Boucher v The Queen
[2022] VSCA 3
•28 January 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0121
| CHRISTOPHER BOUCHER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 November 2021 |
| DATE OF JUDGMENT: | 28 January 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 3 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1165 (Judge Wraight) |
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CRIMINAL LAW – Appeal – Application for leave to appeal conviction – Procure child to engage in sexual activity outside of Australia – Use carriage service to solicit child pornography using carriage service – Transmit indecent communications to a person under 16 using carriage service – Use carriage service to groom person under 16 for sexual activity – One child complainant, and one ‘complainant’ who was undercover police operative posing as child – Criminal Code (Cth), ss 272.14, 474.19, 474.27A, 474.27 – Whether judge erred in admitting photo of a photo of a screenshot – Whether judge erred in admitting tendency evidence – Whether judge erred in refusing to discharge jury because of prosecutor’s remarks about mental health – Criminal Procedure Act 2009 (Vic), ss 276, 280, 295 – Evidence Act 2008 (Vic), ss 57, 97 and 137 – Jury Directions Act 2015 (Vic), s 23 – Larsen (a pseudonym) v Director of Public Prosecutions (Cth) [2020] VSCA 335 distinguished − Leave to appeal conviction refused.
CRIMINAL LAW – Appeal – Application for leave to appeal sentence – Apparent leniency of total effective sentence of three years’ imprisonment with only six months to be served for conviction on five charges of engaging in online sexual communications over months involving two persons under (or apparently under) 16 – Whether applicant’s physical health issues established a ‘serious risk of imprisonment having a grave effect’ – Whether principles under R v Verdins (2007) 16 VR 269 applied correctly concerning mental health – Whether judge failed to acknowledge differences between complainants – Whether judge erred in applying principle of totality – Criminal Procedure Act 2009 (Vic), s 280 – R v Eliasen (1991) 53 A Crim R 391; R v Smith (1987) 44 SASR 587; R v Bailey (1988) 35 A Crim R 458; R v Verdins (2007) 16 VR 269 considered – Corrections Act 1986 (Vic), ss 20 and 47 – Leave to appeal sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Marsh with Mr J Murphy | Victoria Legal Aid |
| For the Respondent | Ms K Breckweg with Mr A Sprague | Ms A Carlander-Munro, Solicitor for Public Prosecutions (Cth) |
PRIEST JA
BEACH JA
MACAULAY AJA:
Introduction
After a trial by jury in the County Court, Christopher Boucher, the applicant,[1] was convicted of a number of child sexual offences contrary to the Commonwealth Criminal Code, and acquitted of three further charges. Following a plea hearing on 27 July 2021, the applicant was sentenced by Judge Wraight on 18 August 2021, according to the below table:[2]
[1]The applicant is now 28 years old, his date of birth being 31 March 1993.
[2]The Queen v Boucher [2021] VCC 1165 (‘Reasons’).
Charge on Indictment
Offence
Maximum
Sentence
Commencement/ Accumulation
3 Procure a child to engage in sexual activity outside of Australia contrary to s 272.14(1) Criminal Code (Cth)
15 years 2 years’ imprisonment 18 August 2021 4 Use carriage service to solicit child pornography using a carriage service contrary to s 474.19(1) Criminal Code (Cth)
15 years 2 years’ imprisonment 18 August 2021 5 Transmit indecent communications to a person under 16 using a carriage service contrary to s 474.27A(1) Criminal Code (Cth)
7 years 18 months’ imprisonment 18 August 2021 6 Use carriage service to groom a person under 16 years of age for sexual activity contrary to s 474.27(1) Criminal Code (Cth)
12 years 18 months’ imprisonment 18 months after commencement of sentence on charges 3 and 4 7 Use carriage service to solicit child pornography material contrary to s 474.27(1) Criminal Code (Cth)
15 years 18 months’ imprisonment 18 months after commencement of sentence on charges 3 and 4 Total Effective Sentence: 3 years’ imprisonment Recognisance Release Order: Pursuant to s 20(1)(b) Crimes Act 1914 (Cth) the applicant was ordered to be released after serving 6 months of the sentence of imprisonment, upon entering a recognisance in the amount of $3,000 to be of good behaviour for a period of three years, and to complete the Sex Offender Treatment Program within a period of two years after release. Pre-Sentence detention declared: Nil. Other relevant orders: Reporting pursuant to s 34 of the Sex Offenders Registration Act 2004 for life.
Forfeiture of laptop, pursuant to s 23ZD(1) Crimes Act 1914 (Cth).
The applicant has sought leave to appeal the conviction and, failing that, the sentence imposed.
Although the trial was conducted by Judge Wraight (commencing 3 December 2020), Judge Higham made pre-trial rulings on 27 and 30 August 2020, 1 September 2020 and 15 October 2020 and conducted the special hearings for the child witnesses whose recorded evidence was later played to the jury at the trial.
Charges 3, 4 and 5 centred on the applicant’s online communications with Amber Abbott,[3] a 14-year-old girl in Alberta, Canada, over a 14-day period in February 2019. Charges 6 and 7 involved the applicant’s online communications with an Australian Federal Police (‘AFP’) officer posing as a 15-year-old girl, Hannah Davies, in July 2019.
[3]’Amber Abbott’ is the pseudonym for one of the complainants which was used by the sentencing judge in the reasons for sentence. In this judgment, to prevent prejudice to the administration of justice, we will adopt the pseudonyms used by the sentencing judge.
The applicant, then aged 25, communicated with Amber under his own name using the online platform Snapchat. Snapchat allows account holders to exchange pictures and text messages, known as ‘snaps’, that are usually only available for a short time before they become inaccessible to their recipients. The prosecution alleged that, in the course of his exchanges with Amber, the applicant set up an additional Snapchat account for a fictional person, Jason Renaldo (‘the Renaldo account’), by which he communicated with Amber and her friends, Mia Malcolm[4] and Sienna Hardy,[5] while pretending to be ’Renaldo’. Mia was the complainant for some of the charges on which the applicant was acquitted.
[4]The pseudonym used by the judge.
[5]The pseudonym used by the judge.
Evidence of the Snapchat communications from the Renaldo account was admitted into evidence at the trial against objection by the applicant. In particular, Judge Higham (ruling upon the pre-trial objections to evidence on 27 August 2020) permitted the admission of four messages (displayed on a single screen) purportedly sent by ‘Renaldo’ to Sienna in about mid-January 2019. Sienna had captured a screenshot of the messages, received at 5:28 am. Sienna displayed the screenshot on her phone to Mia who took a photograph of it with her phone. Mia edited the photograph on her phone, including by adding a comment. Mia subsequently displayed her photograph of the screenshot from Sienna’s phone to a Canadian police officer, Constable Heather Bangle, who then took a photograph of the image on Mia’s phone (‘the Renaldo-Sienna screenshot’). It was Constable Bangle’s photograph that was admitted into evidence.
Judge Higham also ruled that another series of messages sent in an exchange with Amber on 14 February 2019 was also admissible. Those messages, received on Amber’s Snapchat account between 11:27 pm and 11:28 pm in Alberta, were also sent from the Renaldo account (‘the Renaldo-Amber messages’).
In a written ruling on 15 October 2020, Judge Higham determined other objections to the admission of tendency evidence which was the subject of a notice served by the prosecution in accordance with s 97(1)(a) of the Evidence Act2008 (Vic) (‘Evidence Act’).[6]
[6]DPP (Cth) v Boucher [2020] VCC 1641 (‘DPP v Boucher’).
After the conclusion of the trial, Judge Wraight dismissed an application made by the applicant to discharge the jury. That application was made after the prosecutor’s closing address during which the prosecutor referred to the applicant’s mental health around the time of the offending.
The applicant proposed the following grounds of appeal against conviction:
(a) Proposed ground 1: A substantial miscarriage of justice occurred by reason of the admission into evidence of (a photograph of a photograph of a screenshot of) Snapchat messages from ‘Renaldo’ [ie, the Renaldo-Sienna screenshot].
(b) Proposed ground 2: A substantial miscarriage of justice occurred by reason of the admission of tendency evidence to prove:
(i) that the accused was the author of the [Renaldo-Amber messages]; and/or
(ii) that the accused believed that ‘Hannah’, the fictional complainant on charges 6 to 8, was under 16 years of age.
(c) Proposed ground 3: A substantial miscarriage of justice occurred by reason of comments made by the prosecutor during his closing address and the refusal of the learned trial judge to discharge the jury.
As is evident from these proposed grounds against conviction, the applicant contends that by reason of alleged errors by Judge Higham (in deciding to allow the admission of certain evidence) and Judge Wraight (in refusing to discharge the jury), a substantial miscarriage of justice occurred. Section 276(1)(b) of the Criminal Procedure Act2009 (Vic) (‘Criminal Procedure Act’) provides that this Court must allow an appeal against conviction if it is satisfied that there has been a substantial miscarriage of justice as the result of an error or irregularity in or in relation to the trial.
Background[7]
[7]This description is drawn from the Reasons and Prosecution Submissions on Sentence tendered as Exhibit P2 on the Plea.
Charges 3, 4 and 5 (Amber Abbott)
At the time of the offending, Amber was aged 14 years and in year 10 at high school. She lived in Alberta, Canada, with her grandmother.
The applicant met Amber online through her friend, Mia. Mia was aged 13 years and also resided in Alberta, Canada. Mia had been communicating with the applicant online for at least two to three weeks via Snapchat. Amber was having a sleepover at Mia’s house when Mia sent the applicant a photo of Amber via Snapchat. The applicant replied ‘She’s pretty, can I have her Snapchat?’. Mia gave the applicant Amber’s Snapchat username, which the applicant used to initiate communications with her.
During their first conversation, Amber told the applicant that she was 14 years old, a fact which she repeated throughout their communications. The applicant initially told the victim that he was 17 years old and from Australia. The applicant sent Amber a photo of a bodybuilder named Jeff Seid and said that it was a photo of himself. Amber believed it to be a photo of the applicant. The applicant told Amber she was pretty and that he wanted to talk to her in ‘a relationship way’ and to go behind Mia’s back. Amber gave evidence that the applicant said things that ‘made me feel special, which I haven’t felt a lot.’
