Director of Public Prosecutions v Bouris
[2020] VCC 1486
•17 September 2020
AT MELBOURNE | Revised Not Restricted Suitable for Publication | ||
| GENERAL LIST | |||
| CR-20-00418 | |||
| DIRECTOR OF PUBLIC PROSECUTIONS v TERENCE BOURIS | |||
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| JUDGE: | HER HONOUR JUDGE HASSAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 and 7 September 2020 |
| DATE OF SENTENCE: | 17 September 2020 |
| CASE MAY BE CITED AS: | DPP v Bouris |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1486 |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Sentence — sexual penetration of a child under 16 — grooming a child under 16 for sexual conduct — standard sentence offence — rolled-up charge — plea of guilty — remorse — general deterrence — denunciation — victim impact statements — sex offender registration |
| Legislation Cited: | Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic) |
| Cases Cited: | - |
| Sentence: | Total effective sentence of three years and nine months with non-parole period of two years and six months Section 6AAA declaration: total effective sentence of six years and six months with non-parole period of four years and six months |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L Cameron | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr L Hartnett and Ms E Byrt | Papa Hughes Lawyers |
HER HONOUR:
1Terence Bouris, you have pleaded guilty to one charge of sexual penetration of a child under 16 (charge 1), for which the maximum penalty is a term of imprisonment of 15 years.
2Sexual penetration of a child under 16 is also a standard sentence offence, and the standard sentence is a term of imprisonment of six years.
3You have also pleaded guilty to a charge of grooming a child under 16 for sexual conduct (charge 2), for which the maximum penalty is a term of imprisonment of 10 years.
4Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’.
5 In brief, the circumstances of your offending were as follows.
6In November 2019, you had joined and were using an online dating application called ‘Planet Romeo’. You were 62 years old at the time.
7The victim, Duncan Boyle,[1] was also using Planet Romeo in November 2019. Mr Boyle was only 12 years old at the time. His profile name was ‘iwanttofuc’ and he posted images of himself dressed only in his underwear.
[1] A pseudonym.
8On 4 November 2019, you initiated a text message conversation with the victim via the Planet Romeo mobile telephone application.
9Your dating profile stated that you were 52 years old. The victim’s dating profile stated that he was 18 years old.
10The conversation between you and the victim became sexual. You talked about where you lived and the victim gave you his father’s address, where he was staying, and you agreed to meet outside this address.
11After arranging to meet, you and the victim had a conversation about the victim’s age. He initially told you he was 17 years old. The conversation discloses that you expressed some disbelief as to whether this was in fact the case, and you were somewhat reluctant to meet, but you were also highly excited at the prospect of meeting the victim and having sexual contact with him, and the messages that you exchanged with him were sexually explicit.
12At approximately 4:25pm on 4 November 2019, you drove to the victim’s father’s home to meet with the victim in person.
13You arrived there at 4:42pm and parked your car directly in front of the house. CCTV footage from the address captured the arrival of your car and depicted your car outside the address.
14After arriving at the victim’s address, you continued to exchange messages with the victim via the Planet Romeo application for approximately 11 minutes, while the victim remained inside the house and you remained in your car.
15During this messaging, the victim told you that he was 14 years old. Excerpts from the conversation are as follows:
Victim: ‘I’m scared’
‘As soon as I get in can I suck ur dick’
Offender: ‘Just come to the drivers window’
‘Up to you’
Victim: ‘Ok’
‘I’m 14 I confess’
‘I just want to suck dick’
‘Can I still’
‘Suck urs’
‘Plz’
‘Plz’
Offender: ‘That’s too young’
‘Can chat’
Victim: ‘No plz’
‘I can still suck’
‘U’
Offender: ‘Come to my car’
Victim: ‘If ur ok with it’
‘Ok’
Offender: ‘Up to you, no problem’
16Shortly after this exchange, the victim came out of the house and got into the front passenger seat of your car. Upon meeting the victim, you commented that he was too young, and you were too old.
17The victim said he was going through a difficult time in terms of his sexuality and you had a brief discussion about this. You told him that you had also been through a difficult time when you were younger. You also continued to comment about the victim’s youthful appearance.
18After speaking briefly, the victim removed his pants and showed you his penis. You held his penis in your left hand, removed your seatbelt, leant over towards his groin area, and placed the victim’s penis in your mouth for approximately three to four seconds. This is the first act, which makes up charge 1, sexual penetration of a child under 16, which is a rolled-up charge.
