Bouris v The Queen - [2021] VSCA 123

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0223

TERENCE BOURIS	Applicant
v
THE QUEEN	Respondent

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JUDGE:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	12 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 123
JUDGMENT APPEALED FROM:	DPP v Bouris (Unreported, County Court of Victoria, Judge Hassan, 17 September 2020)

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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant pleaded guilty to one charge of sexual penetration of a child under 16 (charge 1) and one charge of grooming for sexual conduct with a child under 16 (charge 2) – Applicant sentenced to 3 years and 6 months’ imprisonment (charge 1) and 9 months’ imprisonment (charge 2), with a total effective sentence of 3 years and 9 months and a non-parole period of 2 years and 6 months – Whether sentence imposed on charge 1 and non-parole period manifestly excessive in all of the circumstances – Serious offending – Application refused.

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APPEARANCES:	Counsel	Solicitors
No appearances.

NIALL JA:

In order to meet a prospective partner, the applicant utilised ‘Planet Romeo’, a dating application and social network for gay, bisexual and transgender males. The victim used the same application with the profile name ‘iwanttofuc’. The applicant listed his age as 52 on his profile and the victim said that he was 18. Neither statement was true: at the time of the offending the applicant was 62 and the victim was 12.

The applicant initiated a text-based conversation with the victim via the application, which became increasingly explicit. After arranging to meet, there was some discussion about the victim’s age. The victim initially said that he was 17 years old but during the conversation the applicant expressed some disbelief as to whether that was the case. Nevertheless, the two exchanged sexually explicit messages and arranged to meet.

The applicant drove to the victim’s house and parked his car directly out the front. Before meeting, the two exchanged further messages. During that exchange the victim said that he was 14 and, using vernacular, that he wanted to engage in oral sex with the applicant. The applicant responded: ‘That’s too young. Can chat’.

Shortly after that exchange, the victim entered the applicant’s car and sat in the front passenger seat. Following a brief discussion, the victim removed his pants and underwear and the applicant placed the victim’s penis in his mouth. The applicant then removed his pants and the victim put the applicant’s penis in his mouth. These two incidents were the subject of charge 1, a rolled-up charge alleging a single act of sexual penetration of a child under 16.

After the applicant left the victim’s home they exchanged further messages. The victim ceased participating in the exchange that day but the applicant continued to send messages to the victim the following day. The applicant’s communications with the victim on those days, including the transmission of indecent images, formed the basis of charge 2, grooming a child under…

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 123
Case: [2021] VSCA 123
Decision Date: 12 May 2021

CaseChat Overview and Summary

The applicant in this case, Bouris, applied for leave to appeal against his sentence after he pleaded guilty to one charge of sexual penetration of a child under 16 and one charge of grooming for sexual conduct with a child under 16. The case was heard in the High Court of Australia, which was asked to determine whether the sentence imposed and the non-parole period were manifestly excessive.

The primary legal issue was whether the sentence of three years and six months’ imprisonment for the first charge and nine months’ imprisonment for the second charge was manifestly excessive. The applicant argued that the total effective sentence of three years and nine months, with a non-parole period of two years and six months, was disproportionate to the offending. The court was tasked with considering the principles of sentencing in light of the gravity of the offences and the need for deterrence and denunciation.

The court held that the sentence imposed was not manifestly excessive, taking into account the serious nature of the offences. It was noted that the applicant had no prior criminal history and had shown remorse. The court considered the principles of proportionality and the need to protect the community. The High Court concluded that the sentence and non-parole period were appropriate in the circumstances of the case, and therefore, the application for leave to appeal was refused.

Orders