During communications between Amber and the applicant, the applicant sent Amber screenshots of conversations he was having with other females about having sex with him. This made Amber feel jealous. The applicant continued to send photos of Jeff Seid representing that they were photographs of himself. The applicant communicated with Amber daily and threatened to kill himself should she stop communicating with him.
On one occasion, the applicant asked Amber to send a photo of her breasts. On another occasion, when she told the applicant she was going for a shower, he asked her to send him a video of herself in the shower. Amber gave evidence that she did what was asked of her because she felt like she was in love with the applicant. (Charge 4).
Late in their communications, after the applicant had revealed his real name and age, Amber asked the applicant to provide some identification. The applicant sent her a photograph of his passport identifying his name, date of birth and passport number but with his thumb covering the photograph of himself. At another stage, they had an argument. The applicant told Amber that she had to play a ‘Simon says’ game with him in order to gain his trust back. The applicant gave her a list of ten tasks to perform. The first task was for her to record and send a video of herself, topless and sucking on a brush. The second task was for her to record and send a video of herself performing the same act and, in addition, spitting on herself and rubbing the brush on her breasts. Amber complied with the applicant’s requests.
The third task was for Amber to record a video of herself playing with her vagina with the brush. She refused to do so. The applicant then told her she could ‘skip to level 10’ by engaging in a sexual video call with him. She agreed to engage in the video call. During the call, she complied with the applicant’s instructions to show him her breasts whilst he masturbated on camera, to the point of ejaculation. (Charge 3).
Using the Renaldo account, the applicant communicated with Mia, Amber and Sienna pretending that ‘Renaldo’ was the applicant’s friend. He staged an escalating conflict between himself and ‘Renaldo’. The prosecution alleged that the applicant, as ‘Renaldo’, sent messages to Sienna from the Renaldo account, claiming that the applicant was engaging in sexual activity with other girls. These were the messages in the Renaldo-Sienna screenshot. The authenticity of these messages was disputed at trial and they are the subject of proposed ground 1. Later, the applicant told Amber that he had killed ‘Renaldo’ because ‘Renaldo’ was trying to expose the applicant’s activities.
On 8 or 9 February 2019, Mia used her phone to record a video of Amber and herself communicating with the applicant on Amber’s phone via a video call through Snapchat. During the call, Amber said to the applicant ‘you have my nudes’ to which the applicant responded ‘you set it up’. Amber told the applicant that he had messed up her life and she had spent many nights crying because of him. The applicant claimed that the girls were ‘terroris[ing]’ him, and told them that he was going to retaliate by disseminating their nude photos and a recording of their video calls. In response, Mia told the applicant that the photos she had sent him were fake. The applicant replied ‘I don’t give a fuck, I [will] still leak them onto the net’. Amber gave evidence that she felt ‘scared and really hurt’ to hear that the applicant would disseminate sexualised videos depicting her.
The prosecution alleged that, a few days later, the applicant then sent Amber the Renaldo-Amber messages using the Renaldo account, this time claiming that he, the applicant, had hacked into the Renaldo account. In the course of these messages, the applicant threatened to ‘leak’ Amber’s ‘stuff’ if she didn’t ‘video call me and [sic] get me off tonight’. It was the prosecution case that the applicant intended that Amber would understand the reference to her ‘stuff’ to mean the sexual videos that she had sent him earlier. (Charge 5). Some of the exchanges on that occasion were disputed and are (in part) the subject of proposed ground 2.
As a result of the applicant telling Mia and Amber that he had killed ‘Renaldo’, they reported what had occurred to a teacher at their school, and to the police in Alberta. On 6 March 2019, the evidence obtained by the Canadian police was reported to the AFP via a US agency known as the National Centre for Missing and Exploited Children (‘NCMEC’).
Charges 6 and 7 (‘Hannah Davies’)
Upon receiving a report from the NCMEC, the AFP deployed an AFP member, Emma Dimeska, to conduct a covert online operation in relation to the applicant.
On 30 April 2019, Ms Dimeska located the applicant’s Facebook profile, and, using an account that appeared to belong to a girl aged under 16 with the username ‘Hannah Davies’, sent the applicant a Facebook friend request. The applicant accepted the request. The applicant and Ms Dimeska communicated using the Facebook Messenger application.
Ms Dimeska pretended that she had sent the friend request because she believed the applicant was someone she knew with the same name and lived in Yass. The applicant told her that he was not that person. Ms Dimeska continued to communicate with the applicant over the next few weeks. She pretended to be a teenage girl who lived with her mother and, on 6 May 2019, told the applicant that she was ’14 … almost 15’. Initially, the applicant expressed disbelief that ‘Hannah’ was genuine and continually challenged her to convince him to believe her. On 6 May 2019, the applicant said to ‘Hannah’, ‘for all I know I could be letting a 40 year old man “get to know me” lmao’.
The applicant communicated with ‘Hannah’ for five days in May 2019, and then did not further communicate until 8 July 2019. Between 10 July and 12 July 2019, after the applicant had continued to express disbelief that ‘Hannah’ was a genuine person, Ms Dimeska sent three images to the applicant that depicted a young female that she said was ‘Hannah’. Upon receiving these pictures the applicant responded ‘it’s not you lmao’, ‘you’re very suspicious… that girl looks 18+’.
On 14 July 2019, Ms Dimeska created a Snapchat account with the username ‘Spannahdavies’ that appeared to belong to a girl aged under 16. The following day, she told the applicant that she ‘got Snapchat this morning’. The applicant asked for her username, which she provided and the applicant added her as a friend on Snapchat. They then communicated using Snapchat.
During their communications, the applicant continued to challenge ‘Hannah’ to convince him that she was a genuine persona. On 15 July 2019, the applicant said ‘a live snap would prove that the picture is really you, whereas on Facebook you can just send pictures saved from anywhere’. Ms Dimeska responded by sending an image depicting the face of a young female that she said was ‘Hannah’. The following exchange then took place:
Applicant: Okayyy maybe I believe that’s really you now
‘Hannah’: Duh hahah
Applicant: Stilllll suspicious
‘Hannah’: Omgggggg What other thing can I use to show you Like not this or Facebook then what other app
Applicant: This is the best app to use
‘Hannah’: Hold on. Mum wants me for a min
Applicant: But still suspicious okayy
‘Hannah’: Back. Umm why is this the best
Applicant: Because snaps can’t be faked like they can with other apps
‘Hannah’: Ohhh ok Send one of you then
Applicant: I don’t think you’ve earnt that yet Still suspicious, plus it seems inappropriate since I’m 26
The prosecution case, which the jury must have accepted by their verdict, was that, at least from this point in time onwards, the applicant believed that Ms Dimeska was a child aged under 16, but pretended to remain suspicious, with the intention that this would convince her to send him images or videos depicting herself.
The applicant suggested that ‘Hannah’ send him a video to prove that she was genuine. In response, she sent a two second video depicting the same young female that she had earlier stated was ‘Hannah’. The applicant replied that he was ‘still suspicious’.
Between 20 and 22 July 2019, the applicant and ‘Hannah’ communicated with each other using both Facebook Messenger and Snapchat. On 20 July 2019, the applicant asked ‘Hannah’ via Facebook Messenger ‘how was your birthday’, referring to her 15th birthday. ‘Hannah’ replied ‘another year older’. The applicant said he still wanted a video ‘proving that you’re real’. ‘Hannah’ replied that she had already sent him photos. The applicant responded ‘you could show me moreee’ and asked her to say ‘hi Chris’ in a video. ‘Hannah’ sent a video of the young female purporting to be Hannah holding her fingers to her mouth and whispering the applicant’s name.
Upon receiving this video, the applicant said ‘suck on one of your fingers for me just to make sure’. The applicant described the female depicted in these images and videos as ‘adorable’ and ‘seductive’. ‘Hannah’ said that she was going to have a shower and wash and brush her hair. The applicant asked her if he could watch her having a shower and ‘getting all wet and soapy’. ‘Hannah’ said he had to provide a picture of himself first to which the applicant responded ‘Afterrrrr, you’ll def have earnt my trust after’.
That same evening, the applicant sent ‘Hannah’ a picture via Snapchat of a finger with a face drawn on it and said ‘Thereeee My faceee’. ‘Hannah’ replied that that did not count. The applicant said ‘Lemme watch you shower thoughh :(.’ ‘Hannah’ asked what that would prove to which the applicant replied ‘It would prove everythinggg And earn my trusttt’. ‘Hannah’ refused the request and asked the applicant to show her his face first. The applicant responded ‘Nahhh You could be a cop for all I know haha…’
The following day, 21 July 2019, the applicant again asked ‘Hannah’ via Snapchat to let him watch her in the shower. The following exchange then took place:
‘Hannah’: What exactly would you want me to do in the shower. I need a list haha
Applicant: If I go to the trouble of writing a list do you promise you’ll do it
‘Hannah’: I kinda mostly promise I think haha Quick tho coz mum is flipping hahahaQuickkk
Applicant: You’re justttt gonna let me watch youuu get undressed and run water on your bodyyy, massage and touch yourself all over getting all wet and soapy Simpleeee
‘Hannah’: Touch myself like everywhere .. Even .. There?
Applicant: Of courseeee
Applicant: There’s your listtttt
Later that day, the applicant asked ‘Hannah’ to show herself to him before she went to sleep instead. The following exchange subsequently took place:
‘Hannah’: I don’t feel sexy or seductive or whatever else you said Chris
Applicant: Welllll you definitely areeeee
‘Hannah’: :(
Applicant: Just that video with your prettyyy little face and your fin-gers held up to your mouth saying my name drove me cra-zyyyy
‘Hannah’: Really ?
Applicant: Yesssss haha reallyyyy omgggg
‘Hannah’: Hmmm
Applicant: Cmonnnn
‘Hannah’: What do you mean it drove you crazy. Like what happened
Applicant: Likeeee it turned me onnnn anddd I couldn’t stop thinking about youuu
‘Hannah’: Turned you on like .. You know ? Haha What were you thinking
Applicant: Likeeemade me harddd asfffff and made me thinkkk about doinggg naughtyyy things with youuu
(Charge 7).