19You then asked the victim whether he wanted to see your penis, and you removed your pants to expose your penis to the victim. The victim leaned over and put your penis into his mouth for about seven seconds, and this is the second act of charge 1, sexual penetration of a child under 16.
20The victim spent around five minutes in your car before he went inside. You drove away.
21Shortly after engaging in sexual activity with the victim, you continued to message the victim through the Planet Romeo application, suggesting that you ought to meet one another the following day, 5 November 2019.
22The following exchange ensued after you had left the victim’s home, commencing at 5:03pm:
Offender:‘Loved meeting you [emoji with love heart-shaped eyes]’
‘I will message you when I get home’
Victim: ‘Ok’
Offender: ‘I’m still hard thinking about you hehe’
I’m home now. Are you ok?
‘I’m still hard thinking about you [kissing emoji]’
‘Hi [Duncan], are you ok?’
Victim: ‘Yes’
Offender: ‘I really enjoyed meeting you’
Victim: ‘Same’
Offender: [Emoji with love heart-shaped eyes]
‘I am still hard lol’
Victim: ‘Same’
Offender: [Photograph of an erect penis]
Victim: ‘I want to do it again’
Offender: ‘I am free anytime you want to meet me’
‘I want to see you’
Victim: ‘Ok’
Offender: ‘Tomorrow?’
Victim: ‘Yes’
Offender: ‘Can I pick you up from the shops or somewhere. Spend some time together [two kissing emojis]’
Victim: ‘Ok’
Offender: ‘That would be nice. Really nice’.
Victim: ‘Kk’
Offender: ‘I am free anytime you want’
Victim: ‘Kk’
Offender: [Two emojis with tongue sticking out and love heart-shaped eyes]
‘Do you have any more photos please’
23The victim ceased participating in the conversation at this point on 4 November 2019, but you persisted into 5 November 2019. You continued:
Offender: ‘Hi [Duncan], are you ok?’
[Photograph of an abdomen which appears to have semen on it]
‘Good morning [Duncan]. I had a really nice dream last night [kissing emoji]’
‘Are you ok? I am worried about you’
‘Hi’
‘Are you ok? I am worried about you’
24This contact on 4 and 5 November 2019, including the transmission of the indecent images, is the basis of charge 2, grooming a child under 16 for sexual conduct.
25At approximately 9pm on 4 November 2019, the victim’s father, Harvey Boyle,[2] reviewed the CCTV footage from his residential security system. He observed your vehicle parked outside his home and his son getting into your car and remaining in it for a period of time.
[2] A pseudonym.
26Mr Boyle questioned his son, confiscated his mobile phone and took him to the police station.
27After initially disclosing to his mother, who had also attended at the police station, the victim made a statement to police describing his contact with you.
28You were arrested on 21 November 2019 and participated in a record of interview with the police. You told police you had made contact with the victim via Planet Romeo, believing the victim was 17 years old.
29You told police you had agreed to meet with the victim and went to his address on 4 November 2019, but the victim told you that he was 14 years old and your immediate response was, ‘well, obviously nothing can happen’.
30You told police the victim spent between five and 10 minutes in your car, but nothing of a sexual nature had occurred. You said that after meeting, you followed up with a few messages, which you said were not suggestive in any way.
31When you were asked by police to explain the CCTV footage, which captured the victim inside your car leaning over your groin area, you said that maybe the victim had dropped something.
32You made partial admissions in respect of charge 2, telling police that some of the messages and images which you had sent the victim were inappropriate and that you were ashamed for having sent this material.
33It is clear that in your record of interview you were only prepared to make admissions to matters about which you understood the police had objective evidence, such as the CCTV footage and text conversations, to substantiate. You denied the sexual offending against the victim.
34On 5 February 2020, the results of DNA analysis supported the conclusion that you were a contributor to the DNA found inside the front panel region of the red underwear worn by the victim on the day of the offence. After the receipt of the DNA evidence, this matter resolved promptly.
35You pleaded guilty to the charges on the indictment at a second committal mention on 6 March 2020. This is an early plea and it is accepted by the prosecution that it carries significant utilitarian value, particularly in the present context of extreme stress on the administration of criminal justice in this State caused by the COVID-19 pandemic. By virtue of your plea, you accept full criminal responsibility for your actions, and I am also prepared to find it is indicative of remorse on your part. You have also expressed your remorse in a letter to the Court, in which you state that you now understand that there was no excuse for your actions, and that reading the victim impact statements ‘made me feel sick to my core’. You go on, ‘I know saying sorry is easy, but I feel so sorry for hurting the victim and his family that it hurts me and makes me feel ill’.
