Bouris v The Queen [2021] VSCA 245

1 On 6 March 2020, the applicant pleaded guilty to the charges set out in the table below and, on 17 September 2020, he was sentenced by a County Court judge as set out in the table below:[1]

Sexual penetration of a child under 16 [Crimes Act 1958 s 49B]

Grooming for sexual conduct with a child under 16 [Crimes Act s 49M]

Total effective sentence: 3 years and 9 months' imprisonment

Non-parole period: 2 years and 6 months' imprisonment

Section 6AAA statement: 6 years and 6 months' imprisonment with a non-parole period of 4 years and 6 months

Other relevant orders: Reporting period of 15 years pursuant to s 34 of the Sex Offenders Registration Act 2004

2 The offence the subject of charge 1 is a standard sentence offence, with a standard sentence of 6 years' imprisonment.[2]

3 The applicant has sought leave to appeal against his sentence on the sole ground that '[t]he sentence imposed on charge 1 and the non-parole period are manifestly excessive in all the circumstances'. The written case in support of that ground was prepared by the applicant's counsel.

4 On 12 May 2021, Niall JA refused the application for leave to appeal.[3] The applicant has now elected to renew his application pursuant to s 315(2) of the Criminal Procedure Act 2009. He represented himself at the hearing of the application before us on 24 August 2021.

5 For the reasons that follow, the application for leave to appeal will be refused.

6 The summary of the circumstances of the offending set out below is based upon the prosecution opening summary on the plea, which was accepted as an agreed statement of facts for the purposes of sentencing.[4]

7 In November 2019, the applicant, who was then aged 62, and the victim ('AB'), who was then aged 12, both used an online dating application called 'Planet Romeo'. The applicant's dating profile falsely stated that he was aged 52 whilst AB's profile falsely stated that he was 18. The applicant's profile name was '2Sides'. AB's profile name was 'iwanttofuc' and he posted two images of himself dressed only in his underwear.

8 On 4 November 2019, the applicant initiated a text message conversation with AB via the Planet Romeo application. The conversation became sexualised. The applicant talked about where he lived and AB disclosed his father's address, where he was staying. They agreed to meet outside AB's father's home.

9 After arranging to meet, the applicant and AB had a conversation about AB's age. AB said he was 17. The messages that the applicant and AB exchanged were sexually explicit. For example, the applicant stated 'I would love to lick your hole but you are young'.

10 The applicant then drove to the home of AB's father to meet AB. The applicant arrived at 4:42 pm and parked his car directly in front of the house. CCTV footage from the house captured the applicant's car while it was parked outside.

11 After arriving at the property, the applicant continued to exchange messages with AB via the Planet Romeo application for approximately 11 minutes. During this time, AB was inside the house and the applicant was in his car.

AB: I'm scared

As soon as I get in can I suck ur dick

Applicant: Just come to the drivers window

Up to you

AB: Ok

I'm 14 I confess

I just want to suck dick

Can I still

Suck urs

Plz

Plz

Applicant: That's too young

Can chat

AB: No plz

I can still suck

U

Applicant: Come to my car

AB: If ur ok with it

Ok

Applicant: Up to you, no problem

13 Shortly after this exchange, AB came out of the house and got into the front passenger seat of the applicant's car. Upon meeting AB, the applicant commented that AB was too young and the applicant was too old. AB said he was going through a difficult time in terms of his sexuality and they had a brief discussion about this. The applicant told AB that he had also been through a difficult time when he was younger. The applicant made a number of remarks about AB's youthful appearance.

14 After speaking briefly, AB removed his pants and showed the applicant his penis.[5] The applicant held AB's penis in his left hand, removed his seatbelt, leaned over and placed AB's penis in his mouth for approximately three to four seconds.

15 The applicant then asked AB whether he wanted to see the applicant's penis, and removed his pants to expose his penis to AB. AB leaned over and put the applicant's penis in his mouth for about seven seconds.

16 Charge 1 is a rolled-up charge of sexual penetration of a child under 16, comprising the acts referred to in [14]-[15] above.

17 AB spent around five minutes in the applicant's car before he went inside the house. The applicant then drove away, but continued to message AB through the Planet Romeo application. The following exchange took place, commencing at 5:03 pm:

Applicant: Loved meeting you [emoji with love-heart-shaped eyes]

I will message you when I get home

AB: Ok

Applicant: I'm still hard thinking about you hehe

I'm home now. Are you ok?

