations.  Thus, in respect of that indictment, your sentence will be less than otherwise would be the case by reason of your plea of guilty.  Those four victims were spared the ordeal of a trial.  The system was saved precious resources.  But beyond the plea itself, there is nothing put forward that would support a finding that you were or are remorseful.

40In respect of the trial indictment, this is of course the position.  You are not to be punished more for going to trial or for a lack of remorse.  Rather the significant benefits that flow to those who are genuinely remorseful do not flow to you.

41However, in my view, given that you have not offended in like manner since these offences concluded in 2002, I agree with the submission of your counsel that your prospects of rehabilitation are reasonable.

42In terms of sentencing purposes, as set out in the Sentencing Act, I am obliged to consider protection of the community as the primary purpose for the offences after Charge 2, given that those two offences must, as was conceded, attract a sentence of imprisonment.  Following the imposition of prison sentences of the first two charges, you are then by definition, a serious sexual offender.

43The additional matter that I must then consider is the orders for cumulation.  I will return to that matter shortly.

44Other than protection of the community, another important sentencing purpose is the denunciation of your crimes.  To all right minded members of our community, sexual abuse by a Scout leader of vulnerable children is simply abhorrent.  What you did persistently year upon year to the Scouts that came under your care must be denounced, not only in words of condemnation, but in a practical way, that is with your liberty from you as punishment for the wrong you did and the harm you caused.  By proper denunciation and punishment of you, the important social values you debased are reasserted. 

45By my sentence, I must endeavour to deter others in positions of trust like you were in and generally.  The courts will continue to send an unequivocal message that those that sexually abuse children, imprisonment for long terms will be imposed.

46I do not overlook your rehabilitation, but given the seriousness of your crimes, it is a matter that must yield to the other sentencing purposes I have identified.  As noted, once I have sentenced you to terms of imprisonment for the two offences, then by operation of the Sentencing Act, my sentences must be cumulative unless I otherwise direct.  As the appellate authorities have made clear, I cannot ignore parliament's intent as expressed in the words of s.6E.  But as is also made clear in those appellate cases, there remains a requirement to consider and ensure that the total sentence meets the totality of your crimes.  In this regard, I will not order total cumulation of each sentence because to do so would produce a sentence of such length as to be simply an outrider relative to other cases and way outside proper consistency in sentencing.  There must nonetheless be some cumulation to mark your different crimes on the different victims. 

47I have considered other sentences imposed for like crimes.  As mentioned in recent times, the case of Morris, the Court of Appeal confirmed a sentence of six years with a minimum of four years for an accused who pleaded guilty to six representative charges of indecent assaults committed by a teacher on primary school students.  The children in that case were younger than in this case.  The touching of genitals was, as here, sometimes over clothes.  Sometimes there was masturbation of the child and also making the child masturbate the adult.

48Important differences need be noted are that in Morris, the accused pleaded guilty and the maximum terms were very different to being five years in Morris for offences committed in the 1970s, where here, the maximum term is ten years.

49I have considered cases other than Morris.  However, as the High Court and, in recent times, our Court of Appeal have emphasised that the sentencing discretion is a broad one, requiring particular concentration on the unique facts and circumstances of each individual case.  Other cases are to be considered as providing some general yardstick to the exercise of the discretion.  Subject to the wide variety of facts and personal circumstances in all cases and the particular facts and circumstances in this case, I emphasise the consistency in sentencing is an important principle which I have not overlooked.

50Doing the best I can, with all the charges and with orders for cumulation that are in my view what is necessary no more and no less, I impose the following sentences on the trial Indictment F13731808A.1, as I said, I will only be able to identify the charge no more and the penalty be imposed. 

51Charge 1, you are sentenced to be imprisoned for eight months.  Charge 2, you are sentenced to be imprisoned for eight months.  Charge 3, you are sentenced to be imprisoned for three months.  Charge 4, you are sentenced to be imprisoned for 12 months.  Charge 5, you are sentenced to be imprisoned for 12 months.  Charge 6, you are sentenced to be imprisoned for eight months.  Charge 7, you are sentenced to be imprisoned for eight months.  Charge 8, you are sentenced to be imprisoned for eight months.  Charge 9, you are sentenced to be imprisoned for seven days.  Charge 10, you are sentenced to be imprisoned for seven days.  Charge 11, you are sentenced to be imprisoned for eight months.  Charge 12, you are sentenced to be imprisoned for four months.  Charge 13, you are sentenced to be imprisoned for three months.  Charge 14, you are sentenced to be imprisoned for two years.  Charge 15, you are sentenced to be imprisoned for eight months.  Charge 16, you are sentenced to be imprisoned for ten months.  Charge 17, you are sentenced to be imprisoned for 16 months.  Charge 18, you are sentenced to be imprisoned for 16 months.  Charge 18, you are sentenced to be imprisoned for two years and eight months.  Charge 19, you are sentenced to be imprisoned for two years and eight months.  Charge 20, you are sentenced to be imprisoned for two years and eight months.

