Bouris v The Queen [2021] VSCA 123

1 In order to meet a prospective partner, the applicant utilised 'Planet Romeo', a dating application and social network for gay, bisexual and transgender males. The victim used the same application with the profile name 'iwanttofuc'. The applicant listed his age as 52 on his profile and the victim said that he was 18. Neither statement was true: at the time of the offending the applicant was 62 and the victim was 12.

2 The applicant initiated a text-based conversation with the victim via the application, which became increasingly explicit. After arranging to meet, there was some discussion about the victim's age. The victim initially said that he was 17 years old but during the conversation the applicant expressed some disbelief as to whether that was the case. Nevertheless, the two exchanged sexually explicit messages and arranged to meet.

3 The applicant drove to the victim's house and parked his car directly out the front. Before meeting, the two exchanged further messages. During that exchange the victim said that he was 14 and, using vernacular, that he wanted to engage in oral sex with the applicant. The applicant responded: 'That's too young. Can chat'.

4 Shortly after that exchange, the victim entered the applicant's car and sat in the front passenger seat. Following a brief discussion, the victim removed his pants and underwear and the applicant placed the victim's penis in his mouth. The applicant then removed his pants and the victim put the applicant's penis in his mouth. These two incidents were the subject of charge 1, a rolled-up charge alleging a single act of sexual penetration of a child under 16.

5 After the applicant left the victim's home they exchanged further messages. The victim ceased participating in the exchange that day but the applicant continued to send messages to the victim the following day. The applicant's communications with the victim on those days, including the transmission of indecent images, formed the basis of charge 2, grooming a child under 16 for sexual conduct.

6 On the evening of the offending which constituted charge 1, the victim's father reviewed CCTV footage from his home and observed the victim entering the applicant's vehicle for a period of time. At the instigation of his father, the victim attended the police station and made a statement in relation to the matter.

7 In an interview with police, the applicant denied that anything of a sexual nature had occurred in the car and made partial admissions in relation to the subsequent messages. DNA evidence was obtained which implicated the applicant.

8 The applicant subsequently pleaded guilty at committal and was sentenced in accordance with the following table:

Sexual penetration of a child under 16[1]

6 years and 6 months' imprisonment with a non-parole period of 4 years and 6 months.

Reporting period of 15 years pursuant to s 34 of the Sex Offenders Registration Act 2004.

9 The applicant seeks leave to appeal his sentence on the single ground that the sentence imposed on charge one and the non-parole period are manifestly excessive in all of the circumstances.

10 For the reasons that follow, leave to appeal must be refused.

11 After setting out the circumstances of the offending, the judge noted that the applicant's early plea carried significant utilitarian value and was indicative of remorse.[3] Her Honour noted that the applicant had also expressed remorse in a letter to the Court in which he noted that reading the victim impact statements had made him 'feel sick to [his] core'.[4] The victim impact statement of the victim said that it would take a long time for family life to get back to normal.

12 The judge noted that protection of children and young people from sexual exploitation is an important matter.[5] This includes 'protecting children against themselves and against the consequences of their own immaturity and poor decisions'.[6] The judge noted that the absolute prohibition that the law imposes on sexual activity with children under 16 is informed by a desire to protect children from harm that is presumed to be occasioned by premature sexual experience.[7]

13 The judge accepted that the offending was not premeditated and that the applicant was not seeking to have sexual contact with children.[8] She accepted that the during the initial communications the applicant believed that the victim was over 18 years of age.[9] However, the judge noted that before the offending occurred, the applicant believed that the victim was 14 and knew that sexual contact would be wrong.[10] Although the applicant's messages disclose some reservations, the judge observed that the applicant's desire for a younger sexual partner overwhelmed him.[11] She noted that the fact the applicant believed the victim was 14, rather than 12, did not diminish his moral culpability.[12]

14 The judge noted that the offending was very brief but that after the initial offending the applicant pursued further contact with the victim rather than desisting.[13] Further, the judge found that it must have been readily apparent to the applicant that the victim was a confused and vulnerable boy, which rendered the offending objectively serious and the applicant's moral culpability high.[14]

15 In the context of those matters that went to the objective gravity of the offending, the judge then turned to the applicant's personal circumstances. She noted that in 1992 and 2003 he was sentenced for dishonesty offences, the latter of which resulted in a 21-month term of imprisonment.[15]

16 The applicant's mother died relatively shortly before the offending and the judge accepted that at the time of the offending the applicant was lonely, still grieving the loss of his mother and was legitimately seeking adult companionship via the dating application.[16] The judge referred to character references from his daughters and observed that the applicant had been a support for one of his daughters who has suffered from addiction.[17]

17 The judge regarded the applicant's prospects of rehabilitations as good, accepted that he was remorseful and deeply regretted what he had done and had the continued support of his family, with the result that she regarded his risk of reoffending as low.[18] The judge assessed the applicant's prior dishonesty offences as being of no real relevance to sentence.[19]

18 The judge noted that the offence of sexual penetration of a child under 16 is a standard sentence offence for which the standard sentence is 6 years' imprisonment.[20] In accordance with authority, the judge took that matter into account as part of the instinctive synthesis undertaken to arrive at the appropriate sentence.[21] As noted, the judge assessed the offending as objectively serious and the applicant's moral culpability as high.[22]

19 Ultimately, the judge noted that general deterrence and denunciation are the primary sentencing considerations in all cases involving the sexual abuse and exploitation of children.[23] She noted that those who transgress the absolute prohibition on sexual contact with children under 16 must expect stern punishment.[24]

20 In his written case the applicant identifies a number of mitigating factors which he says, although referred to by the judge, were not adequately reflected in the sentence.

