Boatswain v R

Court of Criminal Appeal (NSW)|2019-09-27|Before: Payne JA, Fullerton J, Adamson J

Solicitors: Toomey Defence Lawyers (Applicant) Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2015/333757 Decision under appeal Court or tribunal: District Court of New South Wales at Parramatta Jurisdiction: Crime Date of Decision: 28 September 2018 Before: Bennett SC DCJ File Number(s): 2015/333757

Judgment

PAYNE JA: I agree with Adamson J.
FULLERTON J: I agree with Adamson J.
ADAMSON J: John Boatswain (the applicant) seeks leave to appeal against an aggregate sentence imposed on him by Bennett SC DCJ on 28 September 2018 following his plea of guilty for seven offences which are set out in more detail below. The aggregate sentence was imprisonment for a term of 15 years with a non-parole period of 10 years. The grounds of appeal are: first, that the sentencing judge erred in "failing to properly take into account the principle enunciated in Bugmy v The Queen [(2013) 249 CLR 571;] [2013] HCA 37"; and, second, that the sentence was manifestly excessive.

The facts

The following narrative is derived from the statement of agreed facts which was tendered on sentence.
In about 1982, the applicant began a relationship with K, the sister of the two victims, V1 and V2. Over the following years, V1 and V2 would visit and stay with the applicant and K in their home.

In 1982, V1 was 10 years old. She and V2 stayed the night at the home of the applicant and K. Once after V1 had had a shower and was returning towards the bedroom, the applicant stopped and greeted her, then "yanked" the towel from her body, exposing her naked body. The applicant said words to the effect of "Oh, you are getting some pubic hair down there". V1 grabbed the towel from the applicant and ran into the bedroom.

Sequence 2 (Form 1 for Count 4)

On another occasion when V1 was 10 years old and present at the family home at Alexandria, the applicant and K visited. While V1 was in the laundry doing the washing, the applicant grabbed her on her crotch area on the outside of her clothes. When the applicant let go he said words to the effect of "don't tell anyone, because if you do, they won't believe you, they will believe your story is a lie". V1 did not tell anyone what had happened.

Sequence 4 (Form 1 for Count 4)

On a different occasion V1 visited the applicant and K at the family home in Alexandria. V1 went to an outside toilet in the back yard. The applicant followed her into the toilet and shut the door. V1 stood there in shock. The applicant pulled his pants down and masturbated until his penis was erect. He put his other hand down the front of V1's pants and touched the top part of her vagina.

Count 1

The applicant removed his hand from his penis and grabbed V1's hand. He put V1's hand on his penis and put his hand on top of hers and moved her hand in an up and down motion on his penis. This continued until he ejaculated into the toilet.
After this occasion, when he visited the family home, the applicant would regularly follow V1 to the outside toilet and have her masturbate his penis with her hand.

Sequences 6 and 7 (Form 1 for Count 4)

On another occasion when V1 was 10 years old, she and V2 visited the applicant and K at their home near Redfern Train Station. They stayed overnight that night.

Sequence 6 (Form 1 for count 4)

During the visit, V1 fell asleep in the lounge room. She woke up to the applicant with one of his hands inside her underpants, rubbing her clitoris.

Sequence 7 (Form 1 for count 4)

Whilst the applicant was doing this, he took V1's hand and put it on his erect penis. As she had masturbated the applicant's penis before, V1 moved her hand up and down on his penis. The applicant continued to rub V1's clitoris but stopped when K called out and asked where he was.
Between about 6 October 1982 and 1 May 1983, the applicant was in custody for unrelated matters.
At the beginning of 1985, the applicant, K and their two children moved to a home in Glenfield. In June 1986, V1 and V2 went to live with them.
On an occasion when V1 was 14 years old, she was left to babysit the children of the applicant and K while K and V2 visited a neighbour. The applicant remained at home. The applicant entered the lounge room, grabbed V1's hand and took her to the downstairs toilet. The applicant pulled down his pants. His penis was erect. He asked V1 to "touch" or "masturbate" him. V1 used one of her hands and masturbated the applicant until he ejaculated into the toilet bowl. Afterwards, the applicant told V1 to go back and watch the children.