I'm still hard thinking about you [kissing emoji]

Hi [AB], are you ok?

AB: Yes

Applicant: I really enjoyed meeting you

AB: Same

Applicant: [Emoji with love-heart-shaped eyes]

I am still hard lol

AB: Same

Applicant: [Photograph of an erect penis]

AB: I want to do it again

Applicant: I am free anytime you want to meet me

I want to see you

AB: Ok

Applicant: Tomorrow?

AB: Yes

Applicant: Can I pick you up from the shops or somewhere. Spend some time together [two kissing emojis]

AB: Ok

Applicant: That would be nice. Really nice

AB: Kk

Applicant: I am free anytime you want

AB: Kk

Applicant: [Two emojis with tongue sticking out and love-heart-shaped eyes]

Do you have any more photos please

Hi [AB], are you ok?

[Photograph of an abdomen which appears to have semen on it]

18 AB ceased participating in the conversation at this point on 4 November 2019. However, the applicant continued to text AB on 5 November 2019, as follows:

Applicant: Good morning [AB]. I had a really nice dream last night [kissing emoji]

Are you ok? I am worried about you

Hi

Are you ok? I am worried about you

19 The applicant's communications with AB on 4 and 5 November 2019 which are set out at [17]-[18] above - including the transmission of the indecent images - were the basis of charge 2, grooming for sexual conduct with a child under 16.

20 At approximately 9 pm on 4 November 2019, AB's father reviewed the CCTV footage from his home security system. He observed the applicant's car parked outside the property and AB getting into the car and remaining there for some time. AB's father questioned AB, confiscated his mobile phone and took him to the police station. On the following morning, AB made a statement to police describing his sexual contact with the applicant.

22 As we have already stated, the applicant was 62 years of age at the time of the offending. He was 63 when he was sentenced.

23 The applicant was born in Melbourne and had a stable and supportive upbringing. After completing his secondary education, he operated a catering business with a sibling, before moving into sales positions in various companies.

24 The applicant was married twice, with both marriages ending in divorce. He had two daughters, born in 1983 and 1986, with his first wife.

25 In 2003, the applicant was sentenced to a total effective sentence of 21 months' imprisonment, with a non-parole period of 10 months, for 24 charges of theft and one charge of attempted theft. The offending involved sums totalling $205,670.60 which the applicant stole from his employer over a period of two and a half years, during which time he had a gambling addiction and was in significant debt.

26 After the applicant served the sentence referred to at [25] above, he relocated to Thailand where he lived for 10 years and was in a relationship with a male partner for around three to four years. He returned to Melbourne when his mother was diagnosed with lung cancer and lived with her until she died in September 2018. On the plea, it was submitted on behalf of the applicant that, at the time of his offending, he was lonely and legitimately seeking adult companionship via the Planet Romeo application.

27 The applicant's daughters remain supportive and provided character references.

28 Prior to the plea hearing, the applicant wrote a letter to the sentencing judge in which he expressed remorse and shame for his actions. He apologised to AB and his family and stated that reading their victim impact statements 'made [him] feel sick to [his] core'.

29 Following the plea hearing, there was a media report about the applicant's offending. The report described the applicant as a paedophile and stated that he raped a 12-year-old boy without wearing a condom. It also referred to his Facebook account, which provided details of the applicant's daughters. The report resulted in the applicant and his daughters being subjected to unsolicited abuse from members of the public in the form of 'online trolling'. The comments that were posted on the applicant's Facebook account included suggestions that he should be killed or seriously injured, and were of a vile nature. At the request of the applicant's counsel, there was a further mention before the sentencing judge. Counsel submitted that the media report and online trolling constituted extra curial punishment and would result in the applicant being placed in protective custody, and that these matters should be taken into account in the exercise of the sentencing discretion.

30 The sentencing judge accepted that the applicant's offending was neither premeditated nor protracted and that the two acts of sexual penetration were 'separated by only moments'.[6] Nevertheless, she assessed the offending as objectively serious and the applicant's moral culpability as high because he was aware that AB was a young, confused and vulnerable boy. The sentencing judge said that, once the applicant was informed that AB was 14 years old, he knew that what he was doing was wrong. She stated that the fact that the applicant thought that AB was 14 years old, rather than 12, did not diminish his moral culpability.