At 8:33 am on 22 July 2019, ’Hannah’ sent the message ‘:)’ to the applicant via Facebook Messenger. She told him she was at school. The applicant continued to flirt with her. He dared her to give a male student, Harry, ‘a hj under the desk’ and said ‘I’d be under the desk eating you right now tbhhh.’ At 6:45 pm, the applicant sent ‘Hannah’ a message saying ‘You’re gonna make my day even betterrr by conquering your shyness for me tonighttt tho’, and later one saying ‘I wouldn’t mind licking gelato offff your bodyyy’. (Charge 6).
On 23 July 2019, the applicant was arrested at his home and interviewed by police. He admitted to communicating with Mia and Amber but claimed that they had both told him they were aged 18. He denied that his communication was sexualised. The applicant admitted that he had engaged in sexualised communication with ‘Hannah’, but claimed that he believed that she was an adult who was pretending to be younger.
Proposed ground 1[8]
[8]Above [10].
Proposed ground 1 concerned the admission of the Renaldo-Sienna screenshot sent in mid-January 2019.
The applicant particularised proposed ground 1 as follows:
(i) The prosecution relied upon a screenshot, showing the time 5:28 am, containing four messages purportedly from a ‘Jason Renaldo’ which the prosecution alleged were sent by the accused.
(ii) On the prosecution case, the messages were purportedly sent by the accused to an [Sienna], captured in a screenshot taken by [Sienna], displayed on [Sienna]’s phone and photographed by [Mia], edited by [Mia] and then displayed on her phone and photographed by Constable Heather Bangle.
(iii) The accused denied sending the messages the subject of the screenshot and objected to their admissibility.
(iv) Judge Higham of the County Court ruled the screenshot admissible on 27 August 2020.
(v) Judge Higham erred in admitting the evidence contrary to ss 56(2), 59 and/or 137 of the Evidence Act, as the evidence was either irrelevant, or hearsay that did not fall within the admissions exception, or its probative value was outweighed by the danger of unfair prejudice to the accused.
The four messages in the Renaldo-Sienna screenshot, each under the banner name ‘Jason Renaldo’, were as follows:
‘Renaldo’: Anyway tell ur friend chris fucked like 3 girls last night and make sure he don’t find out it came from me
‘Renaldo’: Cos he acts like he loves her n shit but he fucked like 3 girls in one night
She should know he’s a man whore
‘Renaldo’: Tell her he has a micro penis
One of the girls left crying cos he didn’t use a condom and came in her on purpose and she’s not on birth control
‘Renaldo’: Yea and the other two were sisters who both liked him so he convinced them into a threesome and fucked them both
He treats girls real bad
Although the Renaldo-Amber messages are more directly the subject of proposed ground 2, it is convenient to set them out here. After the applicant had the Snapchat video call with Amber (recorded by Mia) on 8 or 9 February 2019, on about 14 February 2019, Amber exchanged messages with ‘Jason Renaldo’ which she captured in two screenshots bearing the times 11:27 pm and 11:28 pm respectively. Those exchanges were as follows:
11:27 pm
‘Renaldo’: Well if you dont video call me amd get me off tonight theyre getting leaked so
Cause i deserve to have you get me offff
Amber: Why would you say that?
‘Renaldo’: I’m serious [emoji]
Amber: So I have to video call you tonight or your leaking my stuff?
‘Renaldo’: Yes [emoji]
Amber: Wtf
‘Renaldo’: Just dont tell herrrr, play with me and keep it betweeen us [emoji]
Amber: Why I need advice
‘Renaldo’: Keeeeep it betweeewn us
If you play along and youre a good girl i’ll [text obscured]
11:28 pm
Amber: Wait so how are you texting me off of Jason’s account?
‘Renaldo’: I hacked into it Imao I have access on his email address so i reset his sc password
Amber: Oh
‘Renaldo’: Do we have a deal
Amber: Idk
‘Renaldo’: Cmonnn [emoji]
Amber: Can I please think about it?
‘Renaldo’: No
Not at this time Imao
Amber: 10 mins please
‘Renaldo’: [graphic] [emoji]
In his record of interview the applicant appeared to accept that he had sent the Renaldo-Amber messages at 11:28 pm, but when shown the exchanges at 11:27 pm he denied sending those. Coming soon after the video call on 8 or 9 February 2019 in which Amber referred to the applicant having her 'nudes', the applicant’s statements in the Renaldo-Amber messages at 11:27 pm (if properly attributable to him) implied that he had ‘stuff’ received from Amber which would embarrass her if leaked.
Judge Higham described his understanding of the context within the trial for the Renaldo-Sienna screenshot and the Renaldo-Amber messages as follows:
… [the applicant] then participated in a video call in early February, either the 8th or the 9th, with [Amber] and [Mia]. From the transcript of that call, [Amber] expresses her anger at the [applicant], at the fact that the [applicant] has her nude pictures, given his age, and the [applicant] appears to accept that he received nude pictures from her.
The [applicant] takes no issue that he is a participant in that video call. After the video call, the [applicant] sent an image of his passport, but with his passport picture obscured. And on 14 February 2019, using the Jason Ronaldo account, he threatened to leak [Amber]'s stuff if she did not engage in a video call, enabling him to get off. Stuff is presumably a reference to the images that he had, and get off is presumably a reference to some sexual gratification on the part of Mr Boucher. And this exchange is Charge 5.
Of significance to this application is the agreed fact that the [applicant] used two Snapchat profiles to communicate with the three Canadians, those profiles being Christopher Boucher and Jason Ronaldo. In the course of communications with the three Canadian adolescent females, an internal narrative or scenario was created by the [applicant] whereby one persona or Snapchat profile was in conflict with the other persona or Snapchat profile. Mr Ronaldo would denigrate Mr Boucher as being sexually unfaithful to, in particular, [Amber], reinforcing her sense of vulnerability and dependence, and with the apparent intent of increasing [Amber]'s willingness to satisfy his sexualised demands.
Within the conflict of this internal narrative, Mr Boucher becomes aware of the activities of Jason going behind his back and speaking to the complainants. Jason, it seems, then becomes fearful of retribution by Mr Boucher, and is forced to flee, and Mr Boucher then kills Ronaldo and hacks into his Snapchat account, and communicates with [Amber] using the Ronaldo account, and when asked, demonstrating that he has been able to hack into it.
As indicated, there is no dispute that the [applicant] used both Snapchat accounts in those profile names. During the course of argument, the issues in the trial were further clarified by Miss Blair on behalf of the [applicant] as being, firstly, that Mr Boucher did not participate in sexualised communication or activity with either of the Canadian complainants. Nor was he the recipient of any files containing or depicting sexualised images
In summary, the applicant did not dispute that he had engaged in online communications with Amber and Mia. Nor did he dispute having had communications using both the account in his own name and the fictionalised Renaldo account. He also did not dispute that he had had the conversation with Amber (recorded by Mia) on 8 or 9 February 2019 in which Amber had expressed distress about the fact that the applicant had nude images of her. He did dispute, however, that he had participated in sexualised communications with the girls, had received files from them containing sexualised images and that he was the author of the particular messages from ‘Renaldo’ in the Renaldo-Sienna screenshot and the Renaldo-Amber messages (or at least some of those).
Before Judge Higham, the applicant argued that the Renaldo-Sienna screenshot and the Renaldo-Amber messages were both inadmissible because –
(d) their probative value was outweighed by the danger of prejudicial effect contrary to s 137 of the Evidence Act; and
(e) insofar as those messages contained admissions, the evidence should be excluded under s 90 of the Evidence Act as being unfair in the circumstances.
Judge Higham held that the probative value of the messages was high and that any risk of unfair prejudicial effect could be offset by appropriate directions given at trial. In his ruling, the judge chiefly focused on the probative value of the Renaldo-Amber messages of 14 February 2019 and their capacity to support the allegations made in Charge 5. But the judge also held that if the applicant was found to have been operating the Renaldo account on 14 February 2019, the jury might reasonably infer the applicant was also the author of the Renaldo-Sienna screenshot to Sienna in mid-January 2019. Both the Renaldo-Sienna screenshot and the Renaldo-Amber messages, in the judge's view -
… has the capacity, of course, to support the evidence of the two complainants … as to the manipulation employed by their correspondent. It also goes directly to the primary issue in the trial, whether Mr Boucher participated in sexualised communication or activity with either complainant, and whether he was the recipient of any files containing or depicting sexualised images.[9]
[9]DPP v Boucher [ruling] (Unreported, County Court of Victoria, Judge Higham, 27 August 2020).
The applicant submitted that Judge Higham erred in admitting the evidence of the Renaldo-Sienna screenshot, purportedly from ‘Renaldo’, because the evidence was irrelevant, inadmissible hearsay, or should have been excluded pursuant to s 137 of the Evidence Act.
Relevance
In his ruling given on 27 August 2020, Judge Higham noted that, as he understood it, the applicant’s counsel ‘concedes … the relevance of both these items’. Counsel appearing for the applicant in this Court (not the same counsel as trial counsel) questioned the accuracy of Judge Higham’s statement pointing out that an objection to the relevance of both sets of Renaldo messages had clearly been taken in the written submissions filed before the pre-trial argument.
However, having read the exchanges between Judge Higham and defence counsel during submissions, it is crystal clear that despite originally having queried relevance, the applicant conceded that the Renaldo-Sienna screenshot and the Renaldo-Amber messages were both relevant. Nevertheless, defence counsel pressed the argument that the evidence of the Renaldo-Sienna screenshot ought to be excluded because its probative value was outweighed by the danger of unfair prejudice to the applicant. In addressing the probative value of the evidence, the applicant contended its strength was weakened because the attribution of authorship depended upon the drawing of inferences and, in any event, the messages existed without any real explanatory context.
In other words, defence counsel conceded that, assuming the Renaldo-Sienna screenshot was found to be a genuine communication from the applicant, the messages contained within it could rationally affect the probability of the existence of a fact in issue. Plainly, due to its content, it could directly affect the probability of whether the applicant engaged in sexualised communications with the complainants. It could also, indirectly, affect the probability of whether the applicant used manipulation to request Amber to provide sexualised images of her, which the applicant subsequently received.