Sequence 20 (Form 1)

On another occasion when V1 was still 14 years old and living at the Glenfield home, the applicant took her to the downstairs toilet. He pulled his pants down and told her to masturbate him. V1 put her hand on the applicant's erect penis and started to masturbate him.

Count 2

The applicant then told V1 to get on her knees. V1 knelt in front of the applicant. He told her to open her mouth which she did. The applicant pushed his erect penis into her mouth and started moving it back and forth in her mouth. V1 gagged and the applicant put his hands on the back of her head and moved her head in a back and forth motion. He told her to suck his penis. The applicant let go of V1's head and V1 kept moving it back and forth as she sucked the applicant's penis. The applicant started to groan and V1 moved her head away. The applicant ejaculated into the toilet.

Count 3

On another occasion, again when V1 was 14 and still living at the Glenfield home, she was using the upstairs toilet when she heard K call out that she was leaving. After K called out, the applicant walked into the bathroom. V1 was scared. The applicant pulled down his pants and stood in front of her. His penis was erect. He told her to "come here" and put a hand on the back of her head and pulled her head forward. The applicant put his penis into V1's mouth and started moving his penis in and out of her mouth. He said "move your head up and down" and "come on baby, suck me". The applicant continued to hold V1's head. She could not move her head away. The applicant sat on the edge of the bathtub and pulled V1 off the toilet and onto her knees in front of him. V1 sucked his penis. The applicant ejaculated into her mouth, even though she tried to move her head away as he was ejaculating. The applicant held V1's head with his penis in her mouth and forced her to swallow his semen. V1 felt as if she was going to vomit. The applicant then removed his penis from her mouth, pulled his pants up and left the room.

Count 4

Not long after this event, V1 had penile/vaginal intercourse with a boy who lived in a nearby house. The boy's parents entered the room while the intercourse was taking place. The boy's parents reported what had happened to K.
A few days after this, V1 was using the upstairs toilet when she heard K call out, "I'll be back soon". V1 got off the toilet. As she was pulling up her pants, the applicant came into the room and said in an angry tone, "Now that you are not a virgin, you are fair game." He told V1 to remove her pants. V1, who was scared because the applicant was so angry, took her pants halfway down and backed out of the room. The applicant pushed her into her bedroom, causing V1 to fall backwards onto the floor. The applicant pulled his pants down, lay on top of V1 and put his erect penis into her vagina. V1 said "Get off. Please don't do this John". The applicant replied "You feel really good, it feels so good." He moved his penis in and out a few times. K returned and called out from downstairs to V1 and the applicant. The applicant got up, pulled his pants up and went downstairs. V1 ran back into the bathroom and got dressed. This was the only occasion the applicant had penile/vaginal intercourse with V1.

V1's complaint

Around mid-November 1986, V1 spoke to a welfare officer at school and reported that she had been indecently/sexually abused by the applicant. The report was referred to the Department of Youth and Community Services (the Department), which made inquiries and ultimately raised the allegations with V1's family. V1's family rejected her allegations and indicated their support for the applicant. V1 was effectively disowned by her family. The Department did not refer the matter to the police.

When V2 and V1 moved into the Glenfield home of the applicant and K, V2 was 13 years old.

Count 5

V2 was asleep on the bottom bunk bed in her room. V1 was asleep on the top bunk bed. When V2 awoke, the applicant was next to her, touching and rubbing her clitoris with his fingers.

(Sequence 12, Form 1)

The applicant held V2's hand and was moving it up and down his penis.

Count 6

After V1 had moved out of the Glenfield home, V2 was asleep in the top bunk bed and the applicant's daughter was asleep on the bottom bunk bed. V2 awoke to find the applicant's hand inside her underwear. He penetrated the inner lips of her vagina with his fingers.