31 The sentencing judge stated that general deterrence and denunciation were the primary sentencing considerations. She observed that the law imposes an absolute prohibition on sexual contact with children in order to protect them, including from themselves, against the harm that is presumed to be occasioned by premature sexual experience. She added that adults who transgress this prohibition must expect stern punishment.

32 The sentencing judge stated that the applicant's guilty plea was early, had significant utilitarian value and was indicative of remorse. She found that his prospects of rehabilitation were good and that the risk of reoffending was low.

33 The sentencing judge said that she took into account 'the difficult conditions in custody as a consequence of the COVID-19 pandemic'.[7]

34 The sentencing judge said the following in relation to the media report and the subsequent online trolling:

I accept and give some weight to the difficult situation in which the reporting of [the applicant's] offending has put both [him] and, most particularly, [his] daughters. {His] daughters' situation will cause [the applicant] concern and will make any term of imprisonment more onerous upon [him].[8]

35 The sentencing judge decided that a community correction order would not be sufficiently punitive to address the seriousness of the applicant's offending. However, she decided that it was appropriate to impose a sentence on charge 1 that was less than the standard sentence.

36 Paragraphs [37]-[40] below summarise the applicant's written case that was prepared by his counsel. Paragraph [41] below summarises the applicant's oral submissions.

37 The applicant submitted that, in all the circumstances, the offending 'fell towards the lower end' of the spectrum of seriousness for the offence of sexual penetration of a child under 16. The applicant pointed to the following matters in particular, which were said to have been accepted by the sentencing judge:

(a) The offending was not predatory. The applicant was legitimately seeking adult male company.

(b) The offending was spontaneous and unplanned. The applicant only learned that AB was under 16 years of age minutes before the offending and initially declined to participate in any sexual activity.

(c) The offending did not involve a breach of trust. The applicant did not exploit an existing relationship with AB or his family to facilitate the offending.

(d) The offending was brief. The acts of sexual penetration lasted seconds in the context of a five-minute meeting.

(e) The offending lacked other aggravating features. The applicant did not coerce, induce, manipulate, threaten or attempt to isolate AB.

38 The applicant contended that the sentence, combined with the sentencing judge's s 6AAA declaration 'signals that her Honour treated the offending as more objectively serious than it was'. The applicant observed that the sentence the sentencing judge would have imposed if he had not pleaded guilty, namely, 6 years and 6 months' imprisonment,[9] was greater than the standard sentence. The applicant acknowledged that a s 6AAA declaration is of limited assistance in an application for leave to appeal against sentence, but argued that it could be indicative of sentencing error. It was submitted that, recognising that the applicant's offending 'fell towards the lower end of the hypothetical "range" of offending', the standard sentence 'ought to have steered the applicant's sentence downwards from that legislative yardstick'.

39 The applicant contended that he was able to rely upon 'genuine and powerful' matters in mitigation, including his early guilty plea, remorse, lack of relevant prior convictions, support of his family (who had been subject to the online trolling following the media report) and the impact of COVID-19 on the custodial system. The applicant also relied upon the sentencing judge's findings that he had good prospects of rehabilitation and presented a low risk of re-offending.

40 The applicant argued that his sentence on charge 1 was greater than or equal to nine out of 12 cases to which the prosecutor referred on the plea, some of which involved breaches of trust, predatory offending, protracted offending and offenders who were sentenced as serious sexual offenders. According to the applicant, the comparable cases could be taken into account in combination with other matters in determining whether the sentence was outside the available range.

41 In his oral submissions before us, the applicant raised the following matters:

(a) The applicant complained that some of the factual findings of the sentencing judge and Niall JA were inaccurate. In support of this complaint, the applicant sought to rely upon factual matters that were not set out in the prosecution opening or which were inconsistent with its contents. We reminded the applicant that he was sentenced on the facts set out in the prosecution opening and assured him that our decision would be based upon those facts. Following that assurance, the applicant largely desisted from seeking to introducing new factual matters.