36You have also expressed remorse to your daughters Lauren and Carly, Carly’s husband Clinton Cooper, and your friend Angus Sinclair, all of whom provided character references for you, which I will discuss more fully later on in these reasons.
37A number of victim impact statements were tendered at your plea. Duncan Boyle says he hates seeing his family upset and says he thinks it will take a long time for family life to go back to normal. Duncan’s mother Keira,[3] his father Harvey, and his sister have all made victim impact statements. All speak about the considerable anguish that your offending against Duncan has caused them.
[3] A pseudonym.
38The law must endeavour to protect children and young people from sexual exploitation by adults. This often involves protecting children against themselves and against the consequences of their own immaturity and poor decisions. In this case, there is no doubt that the victim put himself in a dangerous situation, by using an adult dating application and initially misrepresenting his age, and then agreeing to meet a much older man, but this in no way diminishes the seriousness of your offending. You were 62 years old, a mature man. He was 12 years old, still a child.
39The law imposes an absolute prohibition on sexual activity with children under 16, in order to protect them from the harm that is presumed to be occasioned by premature sexual experience. This includes future harm.
40You had every right to go on an adult dating application and seek adult sexual partners. You were not on the internet looking to have sexual contact with children and your offending was not premeditated in that sense.
41Further, you initially thought you were communicating with someone over 18 years old, although its apparent you began to have doubts about this almost at once. Your behaviour only became criminal when the victim told you he was 14 years old. At this point, you should have ceased communication. You knew what you were doing was wrong. The text messages disclose that you had reservations about what you were doing. You should have trusted your instincts, and adhered to your moral compass, which was alerting you that you were heading in the wrong direction.
42But you did not. You let your desire for a younger sexual partner overwhelm you and you had sexual contact with a 12-year-old boy, albeit you thought he was 14 years old, which in my view does not diminish your moral culpability.
43Your counsel Mr Hartnett submitted that the sexual contact was very brief, and that is true. Further, although charge 1 is a rolled-up charge consisting of two acts of sexual penetration, each act of sexual penetration was brief and was separated by only moments.
44After you had met with the victim, you had another opportunity to stop what you were doing, but you pursued the victim via text messaging to meet again. The victim initially showed some interest, but then stopped responding. Again, you kept texting him, although you did give up the following day, and your offending in respect of charge 2 was not protracted. You sent the victim two sexually explicit images during the communication which, in conjunction with the texts, is the basis of charge 2.
45It is the young age of the victim, and also, in my view, the fact that it must have been readily apparent to you when you met him, if not before, that he was a confused and vulnerable boy, which makes your offending objectively serious and your moral culpability high.
46I turn now to your personal circumstances.
47You were born on 21 March 1957. You are presently 63 years old.
48You were born in Hampton. You had a stable and supportive upbringing. Your parents ran their own catering business. You have a brother and two sisters, all of whom have led successful lives and are now retired.
49You did well at school and were good at sport. After your secondary education, you got a place at the University of Melbourne, but you were already working, and did not end up attending university.
50Following in your parents’ footsteps, you ran your own catering business with your brother, before moving into sales and accounting positions of some seniority in various companies.
51You married in 1980 when you were about 23, and you and your wife had two daughters born in 1983 and 1986.
52You and your first wife divorced in around 1995.
53You met your second wife in around 1997 and you married in 1998. You were together six years before this marriage also ended in divorce in 2003.
54In 1992, you were sentenced without conviction for dishonesty offences.
55In 2003, you were sentenced in this Court for 24 counts of theft and one count of attempted theft totalling $205,670.60. These thefts were from your employer and your offending spanned around two and a half years. You ran a trial and were sentenced to a total effective sentence of 21 months imprisonment with a non-parole period of 10 months.
56Your offending occurred when you were in the grip of a gambling addiction which had put you in significant debt.
57After you served your term of imprisonment, you relocated to Thailand to make a fresh start. You lived and worked in Thailand for 10 years and were in a relationship with a male partner for around three to four years. You have always identified as bisexual but had tried to keep your sexuality hidden from your family.
58You returned to Melbourne when your mother was diagnosed with lung cancer and given only a short time to live. You lived with your mother until she died in September 2018. Your father had died in 1990.
59You then relocated to New South Wales, but returned to Victoria, this time to support your daughter Lauren, who had drug-related issues.