Section 57 of the Evidence Act provides that if the determination of the question whether evidence adduced by a party is relevant depends on the court finding whether the evidence is what the party claims it to be, the court may find the evidence relevant if it is reasonably open to make that finding. Further, s 58 provides that in determining the relevance of a document, the court may examine it and draw any reasonable inference from it including as to its authenticity or identity. Section 183 of the Evidence Act, a provision of more general application, is to like effect.
In conceding relevance, counsel appearing before Judge Higham accepted that there was evidence that was at least capable of establishing that the Renaldo-Sienna screenshot came from the applicant. That evidence included:
(f) that in February 2019, investigators found that the internet protocol address for the Renaldo account and the internet protocol address for the applicant’s Snapchat account in his own name were both linked to the residential address of the applicant;
(g) that the applicant accepted that he had created and operated the Renaldo account;
(h) the content of the messages themselves;
(i) the relationship between that content and the wider context of the Renaldo narrative derived from other messages, no longer available, as described by the complainants; and
(j) the evidence from Mia and Constable Bangle as to the source of the image of the Renaldo-Sienna screenshot.
Added to that, from the examination of the image itself, one can draw inferences as to the probability that the image is, or is not, what it purports to be, namely a photograph of social media messages from ‘Renaldo’ received on a mobile telephone.
Before us, the applicant argued that evidence of the Renaldo-Sienna screenshot was only relevant if the provenance of the messages could be established, that is, if it could be proved by the prosecution that the applicant had sent the messages to Sienna under the pseudonym ‘Jason Renaldo’. The applicant submitted that Sienna had not been a witness in the trial and no proof had been adduced as to the original transmission of the messages to her. The applicant argued that there were further forensic examinations that the prosecution could have and should have undertaken to prove ‘in the conventional ways’ that the messages emanated from the applicant. These included ‘server logs’, a time and date stamp of when the message was sent and further detail about IP addresses. Thus, the applicant argued, authorship of the messages could not be established and the messages were inadmissible.
As we have shown, this is an argument that was effectively raised but abandoned before Judge Higham. There is no reason why it should be permitted to be raised now in this Court. Further, the judge could hardly be said to have been in error for not accepting an argument that had been abandoned.
In any event, the argument is misconceived. There was ample evidence from which it was reasonably open to make the finding that the Renaldo-Sienna screenshot were messages from the applicant. It is not to the point to submit that other evidence could also have been provided in support of proof. The absence of such other evidence does not lead to the result that the existing evidence was incapable of establishing the provenance of the messages. Whether ‘conventional’ or not, the additional evidence that the applicant suggested was not necessary evidence.
The fact that Sienna was not called as a witness was of no consequence. She displayed the message that had appeared on her phone to Mia (who was a witness) and it was Mia who captured that image as a photograph. Mia’s image was in turn photographed by Constable Bangle (who was also a witness). The transmission of the original image on Sienna’s phone into the form it took in evidence was proven. Questions as to the effect of any editing of the image as captured on Mia’s phone[10] were able to be put to Mia.
[10]Principally, the addition of a band of text beneath the messages saying ‘My friend and I woke up to this and idk man’.
No error is shown so far as the relevance of the Renaldo-Sienna screenshot is concerned.
Hearsay
No real argument was specifically advanced before Judge Higham that the Renaldo-Sienna screenshot constituted inadmissible hearsay. At most, a question was asked by counsel, almost rhetorically, but not pursued. As in the Court below, applicant’s counsel in this Court, having raised the issue of hearsay in the proposed ground of appeal and in written submissions, did not pursue the submission orally. When asked if the hearsay argument was abandoned, counsel said that it was inter-related with the ‘provenance point’, wished to leave the matter ‘in abeyance for the moment’, yet never returned to it. We take it to have been abandoned. Nevertheless, we shall deal with it briefly.
In written submissions, the applicant argued that the evidence of the Renaldo-Sienna screenshot was at least third-hand hearsay, it being a representation of a person (allegedly, the applicant) to another (Sienna) which was then relayed to another (Mia) and to another (Constable Bangle). The applicant submitted that the initial creation of a reproduction of the messages, by taking the screenshot and editing it, arguably made it fourth hand hearsay. But, at least in part, this argument confuses the process of reproduction of a physical piece of evidence with a hearsay assertion. As we have already explained, the reproduction of the image of the message appearing on Sienna’s phone for admission into evidence was effected by a chain of photographs taken by two people, each of whom gave evidence about doing so. There was no hearsay element to that evidence.
According to the applicant, the hearsay nature of the messages at least lay in the implied representation from Sienna that the messages had been received by her from ‘Renaldo’. However, this argument cannot be sustained. All that Sienna could have said was that she had received on her phone what appeared to be messages displayed in that form. The real question was whether the image appearing on Sienna’s telephone, displayed to and photographed by Mia, was of social media messages sent by the applicant under the guise of ‘Renaldo’. Sienna could not say anything authoritatively on that subject. Proof that the image displayed on Sienna’s phone was a message from ‘Renaldo’ or, in fact the applicant, was not dependent upon any implied assertion to that effect from Sienna, nor did the prosecution rely upon any such assertion. As already discussed, there was ample evidence independent of any such assertion from Sienna from which the jury was able to draw that inference.
The applicant was right not to pursue the hearsay ground. There was nothing in it.
Section 137 objection
The final reason relied upon by the applicant for arguing that Judge Higham erred in admitting the Renaldo-Sienna screenshot was that its probative value was outweighed by the danger of unfair prejudice and thus should have been excluded pursuant to s 137 of the Evidence Act.
First, we agree with the judge that the evidence had substantial probative value. We have already addressed this point briefly above at paragraph [50]. By way of further elaboration, against the background narrative of their online communications with the applicant as described by the complainants, the Renaldo-Sienna screenshot, together with the Renaldo-Amber messages, afforded proof that:
(k) the messages authored by ‘Renaldo’ were sent by the applicant;
(l) the applicant employed manipulation in his dealings with the complainants;
(m) the applicant received, and had solicited, sexualised images from the complainants; and
(n) the applicant participated in sexualised or indecent communications with the complainants.
Given, also, that the credibility of the complainants was in issue due to the applicant’s denial of their claims about what he had requested them to do, the Renaldo-Sienna screenshot, if accepted, substantially supported their accounts. As submitted by the respondent, the evidence of the Renaldo-Sienna screenshot and the Renaldo-Amber messages independently demonstrated the progression of the applicant’s dealings with Mia and Amber from sexual exploitation, through to manipulation and intimidation, and ultimately explained what led the girls to put aside their personal embarrassment about what had occurred and go to the police.
Apart from submitting that the Renaldo-Sienna screenshot had limited probative value, the applicant contended that the danger of unfair prejudice arose because the Canadian police had failed to examine the phones of Mia and Sienna, and because Sienna was not called as a witness at the trial. Whereas Judge Higham considered that the danger of the jury misusing the evidence, such as by giving it undue weight, could be satisfactorily ameliorated by appropriate directions, the applicant contended that the judge failed to ’take into account the broader inherent unfairness when its original maker, Sienna, was not a witness in the trial’.
From this it may be seen that the applicant’s unfair prejudice argument harkens back to what he contended was the inherent weakness in the evidence of authorship of the messages in the Renaldo-Sienna screenshot and the supposed centrality of Sienna to establishing that authorship. We have already addressed this argument in its alternative guises as objections to relevance and hearsay. It lacks merit for the reasons we have already given.
Otherwise, to the extent that the risk of unfair prejudice arose, it was correctly identified. In our opinion, the judge appropriately weighed both the probative value of the evidence and any danger of unfair prejudice attendant upon its use, made a sound judgment in evaluating the two factors and, having done so, made no error in refusing to exclude the evidence.
Proposed ground 2
Proposed ground 2 challenged the correctness of the admission of tendency evidence in proof of two facts: first, that the applicant was the author of the first page of the Renaldo-Amber messages (the subject of charge 5); and, secondly, that the applicant believed that ‘Hannah’ was under the age of 16 years (relevant to charges 6 and 7).
The amended tendency notice filed by the prosecution pursuant to s 97(1)(a) of the Evidence Act set out, as required, the facts in issue towards which the evidence was directed and the particulars of the tendency alleged by the prosecution. The particulars of the tendency were:
(a)The accused communicated online with people whom he believed were or might be teenage girls and aged under 16 (’the recipients’).
(b)The accused used Snapchat for nearly all of these communications, and he had a distinctive style of communicating.
(c)The accused attempted to persuade the recipients to transmit to him images, videos or live footage that was indecent or pornographic in that it would depict the recipients in one or more of the following circumstances ‐
(i) partially or fully naked,
(ii) showering,
(iii) washing themselves, or
(iv)engaged in a sexually suggestive activity such as sucking on an object.
(d)The accused attempted to persuade the recipients to participate in video calls in which he [sic] they could see him masturbating whilst the events of the kind referred to in paragraph (c) were occurring.
(e) The means of persuasion used by the accused included the following –
(i)telling the recipients that he was romantically interested or sexually attracted to them, and
(ii)telling the recipients that they would gain his trust if they complied.
(f)The accused later threatened the recipients who provided these images and videos that he was going to disseminate the material.
Relevantly, for this proposed ground, the notice indicated that the evidence of tendency was to be led in proof of the following facts in issue:
(o) whether the applicant was the correspondent who engaged in the conduct comprising charges 1 to 5 (charge 5 being relevant here); and
(p) the applicant’s knowledge and belief as to the age of the persons with whom he communicated comprising the charges (in particular, for the present purpose, ‘Hannah’).
In addition to the requirement of giving notice, for tendency evidence to be admissible the court must also be satisfied that the evidence will, either by itself or having regard to other evidence, have significant probative value.[11] If the prosecution seeks to lead tendency evidence about an accused, the probative value of the evidence must substantially outweigh any prejudicial effect upon the accused.[12]
[11]Section 97(1)(b) of the Evidence Act.
[12]Section 101(2) of the Evidence Act.