52Charge 19 is the base sentence.  I make the following orders for cumulation.  Those orders bringing cumulation upon each other and upon Charge 19. 
Two months of Charge 1.  Two months of Charge 2.  Four months of Charge 4.  Four months of Charge 5.  Two months of Charge 6.  Two months of Charge 7.  Three months of Charge 11.  Nine months of Charge 14.  Two months of
Charge 16.  Two months of Charge 17.  Twelve months of Charge 18. 
Twelve months of Charge 20.

53If my mathematics is right, and that will be checked shortly, the total sentence that I intend to impose on Indictment F13731808A.1, is seven years and four months.

54On the plea Indictment F13731808B.1, I impose the following sentences.  On Charge 1, six months' imprisonment.  On Charge 2, 14 days' imprisonment.  Charge 3, eight months' imprisonment.  Charge 4, nine months' imprisonment.  Charge 4 is the base sentence and I make the following orders for cumulation, being cumulation upon each other and on Charge 4.  One month of Charge 1 and two months of Charge 3.  The total sentence on the plea indictment being Indictment F13731808B.1 is 12 months.

55I further order that six months of the total sentence imposed on the plea Indictment F13731808B.1 be cumulative on the total sentence of seven years and four months imposed on the trial indictment, it being F13731808A.1.  Thus the total effective sentence is seven years and ten months and I fix a minimum of five years and eight months before you are eligible for parole.

56Had you pleaded not guilty to the four charges on the plea indictment, I would have imposed a total sentences of 20 months.  You have already served
51 days in custody.  That figure of 51 days having been reckoned, I declare that those 51 days as part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already served 51 days of the sentence that I have imposed.

57I am required to declare that for charges 3 through 20 on the trial indictment and Charges 1 to 4 on the plea indictment that you a serious sexual offender.  I will ensure that that declaration is entered into the records of the court.  By operation of the statute being the Sex Offenders Registration Act, you must be registered as a sex offender and the period is mandatory and it is for life.  There has been a request for a forensic sample and I intend to make that order.

58Mr Backwell, Ms Flynn, I have a copy of the figures that I have read out and they will be provided to you to assist you in the mathematics as it were.  So I just hand you those documents.

59Mr Budge, as I indicated, I intend to make the order sought that you provide a forensic sample.  I do so because of the seriousness of the circumstances and because the granting of the order is in the public interest.  You have to understand that when the authorities come to seek from you a forensic sample, a scraping of your mouth or the like, that you must co-operate with them.  If you do not, they are authorised to use reasonable force to obtain that forensic sample.

60Another document that will be produced and provided back to you, Mr Budge, is a document that you acknowledge that you have received information relating to the fact that you must be on the Sex Offenders Register for life.  It goes this way that you have to sign a document saying that you got the documents and I have got to sign a document saying that I gave them to you.  But it is the contents of the document that are critical and that is information Mr Backwell will probably assist you with but you must read it.  There are serious consequences if you do not comply with the Sex Offenders Registration Act.

61Insofar as the mathematics are concerned, are you content?

62MS FLYNN:  With respect, it appears correct, Your Honour, on a checking of those calculations.

63HIS HONOUR:  Likewise, Mr Backwell?

64MR BACKWELL:  Yes, sir.

65HIS HONOUR:  Thank you.  Mr Budge, I have mentioned the Sex Offenders Registration Act. The document has to be provided to you in court so I will give it to you now. So the transcript indicates that Mr Budge, being a registrable offender, acknowledges receiving a notice under the regulations of that
Sex Offenders Registration Act, that being a notice of reporting obligations.  That will be signed by my associate and forwarded to the Chief Commissioner of Police.  Is there anything further required?

66MS FLYNN:  No, thank you, Your Honour.

67HIS HONOUR:  Thank you.

68MR BACKWELL:  No, sir.

69HIS HONOUR:  I again thank counsel for their very considerable assistance and apologies to those that were put out by reason of me not being able to deliver sentence last week and delivering it today.  The phone will just remain as it is until such time as you come and pick it up.  I thank you for making that available.  Mr Budge can be removed.

(Offender removed.)

70HIS HONOUR:  Mr Backwell, it's not necessary Mr Budge be back for this, but I will make the reasons that I have delivered available to the media on the media portal, as it is, so they can listen, but I will endeavour to provide, in particular to any media in Geelong as speedily as I can a revised sentence, but if there is anyone from News Corp that does the Geelong papers, then they can use the media portal or contact my staff at any point.

71MS FLYNN:  Thank you, Your Honour.  There are some victims that would be grateful for Your Honour's sentencing remarks once you've had a chance to revise them as well.

72HIS HONOUR:  Absolutely.  Well I will provide them as soon as I can.  I do not think there will be much revision of it in what it was, but the portal is restricted to the media.

73MS FLYNN:  Yes, I understand that, Your Honour.  Thank you, Your Honour.

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