The State of Western Australia v Boombi
[2018] WADC 60
•17 MAY 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BOOMBI [2018] WADC 60
CORAM: JUDGE PRIOR
HEARD: 5 APRIL 2018
DELIVERED : 17 MAY 2018
FILE NO/S: KUN IND 28 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KEITH BOOMBI
Accused
Catchwords:
Sentencing - Trial of issues - Aggravated burglary and doing an act with intent to harm - Whether the victim was known to the offender - Whether the victim provoked the offender - Extent of the assault - Prosecution required to prove aggravating factors beyond reasonable doubt and offender required to prove mitigating factor on the balance of probabilities
Legislation:
Sentencing Act 1995 s 15
Result:
Prosecution failed to discharge the onus of proof that the victim did not know the offender
Representation:
Counsel:
| Applicant | : | Ms D Clarke |
| Accused | : | Ms M Louw |
Solicitors:
| Applicant | : | State Director of Public Prosecutions |
| Accused | : | Legal Aid |
Case(s) referred to in decision(s):
Law v The State of Western Australia [2009] WASCA 193
R v Olbrich [1999] HCA 54; (1999) 99 CLR 270
JUDGE PRIOR:
Introduction
This matter came before me on 5 April 2018 for a trial of the issues in relation to an indictment dated 19 October 2017 containing offences of aggravated burglary pursuant to s 401(2)(a) of the Criminal Code and doing an act with intent to harm and as a result causing bodily harm to LF pursuant to s 304(2) of the Criminal Code.
At the beginning of the trial of the issues Mr Boombi was arraigned and pleaded guilty to both counts on the indictment.
The matter proceeded to a trial of the issues because there was a factual dispute between the prosecution and the defence as to the following issues:
1.Whether LF as at 4 January 2017 was known to the offender Keith Boombi when the offences were committed in the townhouse occupied by LF in Kununurra.
2.Whether LF and Keith Boombi had, prior to 4 January 2017, been involved in a sexual relationship.
3.Whether Keith Boombi, when he entered LF's townhouse on the night of 4 January 2017 whilst LF was sitting on her bed, had exposed his penis to LF and had requested LF to suck his penis.
4.Whether LF said to Mr Boombi at her townhouse on the night of 4 January 2017 she would make a false complaint to the police that he had raped her.
5.Whether in the course of being assaulted by Mr Boombi LF had left her townhouse and been dragged back into her townhouse on a number of occasions by Mr Boombi and assaulted again by him after each time LF was dragged back into her townhouse by Mr Boombi.
At the hearing of the trial of the issues on 5 April 2018 the following witnesses gave evidence:
1.Police Officer Matthew Gulland;
2.The victim Linda Falzon;
3.Police Officer Dean Andrezejaczek;
4.Detective Grant Earnshaw; and
5.The offender Keith Boombi.
The following items were also tendered as exhibits at the trial of the issues:
1.The medical report of a Dr Vernon Powell who had treated LF at Kununurra Hospital on 5 January 2017 after 12.30 am;
2.A photograph of the shorts worn by the offender Mr Boombi on 4 January 2017 which was seized by the police and photographs of Mr Boombi on 5 January 2017;
3.Interior and exterior photographs of LF's townhouse in Kununurra after the offences were committed;
4.Photographs taken of LF in Kununurra Hospital on 5 January 2017 after she had received medical treatment;
5.Two photographs of LF naked, injured and bleeding taken by Officer Andrezejaczek outside her townhouse on 4 January 2017; and
6.A DVD of the record of interview of Keith Boombi with police officers at Kununurra Police Station on 5 January 2017 at 5.45 am.
In addition to the witnesses and exhibits I also have the statement of material facts and the prosecution brief of 178 pages for my consideration. Section 15 of the Sentencing Act 1995 provides that, to decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.
The prosecutor, Ms Clarke, at the hearing of the trial of the issues submitted the factual allegations I have referred to which were in dispute between the prosecution and defence were aggravating factual circumstances that had the potential, if proved, to result in a more severe sentence for the offender Mr Boombi. The exception to this would be whether LF said to Mr Boombi on the night of 4 January 2017 she would make a false complaint to the police that he raped her. This is submitted by defence counsel Ms Louw to be a mitigatory fact as it indicates Mr Boombi may have been provoked by LF to assault her.
