Boucher v The Queen - [2022] VSCA 3

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boucher v The Queen

Details

AGLC: Boucher v The Queen [2022] VSCA 3
Case: [2022] VSCA 3
Decision Date: 28 January 2022

CaseChat Overview and Summary

The applicant, Boucher, sought leave to appeal against both his conviction and sentence in relation to charges of procuring a child to engage in sexual activity outside of Australia, and using a carriage service to solicit child pornography, transmit indecent communications to a person under 16, and groom a person under 16 for sexual activity. The Supreme Court of Victoria was asked to review the trial judge's decisions on evidentiary matters and the sentencing principles applied.

The court examined whether the trial judge erred in admitting a photograph of a screenshot as evidence, and if there was an error in admitting tendency evidence. The applicant also contested the trial judge's refusal to discharge the jury due to remarks made by the prosecutor regarding the applicant's mental health. The court considered relevant sections of the Criminal Procedure Act 2009 (Vic), Evidence Act 2008 (Vic), and Jury Directions Act 2015 (Vic), as well as relevant case law including Larsen (a pseudonym) v Director of Public Prosecutions (Cth) [2020] VSCA 335.

The court found no basis for allowing an appeal against the conviction. The trial judge's decisions on evidence and jury directions were upheld. The court determined that the trial judge correctly applied the law and the judge's decisions were not shown to be erroneous. Regarding the sentence, the court held that the applicant had not demonstrated that his physical health issues established a 'serious risk of imprisonment having a grave effect'. The court also found that the principles from R v Verdins (2007) 16 VR 269 were correctly applied concerning mental health and the principle of totality.

The Supreme Court refused leave to appeal against both the conviction and the sentence.

Orders