Sequence 25 (Form 1 for Count 7)

Around late 1987 or early 1988, the applicant, K and their children went with V2 to stay with one of K's friends at a unit in Malabar for the weekend. V2 became ill with a stomach virus. The applicant offered to take her home. V2 asked K to let her stay at the unit. Despite her opposition the applicant took V2 home. After the applicant and V2 arrived back at the Glenfield home, V2 had a shower and dressed. The applicant told her to lie down. V2 lay on the blankets on the bed in which the applicant and K slept. The applicant had a shower, then went to V2 on the bed, removed the towel he was wearing, and rubbed his penis against V2's leg.

Count 7

A few months later, when V2 was still 14 years old, she woke up and went into the dining area, next to the lounge room where the applicant's nephew, who was staying, was asleep on the lounge. The applicant, who was wearing boxer shorts, came into the room and sat on V2, who was wearing summer pyjamas. He used his hands to pin hers to the floor. He was aggressive and used force on V2, which he had not done before. The applicant began to grab V2 on both breasts over her clothing and under her clothing. The applicant grabbed V2 on the vagina and put his hands inside her pyjama pants. He rubbed his fingers between her vaginal lips but did not insert them.
V2 was struggling and trying to get him off her. She was afraid to scream for help because she knew that V1's allegations against the applicant had not been believed and that she had had to live elsewhere after having made them.

Sequence 26 (Form 1 for count 7)

On one occasion, at around the time V2 turned 15 years old, V2 woke to find she had been uncovered and that the applicant was rubbing and touching her upper thigh area. She told the applicant to go away and "stop touching me". The applicant commented that her legs were nice. After she told him to go away, he responded that it was all right. V2 thought that there may have been another person "Fernando" with the applicant who left the room with the applicant.

Sequence 24 (Form 1 for count 7)

V2 moved out of the Glenfield home shortly before she turned 16, and obtained employment in promotions at a business called something like "Grouse Mouse Video and Ribs" at which the applicant was the manager. On one occasion, the plan was for the applicant, another female employee and V2 to go to factories in the area to promote the business. The other female employee called in sick that day, with the consequence that the applicant took V2 alone on the trip to the factories.
On the way back to "Grouse Mouse" after visiting the factories, the applicant stopped the car on the side of the road and grabbed V2's hand and put it on his penis. He moved V2's hand up and down until he ejaculated.

The police investigation and subsequent arrest of the applicant

In June 2015 police spoke with V1 about a matter unrelated to the applicant. When she reported what the applicant had done to her, police began to investigate her complaints and complaints which, on questioning, were also made by V2. On 9 October 2015 V2 took part in a lawfully recorded call with the applicant. The applicant told V2 that he was "sorry" and said he "hated" himself for it.
The applicant was arrested on 21 November 2015 and taken to Macquarie Fields Police station where he was charged and took part in a record of interview with police, in the course of which he said that he agreed that he had done wrong and was going to stand up and take his punishment. He told police he was not denying anything.

The sentence proceedings

At the sentence hearing, the Crown tendered the agreed facts, the two Form 1s (for counts 4 and 7), the Crown sentence summary, the indictment, the applicant's criminal and custodial histories, a chronology and victim impact statements by V1 and V2.
The applicant did not give evidence on sentence. His counsel tendered a report of Thea Gumbert-Jourjon, a psychologist, which recounted the account the applicant had given her of his background.