Given the prosecutor accepted there were aggravating factual circumstances in dispute it was for the prosecution to bring those matters to the court's attention and the prosecutor had the onus of proof. The standard of proof was beyond reasonable doubt: R v Olbrich [1999] HCA 54; (1999) 99 CLR 270 [25]; Law v The State of Western Australia [2009] WASCA 193 [33] (Buss JA).
In relation to the mitigatory fact, the alleged threat of a false rape complaint made by LF to Mr Boombi, this was a matter for the defence to prove on the balance of probabilities.
Beyond reasonable doubt is the highest standard of proof known to the law. If the prosecution were unable to prove the aggravating factual circumstances I have referred to beyond reasonable doubt the relevant facts do not exist for the purpose of my sentencing of Mr Boombi. This is the same if Mr Boombi did not prove on the balance of probabilities that LF told Mr Boombi she would make a false rape complaint about him to the police before he assaulted her: Law v The State of Western Australia [34].
Prosecution evidence
LF the victim
LF is 37 years of age.
LF gave evidence she was living at her house in Kununurra on the night the offences occurred, 4 January 2017. She had been living in Kununurra for about five years. LF's house in Kununurra was a townhouse. It was the back townhouse in a line of three townhouses from the street.
LF said that she lived downstairs with her bed in the townhouse because people would come in downstairs at night and she was concerned that she would be the only one upstairs if she slept in the bedroom upstairs.
On the night the offences were committed, sometime between 9.00 pm and 11.00 pm, LF was watching TV downstairs in her townhouse. She thought she was wearing a Star Wars T‑shirt that went down to her knees. In her evidence‑in‑chief, LF said that she had this T‑shirt on at the time she heard a knock on the door.
LF said that she heard a knock at the door, peeped around the door and opened it. She said hello to the person on the other side.
The male person on the other side asked if he could come in and advised that he 'has got some cones and stuff'. LF said she thought the male said he was a friend of a person she knew but she forgot who the person was he mentioned.
LF said that she occasionally smoked cannabis for anxiety.
LF gave evidence that she decided to let the man into her townhouse and she went and sat on her bed. He then sat on a chair across from her and she said 'so, what?' She said that the man then stood up, pulled his pants down and when he was at her head level, exposed his penis and said 'suck my dick'. LF said she was approximately 15 cm away from him and felt unsafe and uncomfortable. LF stated that she said to the man 'can you please pull your pants up and leave'.
The man then just walked near the front door and LF said she was pushing him on the back softly and gently just to push him near the door direction. The man then started going upstairs near the front door but LF said she pulled him down, got the front door open and got him out of her townhouse.
LF was not physically assaulted at this stage.
LF stated she had never seen the man before.
LF gave evidence that people did knock on her door for cigarettes and hassled her some nights. LF said that on this particular night she asked the man whether KB had sent him there and pointed to her next door neighbour's house.
After the man left, LF stated that she rang the police to warn them about the man coming into her house. She said she did not feel safe and was concerned he might come back.
LF said that the man left in a white Trooper. When he left she had a cool shower upstairs and came back downstairs naked.
LF gave evidence that when she came downstairs she laid down on her bed and had a cigarette. She then heard a car pull up and a knock on the door and the person on the other side of the door said 'let me in'.
LF said she told the person to 'fuck off' or something of that nature. The person then ran down the side of her townhouse, to the back and she rang the police.
Whilst LF was on the phone to the police, the man smashed through the black sliding door and she ran to the kitchen.
When LF went to the kitchen, the man came towards her and whacked the telephone out of her hand. LF said the man then started hitting her over the head and she was bleeding pretty badly. She felt something sharp in his hand as she was hit in the head by the man. She thought the man may have grabbed her nail clippers from the sink in the kitchen.
LF said she kept trying to run out the front door but there was a barricade up with an armchair and a trolley because she had placed them there to make her feel safe at night.
LF said she eventually ran out of the townhouse about three times but each time the man pulled her back into her townhouse by the ponytail and again hit her over the head.
