Boucher v The Queen

The applicant, Christopher Ronald Boucher, sought special leave to appeal to the High Court of Australia. The case concerned the application of s 10 of the Sentencing Act 1991 (Vic) to a sentence imposed for incitement to murder. The Court of Criminal Appeal of Victoria had previously considered the matter on two occasions.

The central legal issue before the High Court was whether s 10 of the Sentencing Act 1991 (Vic) applied to a situation where the maximum penalty for an offence had been significantly reduced. The applicant argued that the Court of Criminal Appeal had erred in its interpretation of s 10, asserting that it had erroneously dealt with a broader question of sentencing principle than was necessary for the case. Specifically, the applicant contended that s 10 should have applied even though the maximum sentence for incitement to murder had been reduced from 15 years to five years.

The applicant's submission was that the Full Bench of the Court of Criminal Appeal had incorrectly held that s 10 had no application when the sentence for an offence was changed, regardless of the extent of the change. The applicant maintained that s 10 did have application in this instance because the maximum sentence was five years, and that the Court of Criminal Appeal's reasoning for its inapplicability was flawed. The applicant presented the case as a test case with broader implications for sentencing principles in Victoria.