The remarks on sentence

The sentencing judge noted that the applicant was a male significantly older than the two victims and that the offending took place between 1981 and 1988. The offences against V1 commenced when she was 10 years old and continued into her early teens. The offences against V2 commenced in her early teens. The offences occurred in homes where the victims lived for some time. Because of their age and their location, the victims were vulnerable. The sentencing judge agreed with the Crown's submission that the offences were serious.
His Honour noted that the applicant had pleaded guilty at a "late stage" and indicated that the discount would be between 10 and 15%, the variation being the result of rounding down the indicative sentences. His Honour found that the plea reflected contrition.
The sentencing judge referred to the victim impact statements of V1 and V2 but indicated that he could not take them into account as aggravating factors as they reflected the type of outcome that was, in effect, usual for such offences.
The sentencing judge noted that the applicant was 57 years old as at the date of sentence. His Honour recorded that the applicant's record contained entries for violence such as assault and robbery, as well as property offences, driving offences and stealing in the Children's Court. His Honour also noted that the applicant's first appearance in an adult court in 1979 was for matters of break, enter and steal, harbouring an escaped prisoner and escape lawful custody.
His Honour observed that the applicant's criminal antecedents did not contain entries for conduct of the type for which he stood to be sentenced.
The sentencing judge referred to the applicant's medical difficulties and that he had been unable to take part in paid employment for two years, was in receipt of Newstart benefits and had suffered a stroke in 2016 as a consequence of a blood clot in his leg. This medical condition caused ongoing pain, impaired mobility and required medication.
His Honour noted that psychometric assessment which had been made of the applicant which referred to his anxiety and depression. The sentencing judge made particular reference to the portion of the psychologist's report where she said that, based on the applicant's report of his "highly disadvantaged and traumatic upbringing", she considered that he was "likely to be exhibiting substance use disorders at the time of his offences." His Honour noted that the applicant had also been medicated for depression for the previous seven years, but his mental health condition had not otherwise been treated.
In recounting the applicant's personal and family history the sentencing judge noted that the applicant was the youngest of 6 children. His father was an alcoholic, who was abusive to the applicant, his siblings and his mother. His mother tried to support the family by working as a secretary. His Honour noted that many of the family's basic needs could not be met and that the applicant said he often attended school without shoes.
His Honour recorded that the applicant had told the psychologist that when he was 13, he was sent to a boys' home for delinquents. His Honour also made reference to the applicant's history of having suffered sexual abuse on five or six occasions at the boys' home where he had been plied with alcohol and unable to resist the abuse. His Honour said: "Commendably I might say he did not attempt to relate that to his own offending. He attributed his difficulties with alcohol to these experiences."
On the applicant's return from the boys' home, his family had left their home without leaving a forwarding address. The applicant became homeless in the first year of high school, dropped out, and has effectively had no meaningful education, but took on work by way of odd jobs in factories and other process work. His Honour recorded that the applicant worked as a glazier for around eight years and trained in concreting, subsequently working in that industry for the following 30 years.
The sentencing judge also noted that the applicant's use of alcohol and other illicit substances began when he used cannabis and alcohol at the age of 12. His Honour noted that the applicant was "intoxicated most nights" up until the age of 40, and that, from the age of 20 he used up to 10g per day of cannabis for the following 20 years. His Honour recorded that the applicant had told the psychologist that the only effect of the drug was that it calmed him down.
The sentencing judge also recorded the applicant's history of amphetamine use from 21 years of age when he was working in a nightclub and that the applicant said that he took it so he could work more efficiently but denied any dependence or impairment as a result of his use.
His Honour extracted the following passage from the psychologist's report: "The offender's report of the highly disadvantaged and a [sic] traumatic upbringing touching upon the matters that I have discussed in explaining his embarkation upon crimes of this dishonesty in order to survive, the lack of familiar modelling, the lack of support, the traumatic stress arising from his own sexual abuse when in his early adolescence, leading to his abuse of substances, he was likely to be exhibiting substance use disorders at the time of the offences."
His Honour described the sentencing task which he was required to perform as follows: "When people experience the impact of crime as victims, one can appreciate they might not understand our role, and might take the view that the Courts have been inappropriately lenient in the particular case, and that is understandable. But the exercise in determining sentence upon an offender involved a synthesis of facts and circumstances, each of them pointing in their own direction, which must be brought to bear upon what is the appropriate punishment in the particular case. One does not determine sentence only upon the objective gravity of abhorrent behaviour; one must bring to account what are referred to as subjective matters, which will temper the punishment that might otherwise be imposed and have some impact upon the extent to which the offender will be required to suffer gaol."
The sentencing judge addressed the connection between the applicant's background and the offending for which he stood to be sentenced and said: "I note the disadvantaged and traumatic upbringing which led him to abuse substances. I bring that to account as part of the background he has experienced in his formative years. The connection between that thought and the commission of crimes upon these young girls is a little more difficult to reach. Even if his misuse of substances was a substantial cause of his offending behaviour, it does not provide much in the way of mitigation in my assessment of the matter in the circumstances."
His Honour found special circumstances by reason of the applicant's physical impairment arising from his stroke. The ratio between the total term of 15 years and the non-parole period of 10 years is 66 2/3%, which constitutes a significant variation from the statutory norm of 75%.