Judge Higham ruled on the applicant’s objection to the use of tendency evidence on 15 October 2020.[13] In his ruling, his Honour stated that he was satisfied that the probative value of the tendency substantially outweighed any prejudicial effect it may have on the applicant.[14] After setting out the facts, relevant legal principles and the submissions for both parties, the judge first addressed the probative value of the tendency evidence in proof of the facts in issue. In respect of the applicant’s belief as to ‘Hannah’s’ age, his Honour said –
I accept there is sufficient evidence within the ’Hannah’ chat logs to support the inference that from 15 July onwards Christopher Boucher believed that Hannah is the age she maintains: that she was a child. The evidence on charge 1–5 as a matter of logic and common experience has the capacity to make more probable to a significant degree the defendant’s belief that Hannah was under the age of 16 and therefore has significant probative value in proof of charges 6–8. The probative force of the tendency is that it may assist in overcoming any hesitation the jury may have as to his belief in ’Hannah’s’ age and their assessment of the defence argument that Mr Boucher. [sic] was just stringing Hannah along and that he knew she was an adult all the while.[15]
[13]DPP v Boucher.
[14]Ibid [66].
[15]Ibid [59].
Dealing next with the use of the tendency evidence to prove that the applicant had engaged in the conduct the subject of charges 1 to 5, the judge said –
Further, the evidence of the Hannah communication, in which requests were made for shower pictures and the use of trust as a means to obtain intimate images, as a matter of logic and common experience makes more probable to a significant degree that the sexualised requests, conversations, and sending of files occurred as alleged in charges 1–5. The probative force of the evidence derives from the assistance it provides to the two questions of (i) whether there was the sexualised conversations and exchanges with [Amber] and [Mia] occurred and (ii) his belief in their age. …
This evidence will of course be considered along with the evidence of the Boucher/ Renaldo communications to [Sienna]; the contents of the Snapchat voice call; the messages from ’Jason’ to [Amber] as well as the particular communication style of the defendant of repeating the last letter of words used.
I am satisfied that the evidence to be led in proof of each of the charges supports the tendency contended for. I am further satisfied that the tendency makes more likely, to a significant extent, the elements of each charged offence. Indeed the manner of employment of trust and trust games to secure images almost bears a hallmark of a modus operandi. The evidence will, either by itself or with other evidence to be adduced have significant probative value.[16]
[16]Ibid [60]-[62].
In considering the prejudicial effect of the evidence, the judge acknowledged that there is an inherent prejudice to an accused by the admission of tendency evidence. Nevertheless, his Honour considered that proper directions to the jury would satisfactorily address any such prejudice.
Authorship of the Renaldo-Amber messages
We turn first to the use of the tendency evidence in aid of proving that the applicant sent the Renaldo-Amber messages.
One of the aspects of the applicant’s tendency as notified by the prosecution was the applicant’s use of Snapchat and his ‘distinctive style of communicating’. During submissions before Judge Higham, the prosecutor referred to the applicant’s repetition of consonants at the end of words as a feature of his distinctive style of communication. The judge himself also drew attention to the use of emojis although acknowledged that, alone, that use was not ‘so identifying’.
In the final address, the prosecutor listed a number of features which, in combination, were said to characterise the applicant’s particular style of communicating as gleaned from his (admitted) communications with ‘Hannah’. Those features included the repetition of final consonants, accompanying emojis, the request for secrecy, and the use of the words ‘cause’ (for ‘because’) and ‘leak’ as a reference to releasing material on the internet. Those features were then compared with the features of language used in the Renaldo-Amber messages in order to suggest that the author of each set was the same person.
The applicant complained that the specific features or elements of the alleged distinctive style of communicating, as put to the jury:
(q) were not all particularised in the tendency notice;
(r) were an enlargement of the set of features discussed in submissions before Judge Higham; and
(s) in any event, were too commonplace to be capable of proving the identity of the author.
For this reason, the applicant contended that Judge Higham had erred in admitting the tendency evidence.
We disagree. The complaint about inadequate notification should be rejected. The prosecutor squarely identified the tendency as comprising a distinctive style of communicating, and a number of the features of that style were identified in submissions. As the respondent submitted before this Court, the identification of still more elements of that distinctive linguistic style could only strengthen the basis for admissibility. Doing so did not depart from or alter the nature of the notified tendency or the way in which that tendency was to be used by the prosecution. Further, there was no loss of opportunity to attack or address the evidence which any more extensive particulars could otherwise have provided. Counsel for the applicant had the opportunity to address the evidence in closing, and did so.
If, contrary to our view, there was any deficiency in the particulars given in the tendency notice, in the circumstances of this case such a deficiency would constitute an irregularity that was so minor that it could not have made a difference to the outcome of the trial.[17]
[17]See Baini v The Queen (2012) 246 CLR 469, 479 [26] and 482 [35] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.
Finally, the nature and degree of similarity required for evidence of a tendency to have significant probative value will depend upon the facts in issue.[18] Here, where the issue in dispute was the identity of the person who sent the relevant Snapchat messages, there was significant probative value in the specific similarities between the messages sent by the applicant to ‘Hannah’ and the Renaldo-Amber messages. Despite some of the features, viewed in isolation, being relatively commonplace (such as the use of emojis and the word ‘cause’), it was the peculiar combination of them that produced the distinctive characteristic. Along with other features that were evident in both the messages to ‘Hannah’ and the Renaldo messages — such as the use of manipulation and the requests to prove trust — the combination of linguistic features as identified were sufficiently distinctive to be significantly probative of authorship.
[18]Hughes v The Queen (2017) 263 CLR 338, 355 [37] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
In conclusion, we reject the applicant’s submission that there was any error on the part of Judge Higham in permitting the admission of the tendency evidence for the first purpose complained about.
Belief about ‘Hannah’s’ age
The next submission relevant to proposed ground 2 was that a substantial miscarriage of justice occurred by reason of the admission of tendency evidence to prove that the applicant believed that ‘Hannah’ was under 16 years of age.
It is to be recalled that ‘Hannah’ informed the applicant from an early stage in their communications that she was ‘14 … almost 15’. Toward the end of their exchanges, ‘Hannah’ claimed that she had turned 15. The applicant expressed suspicion about the truth of ‘Hannah’s’ age throughout their communications. As mentioned previously, the prosecution case was that from about 15 July 2019 onwards the applicant’s professed suspicion was just a pretence, used as a ruse to encourage ‘Hannah’ to send the applicant sexual images of herself in order to prove that she was real or to earn his trust.
The issues in relation to charge 5 concerning Amber were whether the applicant had participated in sexualised communications and made requests for and received sexual images from her, and whether he believed she was under 16. The issue in relation to charges 6 and 7 concerning ‘Hannah’ was more confined. In the case of ‘Hannah’ there was no dispute that the applicant had sought sexual images from and had participated in sexualised exchanges with her. Despite ‘Hannah’ claiming to be 14 or 15, the sole question in her case was whether the applicant believed that to be so.
In addition to ruling that the tendency evidence was admissible, Judge Higham had dismissed an application to sever charges 1 to 5 from charges 6 to 8 on the indictment and declined to rule that the evidence on the former charges were not cross-admissible on the latter charges. The severance/cross admissibility argument and the argument concerning the admissibility of the tendency evidence were interrelated. After the judge refused to certify pursuant to s 295(3) of the Criminal Procedure Act, this Court in Cano (a pseudonym) v The Queen (‘Cano’)[19] refused an application for review of that refusal to certify.[20] In doing so, the Court commented upon the probative value of the tendency evidence in proof of the applicant’s belief concerning the ages of the various complainants. The Court held:
In our view, the fact that an accused can be shown to have had a particular state of mind, amounting to a tendency, towards taking a sexual interest in girls under 16, and in acting upon that sexual interest, must, logically, enhance the strength of the prosecution case as regards the applicant’s belief that Hannah was under 16. That tendency undercuts his defence that he was simply ‘testing’ Hannah out by way of banter. In the same way, the applicant’s belief that Hannah was under 16, if that is established, must logically strengthen the prosecution case that [Amber] and [Mia] did, as they assert, tell the applicant that they were only aged 14 and 13 respectively. Any other result seems, to us, to defy common sense.[21]
[19][2020] VSCA 308.
[20]Cano (a pseudonym) v The Queen [2020] VSCA 308 (‘Cano’).
[21]Ibid [73].
It should be emphasised that the Court was not dealing directly with an application for leave to appeal the judge’s ruling on the admissibility of tendency evidence. Therefore, although highly pertinent, the Court’s comments in Cano did not determine the merits of the applicant’s proposed ground here.
Before us, the applicant contended that Judge Higham erred in allowing evidence of the tendency, as derived from the applicant’s conduct towards Amber and Mia, to be admissible in proof of his belief about the age of ‘Hannah’. Most prominently, the applicant relied upon the reasoning in Larsen (a pseudonym) v Director of Public Prosecutions (Cth) (‘Larsen’)[22] in which this Court overruled the admission of tendency evidence to prove an accused’s belief that a person was under 16. The applicant submitted that the present case was ‘on all fours’ with Larsen.
[22][2020] VSCA 335 (Maxwell P, T Forrest JA and Macaulay AJA).
In Larsen, the circumstances were that the accused faced charges of using a carriage service to procure a person under 16 for sexual activity and other related charges. It was accepted by the accused that the child in question was under 16 but he denied that he knew that to be so. In respect of some of the charges the accused had to prove, by way of defence, that he believed the child was 16 or over. In respect of another charge, the prosecution had to prove that the accused knew, or was reckless as to whether, the child was under 18. Significantly, there was no evidence that the child had told the accused how old she was. Apart from the contested tendency evidence, the other evidence as to the accused’s belief about the child’s age consisted of inferences that could be drawn from the appearance of the child in photographs that had been exchanged, and from the nature of their written exchanges.
In those circumstances, the prosecution sought to lead evidence that the accused had pleaded guilty in a Queensland court to charges of using a carriage service to procure, and transmit indecent communications to, a person under 16. Those charges related to communications with only one person. The accused had commenced his communications with the person in question not knowing her age. When she later informed him that she was 15, he continued exchanging sexualised messages with her and thereby offended.
In Larsen, the Court considered the nature of the reasoning which, at the highest and in the circumstances of that case, the so-called tendency evidence would permit. It was distilled as follows (with L being the accused and T being the child):
• L is sexually attracted, non-exclusively, to young women;
•he is willing to act on that attraction even if he learns that the target of his intended communication is under 16;
•accordingly, if L thought there was a possibility that T was under 16 (because of the other evidence informing his perception of her age), it is more likely that he would have communicated in the way he did notwithstanding that possibility.[23]
[23]Larsen [28].