(b) The applicant sought to explain what he intended by some of the text messages and his motives in seeking to meet AB again following the offending the subject of charge 1, which he said was to discuss AB's confusion regarding his sexuality. After we explained to the applicant that the text messages speak for themselves and it was not open to him to seek to provide to us an explanation which was inconsistent with his plea of guilty to the grooming charge, the applicant largely desisted from referring to his subjective intentions.

(c) The applicant submitted that the sentencing judge failed to give adequate weight to the harm he and his daughters had suffered as a result of the media report of his offending and the subsequent online trolling. He stated that, as a result of being falsely described as a rapist and paedophile in the media report, some family members and many of his friends ceased to have any contact with him. He said that it was distressing that it took the police a week to act on his request to close his Facebook account which contained the online trolling. He stated that the damage he had suffered as a result of the media report was a worse punishment than his custodial sentence. He said that, whilst he deserved to be incarcerated because he was guilty of the offences, the punitive consequences of the media report and the online trolling should have resulted in a lower sentence.

(d) The applicant contended that, as a result of the restrictions that custodial authorities have implemented as a result of the COVID-19 pandemic, his term of imprisonment was onerous. In particular, he emphasised that many programs had been suspended, including programs that had to be completed prior to parole being granted.

(e) The applicant stated that he had been informed by two sources within the prison that parole was difficult to obtain in the current circumstances.

(f) The applicant said that his sentence was excessive when compared to the sentence of 6 years' imprisonment which was imposed upon George Pell for much more serious offending.

(g) The applicant argued that, having regard to the unpremeditated and brief nature of his offending and the mitigating factors in his favour - including his early guilty plea and remorse - the overall sentence of 3 years and 9 months' imprisonment was 'too long for what [he had] done'.

42 The Crown submitted that the applicant's offending fell within 'the middle of the range of objective seriousness' for the offence the subject of charge 1. It contended that the offence of sexual penetration of a child under 16 is inherently serious and there is no example of the offence that is not 'objectively serious'. As on the plea, the Crown conceded that some common aggravating features were absent. However, it argued that there were relevant aggravating features, including:

(a) the significant disparity of age and maturity between the applicant and AB;

(b) the applicant's awareness that AB was under 16 years of age prior to the applicant physically meeting AB;

(c) the applicant's consciousness that his actions were wrong, as indicated by his initial refusal to participate in sexual activity minutes before the offending;

(d) AB's expressed vulnerability to the applicant - AB told the applicant that he was going through a difficult time in terms of his sexuality; and

(e) the fact that the applicant did not use a condom, thus exposing AB to the risk of sexually transmitted infection.

43 The Crown submitted that it was antithetical to the instinctive synthesis approach to sentencing for the applicant to seek to impugn the sentencing judge's assessment of the objective gravity of the offending by comparing the sentence imposed, especially the s 6AAA declaration, to the standard sentence. The Crown contended that the fact the s 6AAA declaration applied to two charges added to the constraints on how s 6AAA declarations could be used on appeal.

44 In respect of the cases to which the prosecutor referred on the plea, the Crown argued that none of the sentences in those cases were meaningful comparators to the present case and, consequently, the sentencing judge could only give limited weight to current sentencing practices.

45 In our opinion, the proposed ground is not reasonably arguable.

46 We accept that the applicant's offending was neither premediated nor prolonged and lacked some of the aggravating features - such as inducements, threats or breach of trust - that characterise the offending in some other cases. However, the applicant's offending was serious and his moral culpability was high for the following reasons:

(a) The disparity of 50 years in the ages of the applicant and AB.

(b) Although the applicant was not initially aware that AB was under 16 years of age, he became aware of that fact prior to the offending. As stated by the sentencing judge, the applicant's moral culpability was not lessened because he thought AB was 14 years old rather than 12.

(c) AB informed the applicant that he was 14 years old before they met, when the applicant was in his car and AB was in his father's house. Accordingly, the applicant had ample opportunity to drive away and avoid any contact with AB. However, he chose to proceed with the meeting. When AB initiated sexual contact, the applicant again had the opportunity to desist but chose not to do so.

(d) As a result of AB telling the applicant that he was 'scared' and that he was going through a difficult time in terms of his sexuality, the applicant was aware that AB was not only young and immature, but also vulnerable.

(e) Charge 1 is a rolled-up charge involving two acts of sexual penetration, albeit that they were separated by a very short period of time.