LF claimed that at one stage, the man urinated on her when she was lying on her back. She also gave evidence that the man stuck something up her bum one of the times she was on the floor trying to get up.
She said she felt very unsafe and said to the man 'please don't do this to me, please stop'.
When questioned about what happened on the occasions she got outside her townhouse, LF said at one stage she got to her neighbour's dead tree but no‑one answered her calls. She said she could hardly yell or speak as she was suffering from a chest infection at the time.
LF gave evidence that whilst she was in her townhouse being assaulted the man smashed a porcelain kettle over her head.
LF stated that the police arrived about 20 minutes later. She ran out the front door and knocked on the window of the police vehicle. The man jumped the back fence.
LF gave evidence that the police officer took a photo of her and an ambulance arrived.
LF gave evidence that she was positive she did not know the man who came into her townhouse and assaulted her.
In cross‑examination, LF stated that she did not leave her townhouse much and she felt safer sleeping downstairs because the two doors were down there and it was a way of getting in and out. She stated that by sleeping downstairs, she knew who was coming in and out.
In cross‑examination, LF conceded she could have been naked the first time when she opened the door and let the man into her townhouse.
LF said there had been occasions where Aboriginal people had come to her front door, she had given them cigarettes and shut the door.
LF said that she had never seen this man before although he told her he had cones and she thought he knew a friend of hers. She assumed the man knew either KB or RM.
In cross‑examination, LF said she put the lights on in her house to answer the door when the first knock occurred.
In cross‑examination, when it was suggested to LF that she did not call the police on the first occasion the man went inside her townhouse, she conceded that she did not and she 'might not have fucking remembered it'. She stated in her evidence that she probably just went to bed and thought it would all just disappear. She did not think the man would come back again.
The following was put to LF in cross‑examination:
(i)she knew the man and his name was Keith;
(ii)she knew the man because she had had sex with him a few times;
(iii)she had met the man at the Kununurra Pub during the previous year. On that occasion she had gone to Celebrity Tree Park from the pub and had sex with him on the slides in the playground;
(iv)that between October 2016 to 4 January 2017 the man (Mr Boombi) would come over to her townhouse and they talked about each other's relationships; and
(v)on the night 4 January 2017, Mr Boombi had spoken to her about wanting to end seeing each other and she had claimed she was then 'going to put him up for rape!'
LF's response to all these cross‑examination questions was 'it was not true at all'.
LF stated she thought that the man had hit her with something sharp but conceded that she had not said that in her police statement. She further agreed that she did not mention the man urinating on her in the statement she gave to police on 5 January 2017. LF went further in her evidence and suggested she did not know if the man was definitely urinating on her. She said he poured something on her and she assumed it was urine. She said she did say on the night to someone that the man poured something on her and it smelt like urine.
When put to LF in cross‑examination that she had never mentioned to the police before that the man had put something up her bum, she accepted that this was also not in her statement to the police.
LF denied that she grabbed the man by the legs after he had assaulted her. She denied the man shuffled to the kitchen and hit her over the head with a ceramic kettle while she was holding him around the legs.
LF in her evidence further denied saying to the man that she was going to charge him with rape.
It was suggested to LF in cross‑examination that she was embarrassed about having a sexual relationship with an Aboriginal man and that she had slept with this man five or six times. She denied this.
In re‑examination, LF stated that she thought she was wearing her Star Wars T‑shirt when the man came and knocked on the door on the first occasion.
Police evidence
Police officer, Matthew Gulland took a call from LF at Kununurra Police Station at 11.40 pm on 4 January 2017.
Police Officer Gulland said in his evidence that he recognised LF's voice because he had had dealings with her before. Police Officer Gulland said that he had spoken to LF on numerous occasions with regard to issues that had occurred at her address and she had a distinct voice.
Police Officer Gulland stated that in the telephone call, LF said she wanted police to remove someone who was in her backyard and at no stage gave a name for the person. He said that LF did not seem too flustered and not to the point of the matter being ultra‑urgent. Police Officer Gulland said that LF did become flustered and her voice became raised when the window was smashed. After this he heard male voices and it sounded like LF dropped the phone and he heard her scream. He then dispatched two police officers to her address.