The Court found that such evidence had very little probative value in relation to the accused’s belief about the child’s age, saying:
In our view, this is the highest the probative value of the Queensland evidence could be put. Plainly enough, that evidence shows that L was, on a prior occasion, prepared to proceed with sexualised communications despite knowing that B was 15. It does not establish either that he proceeded with the communications only because he believed she was 15 or that he would not have communicated in the same manner had she told him she was 16. The improbability of the latter proposition is readily apparent.
On this view, the Queensland evidence has very limited probative value in relation to the issue of what L knew or believed about T’s age. It would not, in our opinion, approach the threshold requirement of ‘significant probative value’ in s 97(1)(b).[24]
[24]Larsen [29]–[30].
We do not consider that the current case is at all comparable with Larsen. The differences are quite stark.
Here, the applicant was told by ‘Hannah’ what her age was at the very outset, and the issue was whether his protestations of disbelief were real or only pretended. Unlike Larsen, where the tendency evidence was to be used to overcome an absence of any express information given to the accused to positively establish a belief about age, here the tendency evidence was to be used to negate a professed disbelief in the context of the target having told the applicant that she was under 16.
Additionally, here, the evidence was not confined to establishing a tendency to act upon an interest in girls under 16, but extended to the practice of using ‘tests’ to earn trust. That type of past behaviour, as the Court observed in Cano, had the capacity to undercut the applicant’s defence that he was simply testing ‘Hannah’ by way of banter as opposed to using his pretended disbelief to procure the indecent material that he wanted. In other words, the tendency evidence was not only (or even mostly) relevant to establishing an affirmative belief in age but, rather, was put forward as a plausible, alternative explanation for what masqueraded as a genuine disbelief about age.
We consider that Judge Higham was correct in assessing this evidence as having significant probative value.
On the question of the danger of unfair prejudice, the applicant referred to the risk that the evidence of the applicant’s behaviour towards Mia and Amber, the subject of charges 1 to 5, would incite ‘outrage and denunciation’ on the part of the jury and cloud their forensic reasoning in respect of the limited issue in dispute, namely, the applicant’s belief in ‘Hannah’s’ age. It seems to us that this is an argument more directed to the failed argument on the severance of the charges and cross-admissibility of evidence. In any event, at trial Judge Wraight gave the jury a clear direction about how the tendency evidence may be used — substantially replicating the paragraph from Cano extracted above — but also directed the jury how the evidence should not be used.
The trial judge directed the jury that they must keep that evidence in perspective. He emphasised the limited purpose for showing a tendency to have a particular state of mind and to act in a particular way and warned the jury not to use it for any other purpose. He directed the jury that they could not convict the applicant simply because they found he had the tendency as described, but they could only find the applicant guilty of the charge if satisfied of his guilt beyond reasonable doubt based on all of the evidence. In that context, his Honour reminded the jury that they must not decide the case based upon feelings of sympathy or prejudice. These were standard directions and in our view were apt to avoid the danger of misuse of the evidence or the production of any unfair prejudice.
Again, we find no error in the Judge Higham’s ruling to admit this evidence and no substantial miscarriage of justice could have eventuated from its use.
Proposed ground 3
The final proposed ground of appeal against conviction centred on some remarks made by the prosecutor in his closing address and the refusal of the trial judge to discharge the jury because of those remarks.
Before coming to the remarks, it is relevant, first, to refer to some of the applicant’s answers given to police in his record of interview. The applicant told police he had lived with his mother, father and sister his whole life and had never lived anywhere else for any extended period of time. He said he was not currently working, but was on a disability pension for narcolepsy, dysthymia and attention deficit hyperactivity disorder (‘ADHD’). When asked to tell police about Amber, he said:
… during that period of time I was very depressed and not with it. I hadn’t been getting any sleep. … I was just being silly and ridiculous to waste time because I was feeling so depressed.
Later he continued:
I was just selfishly distracting myself. I was – hadn’t slept in – in a long time. And I was so depressed and I just needed something to occupy my time and I was being stupid.
He also referred to being ‘absent minded and depressed and not sleeping and trying to, like, occupy my mind’ and ‘I was in a very – very bad place’. When asked whether there was a thrill in chatting with the complainants, he said ‘it wasn’t a thrill so much as boredom’. There were numerous other similar statements. Often they were put forward as a means of explaining why he could not remember things occurring and other times to characterise his conduct as merely distracted, silly behaviour devoid of any discreditable intent or meaning.
In his address to the jury, the prosecutor commenced by painting the following picture of the applicant –
That picture is that when these events begin back in around early 2019, Christopher Boucher was very unhappy about his life.
When he was interviewed later by police, and you’ve just heard the interview, he revealed that he was very depressed. He was unemployed. He was not studying at the beginning of 2019. I think he said he began an online bridging course in around April. That is, after he finished communicating with the two Canadian girls. He was still living at home, notwithstanding that he was 25. He had been on a disability pension for mental health related problems, for a number of years. He stopped going to the gym due to his health problems.
And although he claimed to have a girlfriend, she was in America. He repeatedly said he was bored. And you might think he was also lonely. Then in that interview he claims to have forgotten most of his communication with [Mia] and [Amber], and as I’ll elaborate on later, I suggest that that was really a strategy on his part for avoiding hard questions about what really happened during this period. But, the information that he does provide about what was going on his life unintentionally helps to explain how he came to commit these offences.
During this period, this is in early and mid-2019, Snapchat and the internet offered Christopher Boucher an escape from his unhappy reality. It was a place where he could pretend to be someone else. It was a place where he could make himself feel better about himself, by taking advantage of the vulnerability of teenagers that he met online. And these circumstances led him to [Mia] and [Amber].[25]
[25]Transcript 15 December 2020, pages 381-382.
Following those remarks, counsel for the applicant at trial submitted that the trial judge ought to discharge the jury because those comments were inflammatory, and impermissibly raised the applicant’s character and post-offence incriminating conduct. Further, counsel submitted that it was the sort of comment that required expert evidence to support the implication that a depressed person suffering ADHD would more likely be the type of person who would commit an offence of this kind.
In discussion, the trial judge referred to the fact that the comments emerged from the applicant’s own description of himself by way of explanation for his conduct. In like manner, the prosecutor argued that the applicant himself had referred to his mental health at the time to explain his innocent state of mind and the innocence of his conduct and ‘his supposed oblivion to the age of the three girls and the impact that his behaviour was having’. The prosecutor submitted that his reference to the applicant’s state of mind was made in anticipation of the defence the applicant was putting forward. That is, it was a means of attacking the credibility of the applicant’s explanations and giving the jury a basis for rejecting, or not entertaining the possibility, that the applicant had simply forgotten events. He contended that his remarks were simply a comment or a submission. Insofar as there was any risk the jury might misuse the evidence as evidence of incriminating conduct, the prosecutor was content for the trial judge to give a direction under s 23 of the Jury Directions Act 2015 (Vic) (‘Jury Directions Act’) to direct that the jury must not conclude from that evidence that the applicant was guilty of the offence charged.
The trial judge ultimately ruled that there was no ‘high degree of need’ to discharge the jury,[26] stated that he was prepared to give a direction under s 23 of the Jury Directions Act and refused to discharge the jury.
[26]R v Boland [1974] VR 849, 866 (Adam, Little and McInerney JJ).
In this Court, the applicant contended in written submissions that the prosecutor’s remarks amounted to a ‘medicalised explanation for the alleged offending’, unsupported by expert evidence, that the applicant’s state of mind would make it more likely that he would engage in the conduct alleged.
There is nothing in these submissions. It borders on the fanciful to submit that the jury would understand the prosecutor’s remarks as being a proxy for some expert psychological opinion to the effect that a person with this mental profile is more likely to commit the offences with which the applicant was charged. Rather, the jury would have understood that it was the ground work for a submission from the prosecutor, based upon the applicant’s own description of his mental state, that the jury should not accept the applicant’s claims of being unable to recall many of the exchanges or the innocent complexion he placed upon them.
In oral submissions before us, the applicant veered away from pressing the ‘unsupported medical evidence’ line of argument, and contended, instead, that the prosecutor had sought to ‘exploit or perhaps to leverage the stigma that’s attached to mental illness’. That was a particularly unattractive and unappealing submission and we reject it.
There was no error in the trial judge refusing to discharge the jury on the basis of those remarks having been made and, accordingly, there could be no substantial miscarriage of justice because of that refusal.
Conclusion
For the reasons stated, we refuse leave to appeal the conviction on any of the applicant’s three proposed grounds.
Proposed appeal against sentence
The full details of the sentence imposed on the applicant are set out at the commencement of these reasons. Without knowing more about any mitigatory factors applicable to the applicant, one is immediately struck by the apparent leniency of the total effective sentence. For a person convicted of five charges of engaging in online sexual communications over a number of months involving two persons under (or apparently under) 16 of which several of the charges carry maximum terms of imprisonment of 15 years, a total effective sentence of three years’ imprisonment with only six months to be served suggests that a very substantial allowance must have been made for mitigatory factors.
Indeed, at first blush, one cannot but help think that, on this application, s 280 of the Criminal Procedure Act may be relevant. That section provides that this Court may refuse an application for leave to appeal the sentence imposed in relation to any ground of appeal if there is no real prospect that the Court would reduce the total effective sentence despite there being an error in the sentence first imposed.
The applicant proposed four grounds of appeal against sentence, that is:
1 The judge erred in finding that the applicant’s physical health issues did not establish ‘a serious risk of imprisonment having a grave effect’ on the applicant’s health;
2 The judge erred in the application of the Verdins principles[27] to the applicant’s mental health as a matter of mitigation in the following ways:
[27]See R v Verdins (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’); [2007] VSCA 102.
(a) by rejecting the relevance of the applicant’s mental health conditions as a matter reducing moral culpability on the basis that the evidence did not disclose the ‘requisite causal link’ (Verdins limb 1);
(b) by rejecting the relevance of the applicant’s mental health as a matter reducing the need for general deterrence (Verdins limb 3); and
(c) by rejecting the relevance of the impact of custody on the applicant’s mental health (Verdins limb 6).