47 We accept that the applicant could rely upon significant factors in mitigation, including his early guilty plea, remorse and good prospects of rehabilitation. However, these mitigating factors do not indicate that any aspect of the sentence is manifestly excessive. In the absence of these mitigating factors, the sentence would have been significantly higher.

48 In our opinion, in the light of the gravity of the offending, the applicant's high moral culpability and the mitigating factors upon which he relied, the sentence imposed by the sentencing judge was well within the range of sentences available in the proper exercise of the sentencing discretion. That is borne out having regard to the fact that the sentences on charges 1 and 2 constitute a small proportion of the maximum sentences for those offences and the fact that the sentence imposed on charge 1 is significantly lower than the standard sentence applicable to that charge.

49 The declaration the sentencing judge made under s 6AAA of the Sentencing Act does not assist the applicant. The purpose of such a declaration is to indicate the discount provided for a plea of guilty. It is not a distinct component of a sentence and therefore, ordinarily, any alleged irregularity with it cannot be a basis for establishing sentencing error. In the present case, the fact that the sentence of 6 years and 6 months' imprisonment which the sentencing judge declared under s 6AAA exceeds the standard sentence of 6 years for charge 1 does not indicate error in the exercise of the sentencing discretion. The standard sentence is a legislative guidepost and thus one of the multiple factors relevant to sentencing for the offence the subject of charge 1.[10] In any event, as noted by the Crown, the declaration under s 6AAA is not confined to charge 1, but applies to both charges 1 and 2.

50 The comparable cases to which the parties referred - including the sentence imposed upon George Pell which fell away once his conviction was set aside - were decided on their own facts and do not provide any assistance in the present case.

51 We accept that the current custodial conditions arising from the COVID-19 pandemic render the applicant's incarceration more burdensome. However, this issue was raised by the applicant's counsel on the plea and the sentencing judge took it into account.[11]

52 Decisions relating to parole are matters involving executive action to which we cannot have regard.[12]

53 We accept the applicant's submission that the media report and the online trolling that it spawned has had serious adverse consequences for him and his family. We have no doubt that the vile online trolling caused distress to the applicant's daughters - who were completely innocent of any wrongdoing - and has had a significant impact upon the applicant's life, including his relationships with friends and family. However, we reject his contention that the sentencing judge did not give adequate weight to this matter.

54 As is apparent from the extract from the sentencing judge's sentencing remarks which we have set out at [34] above, the sentencing judge acknowledged the adverse consequences of the media reporting for the applicant and his daughters, including the rendering of his incarceration more onerous, and stated that she gave some weight to these matters. The sentence of 3 years and 6 months' imprisonment that the sentencing judge imposed for charge 1 is relatively moderate having regard to the gravity of the offending, the applicant's high moral culpability, the maximum sentence of 15 years' imprisonment and the standard sentence of 6 years' imprisonment. It can thus be safely inferred that, in imposing such a moderate sentence, the sentencing judge gave appropriate weight to all the mitigating factors upon which the applicant relied, including the adverse consequences of the media report and the online trolling.

55 The non-parole period of 2 years and 6 months' imprisonment that the sentencing judge fixed represents 67 per cent of the total effective sentence and is thus unremarkable.

56 It follows from the above analysis that we are not satisfied that any aspect of the sentence imposed by the sentencing judge is manifestly excessive.

57 For the above reasons, the application for leave to appeal will be refused.

[1] DPP v Bouris [2020] VCC 1486 ('Sentencing remarks').

[2] Sentencing Act 1991 ss 5A, 5B; Crimes Act 1958 s 49B(3). See n 10 below.

[3] Bouris v The Queen [2021] VSCA 123.

[4] Applicant's written case dated 2 November 2020, n 2.

[5] In his oral submissions, the applicant informed us that AB lowered his pants rather than removing them. The distinction is immaterial for present purposes. See also [41(a)] below.

[9] See s 6AAA of the Sentencing Act and the table at [1] above.

[10] See Sentencing Act s 5B(2)(a) and Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 464-5 [4], 470-1 [25], 479 [55], 490 [106]. Section 5A(1)(b) of the Sentencing Act provides that 'the period specified as the standard sentence for [an] offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness'.

[11] See [33] above.

[12] Sentencing Act s 5(2AA)(a).