What is notable about Police Officer Gulland's evidence compared to LF's evidence is that he only mentioned receiving one phone call from her and this was a phone call which must have occurred during the time Mr Boombi smashed the back sliding door and entered the townhouse when he returned the second time.
Police Officer Dean Andrzejaczek attended LF's townhouse on the night of 4 January 2017.
He stated that LF came out of the townhouse naked, blood spilling from the top of her head down her body. He said that LF was covered in blood.
Police Officer Andrzejaczek recognised LF straight away due to previous police duties. He said that LF had been the victim of burglaries on other occasions, probably five times.
LF was extremely panicked and did not say the name of anyone when he spoke to her.
Police Officer Andrzejaczek cleared LF's townhouse, called for backup and an ambulance. He then went back outside, administered first aid to LF and took two photos of LF with his mobile telephone.
At no stage did LF mention any names to him.
Officer Andrzejaczek stated that the St John Ambulance turned up and took LF to Kununurra Hospital.
Detective Grant Earnshaw was the investigating police officer with respect to this matter. He took a statement from LF at Kununurra Hospital.
Whilst he was taking a statement from LF, Dr Powell the medical practitioner who had been treating LF, showed Detective Earnshaw a bone fragment that had come from her skull. Detective Earnshaw noted scratches and bruises on LF but most of the injuries were to her head.
Detective Earnshaw interviewed Keith Boombi on 5 January 2017 at Kununurra Police Station and charged him with the offences after the interview.
Detective Earnshaw stated that LF never said who came into her townhouse and just gave a description of the man.
Record of interview – Keith Boombi
The record of interview between Detective Earnshaw and Mr Boombi at Kununurra Police Station commenced 5.45 am on 5 January 2017 and lasted for approximately 90 minutes.
For at least the first hour of the interview Mr Boombi told a series of lies to Detective Earnshaw.
Mr Boombi admitted that he had lived in Kununurra. He said that he was drunk on the previous night and had got involved in an argument with his girlfriend, Sarafina Patty. He had been in a relationship with Ms Patty for about three years. He said he had bashed her and slapped her. He said this was before the police arrived and arrested him.
On a number of occasions in the interview Mr Boombi said he could not remember anything from the previous night.
Mr Boombi told the police that his white Toyota Trooper motor vehicle was stolen the night before. He then walked into the town and looked around for a party.
He denied going to LF's residence in Kununurra.
When it was put to Mr Boombi by Detective Earnshaw that he was the person who attended at the townhouse, pulled out his penis and exposed it to the female occupant, not only did Mr Boombi deny that he did this, he said he would not do this to some random girl as he had a girlfriend.
About one hour into his record of interview, Mr Boombi told the police that his car was not ever stolen and that he had had an argument with his girlfriend Sarafina and drove his car into town.
Mr Boombi then told the police that he parked his car in the street in Kununurra where LF's house is located and he was by himself on the night. He told the police he left his car in that street and just went walking around Kununurra. Mr Boombi agreed that he had previously told police lies about his car being stolen on the night.
When Mr Boombi was asked about blood that was found on the shorts that he was wearing he claimed to the police that the blood was on his shorts from when he was giving his girlfriend Sarafina a 'flogging'.
Mr Boombi eventually told the police that he was so drunk on the night that he could not remember what he was doing.
Eventually Mr Boombi conceded in the police in the interview that he was the man that went around to LF's house and wanted to have a cone. He denied knowing the lady whose house he went to but admitted she was white.
Mr Boombi said he knocked on the front door of the lady's house and asked her if she wanted a cone. He said the lady let him in and he went into the lounge room where she stays and there was a bed in there.
He admitted that the lady was sitting down on the bed and he was standing up. He said he did not have his drugs on him and just left.
When Detective Earnshaw asked whether Mr Boombi had asked the female in the house to suck his penis he denied that this had occurred. When it was put to him a second time that this occurred, Mr Boombi said he did in fact ask the lady to suck his penis and she would not do it so he left.
Mr Boombi said he went there to have a cone and when inside he asked the female occupant of the premises for 'a head job'.