3 The judge erred in his assessment of the objective seriousness of charges 6 and 7 by describing them as ‘not dissimilar’ to charges 3, 4 and 5, in that he failed to acknowledge significant differences between the offences concerning [the undercover police operative] (6 and 7) and the child complainant (charges 3, 4 and 5); and
4 The sentencing judge erred in the application of the principle of totality by structuring the sentences with the effect of cumulating 12 months of the sentence on charges 6 and 7 on the ‘base sentence’ on charges 3-5.
Proposed ground 1
In sentencing the applicant, the judge recorded in considerable detail a number of physical health issues which the applicant suffered before, during and after his offending, as follows:
Turning to your physical health issues, in 2014 and 2017 you were admitted to hospital due to symptoms arising from the ingestion of gym supplements. Around the time of this offending in early 2019 you developed symptoms such as delirium and high temperature and in May 2019, you were placed in a coma for a number of days as a result of thyrotoxicosis, potentially connected to a viral infection. You spent a number of weeks in the Intensive Care Unit for treatment and required plasma replacement therapy.
In September 2020 prior to the trial, you began experiencing kidney related symptoms such as swelling of the legs, high blood pressure and impairment of kidney function. You were admitted to hospital and you were ultimately diagnosed with glomerulonephritis, an inflammatory kidney condition which has been ongoing requiring multiple admissions to hospital. You have also experienced cardiac issues for which you have received treatment.
A report authored by Associate Professor Andrew Gall, Forensic Physician, was tendered on the plea. Dr Gall assessed your prior medical history and examined you on 4 May 2021. He confirmed that you currently suffer from ADHD, renal failure, dilated left ventricle and impaired cardiac function with mild to moderate coronary artery disease, and probable depression and anxiety. Dr Gall is of the opinion that your renal failure is unlikely to improve with time and, depending on the availability of a successful renal transplant, you will need regular haemodialysis. Dr Gall is also of the view that you would find custody more onerous due to your renal condition that requires constant and regular monitoring and management.
Two reports were also prepared by Associate Professor Nigel Toussaint from the Royal Melbourne Hospital Department of Nephrology, dated 5 March 2021 and 31 May 2021. Dr Toussaint confirms that you are not currently active on the kidney transplant waiting list but being considered as to your suitability. If you do become active on that waiting list, you may still be on dialysis for many years before a kidney becomes available.
Since the assessment of Dr Gall, you have continued on haemodialysis three times per week at an external facility. You will in the future undertake training in order for you to undertake haemodialysis at home once you are stabilised.
Dr Gall gave evidence on the plea and had reviewed recent hospital admission notes since the writing of his report. He was of the view that your health has declined significantly from April to July this year and that in relation to your ongoing cardiac condition, identified as cardiomyopathy, you may require a heart transplant in the future. He was ultimately of the view that prison would be more onerous than for a person not suffering from your physical ailments. On this issue the prosecution accepts that your present health and prognosis carries significant weight.[28]
[28]Reasons [57]-[62].
When considering the relevance of those physical health conditions to the task of sentencing the applicant, the judge identified the applicable legal principles and made findings about how those principles operated in the applicant’s situation. He said (emphasis added):
The principles in relation to ill health are well established. Physical health or disability may be relevant in two ways. First, where imprisonment will be a greater burden because of the offender's health, and secondly, where there is a serious risk of imprisonment having a grave effect on the offender’s health.
I received an affidavit sworn by Scott Swanwick, Director, Health Service and Clinical Governance, Department of Justice and Community Safety. Mr Swanwick gave evidence on the plea confirming the contents of his affidavit. Mr Swanwick states that there are currently a number of prisoners in Victoria with complex and chronic health conditions, which are able to be managed and treated. In your case, Mr Swanwick gave evidence that you would be able to attend dialysis sessions whilst in custody, including in quarantine. He also stated that there are instances of prisoners continuing dialysis off site, including at the Royal Melbourne Hospital, where you have been treated recently. He said that if you required daily dialysis off site then this would be accommodated.
I accept that your health issues will require significant management if you were in custody including as noted, possibly arranging dialysis a number of times per week off site. Further, it is self-evident that the arranging of appointments and treatment in the community are easier to maintain than within the prison environment where you will be entirely dependent on others.
Ms Blair submitted that the evidence of Dr Gall was to the effect that major medical conditions are not always optimally managed in custody and as such imprisonment could have a grave effect on your health.
In all the circumstances, in my view I am satisfied that imprisonment will be a greater burden upon you because of your current state of health. As to whether the evidence establishes that there is ‘a serious risk of imprisonment having a grave effect’ on your health, the evidence is not clear. Dr Gall is of the view that failure of the prison system to promptly respond to potential complications related to your conditions may significantly adversely affect your health. Therefore while you are vulnerable because of your conditions, the evidence is that any serious risk is based upon the failure of the prison system to respond to an event, rather than a serious risk of prison itself having a grave effect on your health.[29]
[29]Ibid [76]–[80] (emphasis added).
Finally, in acknowledging the impact of the COVID-19 virus on the prison environment, the judge added that:
… in your case if you were required to be quarantined, your medical treatments, while able to be undertaken, would be an added difficulty in that circumstance. I take these matters into account.[30]
[30]Ibid [84].
It is clear from the formulation of the first proposed ground of appeal, and from the way in which the argument was put on the application, that the applicant proposes to challenge the judge’s finding of fact concerning the extent of the risk that imprisonment would adversely impact the applicant’s physical health and the gravity of that impact should the risk eventuate. More particularly, the applicant focused upon what he contended was an ‘unorthodox and illusory’ distinction made by the judge in relation to the second of the two ways in which ill health may be relevant to sentencing. As seen in the final sentence of the passage at [118] above, the judge drew a distinction between, (1) the risk that a failure by the prison system to respond to an event (such as a complication requiring urgent medical treatment) would have a grave effect on the prisoner’s health, and (2) the risk that imprisonment itself would have that effect.
The applicant went to some lengths to show that Dr Gall had emphasised the need for the applicant to access appropriate specialist care and the danger the applicant would face if the prison system failed to promptly respond to the potential complications of dialysis. Such failures, Dr Gall said, could even be fatal. Married to this, although noting that Mr Swanwick stated that the health service within the Victorian Corrections system is based upon the principle of ‘community equivalence’, the applicant highlighted that Mr Swanwick had been unable to say, precisely, how prompt transport to hospital could be guaranteed in the event of a complication, had conceded that he could not speak about the applicant’s specific medical conditions, and further had conceded that he was not ‘on the ground’ in the prison providing medical care.
The applicant submitted that the potential for there being delays in getting him to hospital in the event of complications or other events was a matter ‘associated with’ his imprisonment. That matter, he argued, raised a substantial risk of deterioration in his health condition. By reference to R v Smith (‘Smith’)[31] and R v Eliasen (‘Eliasen’),[32] the applicant argued that the relevant enquiry was whether there was a risk to health from matters ‘associated with’ imprisonment. Being a matter associated with imprisonment, the risk of an adverse health consequence from the prison’s failure to respond to an event entitled him, so he put it, to the full benefit of the second of the two ways in which ill health is relevant to sentencing.
[31](1987) 44 SASR 587 (King CJ with whom Cox and O’Loughlin JJ agreed).
[32](1991) 53 A Crim R 391 (Crockett J with whom McGarvie and Phillips JJ agreed) .
The ways in which physical health or disability may be relevant to sentencing were authoritatively stated by the Court of Criminal Appeal in Victoria in Eliasen, adopting what was said by the Court of Criminal Appeal in South Australia in Smith. The statement from Smith in its full context is as follows –
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can the offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.[33]
[33]Smith 589.
The statements made in Smith were also adopted by the Court of Criminal Appeal (NSW) in R vBailey.[34] In Eliasen, the Court referred to Bailey, in particular to a statement appearing in the headnote to the report which read:
The provision of proper medical attention is the responsibility of the prison authorities and the Court of Criminal Appeal will not interfere in that regard.
Justice Crockett (McGarvie and Phillips JJ agreeing) approved that statement as representing ‘what long has been accepted as correct by this Court’.[35]
[34](1988) 35 A Crim R 458 (Lee J with whom Maxwell and Yeldham JJ agreed).
[35]Eliasen 396 referring to Bailey 458.
For the source of the principle that the relevant enquiry is whether there is a risk to health from matters ‘associated with’ imprisonment, the applicant relied upon a statement by King CJ in Smith. In that case, the appellant-prisoner suffered from acquired immunodeficiency syndrome (AIDS). There was cogent evidence that stress was a factor which could cause the deterioration of the condition toward a more serious stage of the illness, and that imprisonment itself was a source of stress to the appellant. Based on that evidence, his Honour said that there was:
… a substantial risk that the stress associated with a further period of imprisonment will cause some deterioration in the condition which afflicts [the appellant].[36]
[36]Smith 589.
Thus, the reference to the risk that the stress ‘associated with’ further imprisonment would cause deterioration in the condition was clearly a reference to the impact of imprisonment itself.
Understood correctly, the statement in Smith does not support the broader expression of the principle for which the applicant contended. It certainly does not justify extending the operation of the mitigatory principle to the risk of the possible consequences to the prisoner if the prison authorities were not to provide him or her with medical treatment appropriate for their condition.
Importantly, as we have shown, the same cases that the applicant relied upon for his broader formulation of the principle also emphasised the responsibility of prison authorities to provide appropriate health care to prisoners. Undergirding that truth, every prisoner has a statutory right to access reasonable medical care and treatment necessary for the protection of health,[37] and the safe custody and welfare of prisoners is the statutory responsibility of the executive branch of government carried out through the management of prisoners by prison governors.[38] In our view, the applicant’s implied assertion that the Court should assume or accept that he might not receive appropriate treatment in prison, and should therefore discount his sentence accordingly, does not sit well with the distinct responsibilities of a sentencing court, on the one hand, and the Executive, on the other.
[37]Section 47(1)(f) of the Corrections Act 1986 (Vic).
[38]Ibid s 20.