21 The applicant submits that the offending was not predatory, and arose in the context of the applicant seeking adult male company. He submits that the offending was spontaneous, unplanned and occurred a very short time after the applicant came to believe that the victim was under 16. He notes that the offending did not involve a breach of trust in the sense that there was no pre-existing relationship between the two, the offending was brief and lacked other aggravating factors commonly seen in offending against children such as coercion, inducement, manipulation, threatening behaviour or attempts to isolate the victim.

22 The applicant refers to the standard sentencing regime and submits that the offending fell towards the lower end of the hypothetical range of offending.

23 In addition to the various matters in mitigation noted by the judge, the applicant refers to the judge's finding that the applicant's family had been the subject of online abuse as a result of media reports about the case and the impact of COVID-19 on the custodial system.

24 In terms of comparative cases, the applicant noted that the prosecution had referred the judge to a table containing 12 cases involving sexual penetration of a child under 16 as a standard sentence as at 19 August 2020. Of those, the applicant's sentence was greater than or equal to those imposed in nine other cases, some of which he submits had aggravating features.

25 The applicant accepts that the offending was serious and warranted appropriate punishment. However, he submits that having regard to a number of unusual features, the sentence imposed was wholly outside the range available in the proper exercise of the sentencing discretion.

26 The principles that this Court must apply in assessing the proposed ground of appeal are not in dispute. They are encapsulated by the observation that the applicant must establish that the sentence is wholly outside the range of sentences properly available. It has been described as a high hurdle and, obviously, will not be established merely because this Court may have imposed a less severe sentence.

27 Although the applicant was able to call in aid a number of mitigating factors - in particular, that the offending was not premeditated, he did not target a child and it involved some spontaneity - it remained serious offending.

28 The applicant had ample opportunity to desist in circumstances where he knew that the victim was under 16 and that it was wrong to engage in sexual activity with him. Prior to the offending, the victim told the applicant that he was 14. The applicant's response was to acknowledge that this was 'too young' for sexual activity. The judge accepted that the offending was not premeditated in the sense that the applicant did not pursue sexual activity with someone under 16. However, after the first offending and in the belief that the victim was 14, the applicant sought further conduct. The charge of grooming to which the applicant pleaded guilty means that in assessing the overall criminality, the applicant's conduct cannot be confined to a spontaneous act from which he later resiled.

29 It is true that the applicant and the victim were not in a pre-existing relationship of trust. Had that been the case the offending would have been more serious. However, the very large age difference and the fact that the victim was, as found by the judge, young and vulnerable, means that there was a significant degree of exploitation.

30 As the judge noted, the purpose of the absolute prohibition on sexual activity with children under 16 is to protect them from the harm of exposure to premature sexual activity. In this case, the sexual activity was between a 62-year-old man and a 12-year-old boy.

31 The fact that the young boy expressed a willingness to engage in sexual activity is not a mitigating factor. Indeed, as the judge found, it must have been obvious to the applicant that the victim was a confused and vulnerable boy and this made the offending objectively serious.

32 The maximum penalty for charge 1 was 15 years' imprisonment. In this context, it is notable that the charge was rolled-up and involved two acts of penetration, albeit they were separated by a very short period of time. Nevertheless, the fact that it was a rolled-up charge is relevant.[25] The applicant fell to be sentenced on a single charge with a maximum penalty of 15 years, but the fact that it encompassed two (different) acts of penetration cannot be ignored in assessing the objective gravity of the offending. Given that two distinct forms of penetration were involved, the use of a rolled-up charge was to the advantage of the applicant. However, in assessing the individual sentence on charge 1, the fact that it was a rolled-up charge was relevant. It prolonged the offending and the mutual acts of fellatio rendered the charge more serious.

33 As the judge observed, general deterrence and denunciation are very important aspects of the sentencing process for offences of this kind. It must be made clear that offending of this kind is serious and often attracts substantial periods of imprisonment and that the courts will impose stern punishment to denounce the conduct and in aid of protecting children. In imposing sentence, the judge was entitled to give considerable weight to these matters. The sentence imposed by the judge did not come at the cost of ignoring, or impermissibly downplaying, the personal and other factors that called for moderation.

34 The sentence imposed was within range. The application for leave to appeal must be refused.

[1] Crimes Act 1958 s 49B(1).

[2] Ibid s 49M(1).

[3] DPP v Bouris (Unreported, County Court of Victoria, Judge Hassan, 17 September 2020), [35] ('Reasons').

[25] R v Jones [2004] VSCA 68, [13] (Charles JA, Phillips and Bongiorno AJA agreeing).