Mr Boombi, in answer to a number of the questions by Detective Earnshaw, at this point of the interview said that he could not remember what happened, he was drunk and he did not know what he was doing.
Mr Boombi said that after he left the lady's house he went in his 'Troopy' to Jimmy's place looking for Sara.
Detective Earnshaw then asked Mr Boombi whether he went back to the house. His answer to this question was that he could not remember and he did not know. He was then asked whether he could remember smashing the back door of that house. Mr Boombi said he could not remember.
Mr Boombi then admitted that he did go back to the house a second time but could not give an explanation as to why he went back or entered the premises. He said that when he went back on the second occasion the lady inside the house started screaming.
Mr Boombi said he could not remember whether he hit the female occupant over the head with a pot and denied touching her by the hair. He told the police that the lady was naked when he went back on the second occasion and admitted that he might have caused the blood on her.
Eventually, in the interview Mr Boombi admitted to the police he smashed the back window, which was the screen door, and then had an argument with the lady when she asked him to leave the house. Mr Boombi then told the police that he punched the lady, probably in the arm and chest but he did not know. He admitted he probably punched her face.
The police asked Mr Boombi if the lady ever left the house whilst he was there. Mr Boombi admitted that she ran out screaming through the front door and he ran out and punched her or something. Mr Boombi could not remember what happened after that and all he could remember was he left the house at that point. Mr Boombi said he went out the back door and 'skipped over the fence'.
When asked by Detective Earnshaw for more detail of what happened inside the house, in particular whether he smashed a ceramic teapot on the lady's head, Mr Boombi said he could not remember.
At no stage during the interview did Mr Boombi indicate to the police that he knew the lady inside the house.
After being shown one of the photos Police Officer Andrzejaczek took of LF, Mr Boombi became emotional in the interview and eventually said that he felt really bad for what he had done to the lady. He said he felt bad for doing what he had done to a stranger. He said he was unable to explain why he did assault the female occupant of the house but was angry at the time and might have taken it out on somebody else.
Mr Boombi's police interview was concluded at 7.18 am and shortly after that Mr Boombi was charged with the two offences.
Keith Boombi the offender
Mr Boombi gave evidence at the trial of issues. He is a 23‑year‑old Aboriginal man who was living with his mother in a suburb of Kununurra at the time he committed the offences.
His first language is not English but he can speak and understand English.
In January 2017 Mr Boombi said he was separated from his partner Sarafina Patty as they were having problems in the relationship. They had been in a relationship for three years and they had a 1‑year‑old daughter.
Mr Boombi said he knew LF as he met her in late October 2016 at the pub. He remembered previously seeing her at his cousin, RM's house.
Mr Boombi said he spoke to LF at the pub. He invited her to Celebrity Tree Park to have beers and cones. He also had a bottle of Jack Daniels with him.
Mr Boombi said he drove LF to Celebrity Tree Park in his white Troopy, which was not far from the pub. He said they smoked some cones, had a few beers and he asked her if she wanted to have sex. She said yeah and they had sex at the slide in the playground in the park.
Mr Boombi then said he drove LF to her house in Kununurra.
After that night Mr Boombi said that he kept going back to LF's house.
Mr Boombi said that he never exchanged telephone numbers with LF. He did not want his girlfriend Sara to find the number as she was a jealous woman.
Mr Boombi said he would go around to LF's house with drugs. They would smoke a bit of weed, have sex and sometimes they would sit down or lay around talking for hours.
Mr Boombi gave evidence that whilst he visited LF, they would talk about their individual relationships and he believed that there was some affection from LF towards him. He confirmed that it was always LF's house where he would catch up with her and this occurred at least five times.
In his evidence concerning what he did on 4 January 2017 the day of the offences, Mr Boombi said that earlier in the day he had been with his partner, Sara, drinking at his mother's house. The drinking occurred between 5.00 pm and 6.00 pm. He said that he also smoked some methylamphetamine for the first time. When that occurred he said he had an argument with his girlfriend, Sara, and drove off. He drove to LF's house.