In short, we do not accept that the distinction drawn by the judge was either unorthodox or illusory — instead, it was a correct distinction to draw on the facts of this case. Beyond that, it is evident that the judge still gave weight in mitigation of the sentence to the risk as identified by Dr Gall and to the fact that the applicant’s treatment whilst in prison would be entirely dependent upon others. The judge also gave weight to the burden that imprisonment would impose upon him by reason of his health issues.
We see no error in the way the judge dealt with the applicant’s physical health condition.
Proposed ground 2
The six ways in which impairment of mental functioning may be relevant to sentencing, as enunciated in Verdins, are very well known. Those that are relevant to the present case are:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
…
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
…
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[39]
[39]Verdins [32].
Both at the time of offending and at the time of sentence the applicant suffered from a borderline personality disorder and a major depressive disorder. For the existence of a mental impairment to reduce the moral culpability of the offender for the offending conduct under the first limb of Verdins, or to moderate the influence of general deterrence under the third limb, there must be a ‘realistic connection’ between the impairment and the offending or the impairment must have ‘caused or contributed’ to the offending.[40] If an offender is to rely on a personality disorder in mitigation of penalty, the disorder must be of some severity, involving a clinically significant impairment of mental functioning.[41]
[40]DPP v O’Neill (2015) 47 VR 395, 414-5 [74] (Warren CJ, Redlich and Kaye JJA); [2015] VSCA 325.
[41]Brown v The Queen (2020) 62 VR 491, 509 [68]-[69] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA); [2020] VSCA 212.
In declining to find that the first, third and sixth limbs of Verdins were engaged, as had been the contention for the applicant, the judge held:
While I accept that you were suffering the disorder over the period of the offending, in my view the evidence does not disclose the requisite causal link, that is, it does not establish a clinically significant impairment of mental functioning that was present at the time of the offending. That said, I accept that your disorder is a matter I am able to take into account as part of your personal circumstances in the general sentencing discretion.
In addition to your personality disorder, you also suffer from a major depressive disorder. Mr Nyhan and Mr Candlish are of the view that your psychological conditions will make prison more burdensome for you than for a person not suffering your conditions. Mr Candlish is also of the view that your personality disorder, being an enduring condition, will not necessarily worsen within the prison environment. I accept however that the deterioration of your physical health over the past months will also impact your mental health adding further to the burden of custody. Thus while the evidence does not suggest your condition will worsen in custody I accept that it will make custody more burdensome for you, thus enlivening Verdins principle 5.[42]
[42]Reasons [82]-[83].
Both parties highlighted different aspects of the evidence of a psychologist, Mr Simon Candlish, as to the severity of the applicant’s personality disorder at the time of offending and its causal role in the offending. The applicant highlighted Mr Candlish’s opinion that he, the applicant, suffered a ‘borderline personality disorder (moderate)’ which had endured ‘since adolescence’ and which ‘reduces his capacity for empathy, consequential thinking and impulse control’. The applicant also drew attention to Mr Candlish’s opinion that the applicant ‘was affected by this personality disorder at the time of his offending’, which appeared to be ‘a form of coping, distracting himself from his negative moods and … an attempt to manage his internal instability’. In oral evidence, Mr Candlish explained that the personality disorder played ‘a considerable role’ in the offending.
On the other hand, the respondent referred to Mr Candlish’s oral evidence as to the severity of the disorder, at one point saying it was ‘at least moderate’, then ‘somewhere between moderate and severe’, and ultimately ‘a moderate severity presentation for that particular personality disorder’. The respondent particularly relied upon Mr Candlish’s opinion that the disorder ‘doesn’t appear to move fully into a severe category where you are likely to see a really pronounced impairment and significant issues in relation to mental health …’. The respondent submitted that the applicant’s offending was not spontaneous, fleeting or impulsive, but rather had occurred over time with repeated engagements with the victim and the undercover operative. It involved the use of a fictitious persona and there was some complexity and manipulation involved in his conduct. Thus, argued the respondent, the purposeful nature of the offending was a relevant matter to be considered in determining whether the mental impairment was shown to have caused or contributed to it. Reinforcing that argument, the respondent highlighted Mr Candlish’s agreement to the proposition that, given the prolonged and elaborate nature of the offending, heightened impulsivity did not explain all of the applicant’s behaviour.
Relevant to limb six of Verdins, the respondent drew attention to the opinion of Mr Candlish that because the applicant’s personality disorder is an enduring condition, ‘it will not necessarily worsen within the prison environment’.
Against this background of evidence, we consider that the findings made by the judge were reasonably open to him. Evidence as to the severity of the applicant’s impairment of mental functioning and its causal role in the offending was mixed. Whether an impairment in any given case should or should not invoke the application of the mitigatory principle often turns on a matter of degree, as it did in this instance. The judge identified the correct legal principles and applied them to the facts as he found them. In our view, there was no error made by the judge.
In any event, whilst the judge held that the applicant’s borderline personality disorder did not meet the necessary threshold to enliven limbs one, three and six of Verdins, he nevertheless gave weight to the existence of the condition in mitigating penalty by taking it into account as part of the personal circumstances in the general sentencing discretion. His Honour’s approach recognised the existence of the condition both during the course of offending and at the date of sentence. As noted, the judge also accepted Verdins limb five was operative and gave weight to the fact that the applicant’s personality disorder and major depressive disorder would render imprisonment more burdensome for him than for a prisoner not suffering the condition.
Finally, as alluded to at the commencement of this discussion on sentence, having regard to the objectively serious nature of the offending, number of charges and maximum penalties for each, together with the applicant’s lack of insight into his offending, the sentence of three years’ imprisonment with release after serving only six months is only explicable on the basis that the judge gave full, indeed very generous, weight to all relevant mitigating factors.
Proposed ground 3
In assessing the objective seriousness of the offending against Amber, on the one hand, and against ‘Hannah’, on the other, the judge held:
While the offences relating to the undercover operative are not aggravated by the presence of an actual victim, in my view the nature of the conversations that give rise to the charges is not unlike the conversations you engaged in with Ms Abbott. As such the objective seriousness of the offending is not dissimilar to that relating to Ms Abbott. However, other considerations elevate the seriousness of the offending in relation to Ms Abbott including the harm suffered by her and her personal circumstances which I am required to take into account pursuant to s 16A(2)(d) and (ea) of the Crimes Act 1914 (Cth).
Mr Ginsbourg, who appeared on behalf of the Commonwealth Director of Public Prosecutions, submitted that the offending against Ms Abbott represents serious examples of their type and highlighted matters which he submitted aggravated the offending such as the age difference of 12 years between you and the victim, the frequency of the communications and the fact that Charge 5 involved a threat by you to disseminate the sexual images that resulted from Charges 3 and 4. Ms Blair, who appeared on your behalf, submitted that these are not features of aggravation over and above the circumstances that constitute the offending and should be assessed in determination of the gravity of your offending in the usual way. I accept that submission however, in my view in all the circumstances, your offending in relation to Ms Abbott represents a serious example of this type of online sexual activity with children under the age of 16. The offending in relation to the undercover operative was of a similar nature, however it did not result in actual sexual activity and, for the reasons noted above, it necessarily did not have the effect as if the conduct was committed with an actual victim under the age of 16.[43]
[43]Reasons [43]-[44].
By this proposed ground, the applicant argued that the judge was in error by equating the objective seriousness of the offending involved in charges 6 and 7 with that which was involved in relation to charges 3 to 5. The applicant highlighted the following differences between the two sets of offending:
(t) against ‘Hannah’, the applicant did not actively seek out and perpetuate the online exchanges because ‘Hannah’ initiated and drove them, whereas the applicant was more proactive in doing so with Amber; and
(u) the applicant did not threaten to disseminate sexualised media involving ‘Hannah’, but did so in relation to Amber.
There is little, if anything, in this proposed ground. From the passage extracted above, it is clear that the judge acknowledged significant differences in the offending as well as similarities. The judge, of course, had presided over the applicant’s trial and had a thorough knowledge of the evidence, including the similarities and differences between the two sets of charges.
Further, as submitted by the respondent, the sentences imposed on the individual soliciting charges indicate that the judge took account of the differences between the offending.[44]
[44]Compare the sentence for charge 4 with the sentence for charge 7. See also the differential applied to the sentences for procuring Amber (charge 3) and for grooming ‘Hannah’ (charge 6), noting however, that the maximum penalty for charge 3 was 15 years, whilst for charge 6 it was 12 years.
We reject the contention that the judge made any error in characterising the objective seriousness of the offending in charges 6 and 7.
Proposed ground 4
By the final proposed ground of appeal, the applicant contended that the judge erred in the application of the principle of totality. In particular, the applicant argued that the sentencing judge erred by cumulating 12 months of the sentences on charges 6 and 7 upon the sentence imposed for charges 3, 4 and 5. Whilst acknowledging there were separate victims (or notional victims) justifying some cumulation, the applicant submitted that the offending on all charges was significantly interrelated temporally, consequentially and causally. Despite the interrelated nature of the offending, the applicant’s complaint is that the judge only imposed a slight degree of concurrency (six months) between the incidents and made no explicit reference to the principle of totality or the interrelated nature of the offending.
We reject these contentions. The offending with ‘Hannah’ occurred after a gap of five months after the offending involving Amber. Even if the two sets of offending had occurred at the same time, some measure of cumulation would still have been justified to reflect offending involving two separate and different recipients of the applicant’s communications. The point about the degree of proactivity in initiation or continuance of the communication is of minor, if not negligible significance. The fact that an experienced sentencing judge did not actually use the word ‘totality’ is of no consequence. Finally, the modest degree of cumulation and the total effective sentence imposed reveals the judge’s awareness of the connections and similarities between the offending sets.
This proposed ground is not reasonably arguable.
Conclusion
Having considered all of the applicant’s proposed grounds and arguments, we would now reiterate our remarks made at the commencement of this section. Even if we had considered that the judge had made some specific error in the sentence imposed, there is no reasonable prospect that the Court would reduce the total effective sentence. We say that in light of the seriousness of the offending, the maximum penalties, and the two distinct instances of offending against two different recipients, where there was no available discount for a plea of guilty and the applicant lacked insight into his offending.
Leave to appeal is refused on each of the proposed grounds of appeal against sentence.
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