Bouris v The Queen - [2021] VSCA 245

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0223

TERENCE BOURIS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2021
DATE OF JUDGMENT:	3 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 245
JUDGMENT APPEALED FROM:	[2020] VCC 1486 (Judge Hassan)

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CRIMINAL LAW – Appeal – Sentence – One charge of sexual penetration of child under 16 – One charge of grooming for sexual conduct with child under 16 – Sentence of 3 years, 6 months’ imprisonment on first charge – Sentence of 9 months’ imprisonment on second charge – Total effective sentence 3 years, 9 months’ imprisonment with non-parole period of 2 years, 6 months – Whether sentence on charge 1 and non-parole period manifestly excessive – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person	--
For the Respondent	Ms K Hamill	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
KENNEDY JA:

Introduction and summary

On 6 March 2020, the applicant pleaded guilty to the charges set out in the table below and, on 17 September 2020, he was sentenced by a County Court judge as set out in the table below:[1]
[1]DPP v Bouris [2020] VCC 1486 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Sexual penetration of a child under 16 [Crimes Act 1958 s 49B] 15 years
3 years,

6 months
Base

2 Grooming for sexual conduct with a child under 16 [Crimes Act s 49M] 10 years 9 months 3 months

Total effective sentence: 3 years and 9 months’ imprisonment

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

Pre-sentence detention: Nil

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

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

The offence the subject of charge 1 is a standard sentence offence, with a standard sentence of 6 years’ imprisonment.[2]
[2]Sentencing Act 1991 ss 5A, 5B; Crimes Act 1958 s 49B(3). See n 10 below.

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

On 12 May 2021, Niall JA refused the application for leave to appeal.[3] The applicant has now elected to renew his application pursuant to s 315(2) of the Criminal Procedure Act 2009. He represented himself at the hearing of the application before us on 24 August 2021.
[3]Bouris v The Queen [2021] VSCA 123.

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

Circumstances of the offending

The summary of the circumstances of the offending set out below is based upon the prosecution opening summary on the plea, which was accepted as…

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 Bouris v The Queen

Details

AGLC: Bouris v The Queen [2021] VSCA 245
Case: [2021] VSCA 245
Decision Date: 3 September 2021

CaseChat Overview and Summary

Bouris appealed against his conviction and sentence in the Supreme Court of Victoria, where he was found guilty of sexually penetrating a child under 16 and grooming the same child for sexual conduct. The Court sentenced him to a total effective term of 3 years and 9 months imprisonment, with a non-parole period of 2 years and 6 months. The key legal issues for the Court of Appeal were whether the sentence on the first charge and the non-parole period were manifestly excessive. Bouris argued that the primary judge had not sufficiently considered his prospects of rehabilitation, his remorse, and the impact of the sentence on his family. The Court of Appeal assessed the submissions and determined that the sentence and non-parole period were not manifestly excessive. The Court found that the primary judge had adequately considered the relevant factors and appropriately balanced them in arriving at the sentence. The appeal against sentence was dismissed, and the application for leave to appeal was refused.

Orders