In his evidence about his first attendance at LF's house, he said that he knocked on the door. LF opened the door he went inside and he brought drugs for her as he usually did. He said he had a cone and LF brought over the bong and they had a few cones. He then started feeling a bit guilty about what he was doing behind his girlfriend's back because the affair had been going on for three months. He said that he tried telling LF that he had to stop seeing her because of the problems he was having at home with his girlfriend. LF got angry and suggested he had just been coming around and using her for sex all the time.
In response to this he told LF that he just wanted to stop seeing her for a while. She responded by saying that she was going to go to the police the next day and tell them that he raped her. Mr Boombi said this threat made him feel bad.
Mr Boombi then said he walked out of LF's house and told her to 'get lost'. He got into his motor vehicle and drove off.
When asked whether he showed LF his penis at his first attendance at LF's townhouse on the night of 4 January 2017. He said he did not know.
Mr Boombi gave evidence that after he left the house, he started to get paranoid about LF telling him that she was going to go to the police and say that he had raped her. About 5 minutes into the journey from LF's house, he swung his car around and decided to go back to talk to her to fix the problem.
Mr Boombi gave evidence that when he went back on the second occasion to LF's house, he knocked on the door but she would not listen to him and told him to 'fuck off'. He asked her to open the door and said that he wanted to talk to her. LF eventually opened the door and he started talking to her about what she had said about trying to put him up for rape. Mr Boombi said she kept repeating the same thing which is 'I don't care what you say, I'm going to the police station tomorrow'. Mr Boombi said that he ran out the front door, onto the side gate and went around the back. He sat down out the back thinking about what he should do. LF was inside her house during this time. Whilst he was sitting on a chair in the backyard, LF was telling him to go. The next thing Mr Boombi remembers doing is picking up the chair and smashing the back sliding window.
Mr Boombi agreed that he assaulted LF in her house by punching her a few times with his fist. He denied that he had anything sharp in his hand.
When Mr Boombi was asked whether he dragged LF back into the house by the hair, he said that did not happen and she was in the inside the whole time. Mr Boombi said at one stage LF had locked on tight to his lower leg and he asked her to let go. Mr Boombi shuffled over to the kitchen where he saw a ceramic clay pot sitting on the kitchen bench. He grabbed it and hit LF over the head with it. Mr Boombi said he only hit her with the teapot once. After this blow was struck, Mr Boombi said the police came and he ran out the back door. He said he had seen the light of the police vehicle and 'skipped the back fence'.
Mr Boombi then said he went to Jimmy Patty's house who was his girlfriend's Grandpa and came across Sara. Sara was in shock when she saw the blood all over his shorts. Mr Boombi then had an argument with Sara. He broke a branch off a tree and struck her with it. After she was struck, Sara then took off running into Jimmy's house, locking Mr Boombi out. The police then arrived and arrested him.
Mr Boombi agreed that he did tell lies in his interview with the police on 5 January 2017. He said he was devastated for brutally assaulting the lady that night and that is why he did not tell them the true story.
Mr Boombi confirmed that he did know the lady inside the house and described her with LF's first name. He confirmed that his car was parked outside the front of LF's townhouse. This is consistent with the police photographs of the exterior of LF's townhouse the next day when Mr Boombi's white Toyota motor vehicle was still in that location.
When Mr Boombi was cross‑examined about his knowledge of the house that LF resided at, he gave evidence that every time he went around there to see her, he was under the influence of alcohol and drugs.
When Mr Boombi was asked in cross‑examination whether he exposed his penis to LF, he said he did not remember. He did agree that he asked LF to suck his penis but said comments he made in the record of interview with the police was him going on with story of what the police were telling him. Mr Boombi then said that he did not expose his penis to LF.
Mr Boombi disagreed that LF left the house three times whilst he was in there and he dragged her back by the hair. Despite the admission in the record of interview made by Mr Boombi that LF left the townhouse once whilst he was there, he said in his evidence that she was inside the whole time and at no point left the house.
When cross‑examined about his record of interview with the police on 5 January 2017, Mr Boombi agreed that he lied about hitchhiking into Kununurra as opposed to driving his motor vehicle. He lied about the blood on his shorts was because of a split lip to his girlfriend, Sarafina. He agreed that for approximately the first hour of his interview what he said to the police were lies.