Alleged failure to properly take into account the principle enunciated in Bugmy v The Queen (ground 1)

Although Mr McLachlan, who appeared on behalf of the applicant, complained that the sentencing judge had not referred to Bugmy v The Queen, he accepted that it had not been referred to at the sentence hearing. He acknowledged that counsel for the applicant in the sentence hearing had referred to the applicant's disadvantaged background and that his Honour's reasons used similar terms.
Mr McLachlan submitted that the sentencing judge failed to give "full weight" to the applicant's deprived background and that this caused the sentencing discretion to miscarry. However, he accepted that the sentencing judge had taken it into account and that, in effect, the first ground was a potential explanation for what he contended was the manifest excess of the sentence, which is the subject of ground 2.
One of the difficulties with ground 1 is that it presupposes that the weight given by a sentencing judge to any factor relevant to sentencing can be discerned from the outcome. The sentencing judge's reasons are redolent with references to the applicant's deprived background, which seems to have been accepted notwithstanding that the applicant did not give evidence. His Honour made findings about it and expressly stated that it had been taken into account. The second difficulty with this ground is that the weight to be given to any particular relevant factor is pre-eminently a matter for the sentencing judge. The applicant's acceptance that this factor was taken into account is sufficient to dispose of this ground.

Alleged manifest excess (ground 2)

Mr McLachlan submitted that although an aggregate non-parole period of 10 years might be within the range, a head sentence of 15 years was too great, having regard to the indicative sentences.
He fairly accepted that the relevance of sentences imposed in the past was limited, having regard to the effect of s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), which, of present relevance, requires a court to sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence, and to take into account the trauma of sexual abuse on children as understood at the time of sentencing. However, Mr McLachlan submitted that the totality of the offending ought properly have resulted in a lesser head sentence than 15 years, given that the total of the indicative sentences was 27 years and 2 months.
Manifest excess is a conclusion that does not require identification of a specific error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).
Sentencing involves the exercise of discretion. The factors that are relevant to the exercise of the discretion include deterrence, both general and specific, rehabilitation and punishment. The exercise of the discretion requires consideration of objective circumstances (the seriousness of the offending conduct) as well as subjective circumstances pertinent to the offender, including, as in the present case, his disadvantaged background. The number of factors to be taken into account as either mitigating or aggravating under s 21A of the Crimes (Sentencing Procedure) Act provides an indication of the complexity of the exercise. The maximum penalty is a relevant guidepost: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. Care must be taken in drawing direct comparisons between sentences passed in respect of other offenders whose subjective and objective circumstances are necessarily different: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[56] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
No particular challenge has been made to the indicative sentences which, although not susceptible of appeal since they have not been imposed, may, in some cases, expose an error in the sentencing discretion. As the sentencing judge noted, the offending took place over a period of about seven years and involved two victims through periods of their lives when they were very much at the applicant's mercy because of the relationship between him and K and their living circumstances. His determination to obtain sexual gratification from each of V1 and V2 in circumstances where he knew them to be particularly vulnerable made the offences serious, as his Honour found. The applicant's heinousness in committing offences against V2 when he appreciated that V1's complaints, though true, had neither been believed by the family, nor taken further by the police or the Department, was particularly grave. The length of the offending and the number of victims were important considerations which bore on totality. A significant total term and non-parole period were called for.
I do not consider the sentence imposed to be outside the range within which the sentencing judge's discretion could properly be exercised. The result does not indicate that the discretion miscarried. The second ground has not been made out.

Proposed orders

For the reasons given above, I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2019

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (30 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (8)

Cited By (1)