Mr Boombi confirmed that when he told the police that he did not know the lady in the house that was a lie and he did in fact know her.
In cross‑examination, Mr Boombi said that what he said in his evidence was the truth although he had lied substantially to the police in his record of interview on 5 January 2017.
Mr Boombi said that the lady was naked when she opened the door the first time he went around to her house on the night of 4 January 2017. Mr Boombi said on the second occasion when he went back to the house, the lady was still naked.
Mr Boombi said his evidence about being in a relationship with LF and the threat she made towards him on the night of 4 January 2017 about the complaint to the police were all true.
Credibility findings
I did not find LF a credible witness. Her explanation of how and why she let the man (Mr Boombi) enter her townhouse on the night of 4 January 2017 is not believable. During her cross‑examination LF made significant concessions about the accuracy of her recollection of the events that occurred on the night of 4 January 2017. She also admitted that significant parts of her evidence was not included in the statement she made to the police on 5 January 2017. I consider some of LF's evidence of factual matters which did not appear in her police statement are a recent invention.
I did not find Mr Boombi a credible witness.
Mr Boombi told numerous and significant lies to the police in his record of interview on the morning of 5 January 2017. What he eventually told the police at the end of the interview I do not consider is the full and accurate detail of what happened when Mr Boombi went to LF's townhouse on both occasions on the night of 4 January 2017. I have come to the same conclusion as to Mr Boombi's evidence before me at the trial of the issues on 5 April 2018.
Mr Boombi was drunk and under the influence of methylamphetamine when he attended at LF's townhouse on the night of 4 January 2017. His level of intoxication I am satisfied affected his behaviour on the night and his accurate recollection of the events when he gave evidence.
Only LF and Mr Boombi know what happened on the night of 5 January 2017 when Mr Boombi attended LF's townhouse on both occasions. No other persons were present in the townhouse nor were there other eye witnesses in the vicinity.
Given my credibility findings in relation to both eye witnesses to the significant events (LF and Mr Boombi) my decision on the factual issues in dispute for sentencing is ultimately influenced by who has the burden of proof and what is the standard of proof for these issues.
Findings of fact
I am satisfied on the evidence of LF and the police evidence of their previous contact with her that LF had significant concerns about her safety and security at the townhouse she resided at, by the date the offences were committed. She was known to Kununurra Police Officers Gulland and Andrezejaczek due to her previous complaints relating to burglaries on her residence. She slept downstairs in her townhouse as a security measure.
I cannot be satisfied beyond reasonable doubt that the person who LF let into her house on the night of 4 January 2017 was unknown to her given LF's concerns for her safety and security. It was unlikely LF would have let an unknown male into her townhouse late at night merely on the basis he had cones (cannabis). Given LF's concession in cross‑examination that she may have been naked when she let the man into her townhouse on the first occasion, I consider it is highly unlikely the man she let into her townhouse was unknown to her.
I consider on the evidence it is more likely that the person who LF let into her house, the offender Keith Boombi, was known to her prior to the night of 4 January 2017.
I note that during Mr Boombi's record of interview with police officers at no stage did Mr Boombi admit knowing the 'lady', as he described her, who was in the house. Mr Boombi admitted in his evidence he told numerous lies in his record of interview about his whereabouts on the night the offences were committed and initially denied going to the house occupied by LF. His evidence was that at the time he was in a relationship with Sarafina Paddy and she would be jealous of his relationship with LF.
In my view it is more likely than not that LF and Mr Boombi were not only known to each other but had engaged previously in sexual activity. This is consistent with the eventual admission Mr Boombi made in his record of interview that while the lady was sitting on the bed in her townhouse shortly after she let him in, he asked her to suck his penis.
On the balance of probabilities, I consider the more likely factual circumstances are after LF refused to suck Mr Boombi's penis that Mr Boombi and LF had an argument. Although Mr Boombi denied exposing his penis to LF in his evidence before the court on 5 April 2018, I consider the admission he made eventually in his record of interview of asking the lady to suck his penis is more consistent with the factual circumstances that did in fact occur on the night of 4 January 2017. I am satisfied beyond reasonable doubt that when Mr Boombi said this to LF, he also exposed his penis to her.
On the balance of probabilities I find that LF, as part of the argument she had with Mr Boombi after he exposed his penis to her and asked her to suck it, did in fact threaten to make a false complaint to the police that he had raped her.
Given the concerns I have about LF's credibility with respect to her evidence as to whether she knew the identity of the person who entered her townhouse on the night of 4 January 2017 and who assaulted her; I am unable to be satisfied beyond reasonable doubt that she ran out of the townhouse on a number of occasions (up to three times) while she was assaulted by Mr Boombi and was dragged back into the house and assaulted again by Mr Boombi. I make this finding notwithstanding Mr Boombi's admission in his record of interview that LF did run out the front door of the house around the time he skipped over the back fence. Mr Boombi's admission is significantly different to LF's evidence about her running out of her townhouse on up to three occasions and being dragged back in by her hair.
In my view, even on the version of offence as described by Mr Boombi in his evidence at the hearing on 5 April 2018 as just one assault inside LF's house, the assault on LF was vicious in its nature because it involved a number of blows being struck by Mr Boombi to LF's face and head. Mr Boombi also used a teapot as a weapon at some stage during the assault and hit LF over the head with it. Mr Boombi in his own evidence described the assault a brutal.
The medical report of Dr Powell and the photographs taken of LF at Kununurra Hospital confirm the extent of LF's injuries and are consistent with a brutal assault. LF suffered multiple lacerations to her face and head in the assault. One head wound contained small bone fragments from LF's skull. LF also sustained bruising to her limbs and hands.
In her evidence before this court LF testified that the offender urinated on her while she was lying on her back and penetrated her anus with an object. Given the concerns I have about LF's credibility about whether she knew the person who entered her townhouse on the night of 4 January 2017 and given LF's concession during her cross‑examination that the acts she described of urination and anal penetration in her evidence‑in‑chief were not matters that she mentioned in the statement she made to Detective Earnshaw on the morning of 5 January 2017, I am unable to be satisfied beyond reasonable doubt that these two acts occurred.
What I am able to be satisfied beyond reasonable doubt is that LF let Mr Boombi into her townhouse on the night of 4 January 2017 on the basis that he had cones (cannabis) available for her to smoke with him. When Mr Boombi came to LF's townhouse, on both occasions on 4 January 2017 he was known to her because of their previous relationship. The location of where Mr Boombi parked his Toyota motor vehicle near the front door of LF's townhouse when he returned on the second occasion makes it highly unlikely he was an unknown person to LF.
When Mr Boombi entered the house on the first occasion, I am satisfied beyond reasonable doubt that whilst LF was sitting on the bed on the ground-floor of the house, he exposed his penis to LF and asked her to suck it. In his record of interview with police, Mr Boombi admitted he asked the lady in the townhouse to give him a head job. When LF refused to carry out this sexual activity an argument occurred between Mr Boombi and LF.
On the balance of probabilities, I am satisfied when Mr Boombi first attended the townhouse on 4 January 2017, LF did threaten Mr Boombi that she was going to make a false complaint to the police of Mr Boombi raping her. I am satisfied that the threat was made during an argument between LF and Mr Boombi. It was a provocative comment by LF. This threat caused Mr Boombi to return to LF's townhouse a second time on the night of 4 January 2017.
When Mr Boombi returned to LF's townhouse on the second occasion he was still under the influence of drugs and alcohol. He was angry with LF as to the threat she had previously made to him when he first attended her townhouse. When Mr Boombi entered the townhouse after smashing the back door on the second occasion, he committed the offence which is count 2 on the indictment. He punched LF to the face and head multiple times. He also hit LF over the head with a ceramic teapot whilst they were in the kitchen area.
I am satisfied beyond reasonable doubt the extent of Ms Boombi's assault on LF was a significantly excessive response to the verbal provocation by LF.
The verbal provocation by LF to Mr Boombi occurred during Mr Boombi's first attendance at LF's townhouse and Mr Boombi committed the offences in counts 1 and 2 on the indictment when he returned to LF's townhouse on the second occasion on the night of 4 January 2017
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
ASSOCIATE TO JUDGE PRIOR15 MAY 2018
0
2
1