60It was submitted that at the time of your offending, you were lonely and still grieving your mother and that you were legitimately seeking adult companionship via the dating application. As I have stated, I accept this and accept that your offending was not premeditated.
61Both your daughters have given character references. Your daughter Lauren says that you supported her with her long-term drug addiction. She says she is shocked by what you have done, but that she trusts you with her children. Your daughter Carly and her husband Clinton say that you are a loving father, and a loving grandfather to their children. Your friend Angus Sinclair says you have helped him in difficult times.
62Finally, before I conclude my remarks on your personal situation, after the plea in mitigation was conducted in this matter, there was a media report on this matter that was both inaccurate and inflammatory.
63Defence requested a further mention to make further submissions, to which I agreed, and which occurred, and at which both defence and the prosecution made further submissions to me. Mr Hartnett made it clear that he was not submitting that you should be immune from media interest and reporting, but he submitted that the inflammatory nature of the reporting, in which you were described as a rapist and a paedophile, would render your time in custody more onerous. He further submitted (and tendered further exhibits on this point) that the reporter had accessed your Facebook account and had referred to your Facebook account in his report. As I said at the mention, this is probably an entirely legitimate line of journalistic enquiry, but unfortunately, it alerted a number of readers to your Facebook account, and in turn allowed them to identify your daughters and other family members via Facebook. The upshot of all this is that your daughters are being subjected to unsolicited abuse from members of the public, or what is now commonly referred to as online ‘trolling’.
64I accept and give some weight to the difficult situation in which the reporting of your offending has put both you and, most particularly, your daughters. Your daughters’ situation will cause you concern and will make any term of imprisonment more onerous upon you.
65I now turn to the submissions of the parties.
66The prosecution submitted that, given the seriousness of your offending, the only appropriate sentence in this matter was a term of imprisonment consisting of a head sentence and a non-parole period.
67Defence urged me to consider a community correction order or a combined sentence of imprisonment and a community correction order.
68I declined to have you assessed. Although a community correction order is punitive as well as rehabilitative in nature, it is not adequately punitive to address the seriousness of the offences that you have committed.
69The offence of sexual penetration of a child under 16 is a standard sentence offence. The standard sentence is six years’ imprisonment. A standard sentence is not the same thing as a mandatory sentence, nor is the standard sentence the primary sentencing consideration or the starting point from which to add or subtract time. It is but one matter that I must take into consideration in the instinctive synthesis, and I do so.
70I was referred to cases on the offence of sexual penetration of a child under 16 imposed under the standard sentencing regime. There are at present only about a dozen or so of these cases. These cases were of some assistance in my consideration of what is an appropriate sentence for you. Ultimately, however, it is my duty to sentence you on the facts and circumstances particular to you.
71I also take into account the maximum penalties for the offences you have committed.
72In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of both general and specific deterrence. That is, I must deter others from behaving as you did, and I must deter you from repeating such behaviour. I must express the community’s denunciation of your conduct and I must also, if possible, promote your rehabilitation.
73I regard your prospects of rehabilitation as good. I accept that you are remorseful and deeply regret what you have done, and that you understand the wrongfulness of your conduct. You have the continued support of your daughters and I regard your risk of reoffending as low.
74Your prior offending for dishonesty offences was serious offending, but entirely different from the offending for which you now fall to be sentenced. I have concluded it has no real relevance to the sentence I impose in this case, save and except that this will not be your first time in custody. I take into account the difficult conditions in custody as a consequence of the COVID-19 pandemic.
75General deterrence and denunciation are the primary sentencing considerations in all cases involving the sexual abuse and exploitation of children. To repeat what I have already said, the law imposes an absolute prohibition on sexual contact with children in order to protect them. Adults, such as you, who transgress this prohibition, must expect stern punishment.
76Taking into account all the matters I am required to consider under the Sentencing Act 1991 (Vic) and the matters personal to you, the sentence I will impose on charge 1 is less than the standard sentence.
77On charge 1, you are convicted and sentenced to three years and six months’ imprisonment.
78On charge 2, you are convicted and sentenced to nine months’ imprisonment.
79I direct that three months of the sentence on charge 2 be served cumulatively on charge 1.
80This makes a total effective sentence of three years and nine months.
81Section 11A of the Sentencing Act 1991 (Vic) directs that unless it is in the interests of justice not to do so, the Court must fix a non-parole period, in this case, of at least 60% of the effective total term of imprisonment. In your case, I am setting a non-parole period of two years and six months.
82Sexual penetration of a child under 16 is a class 1 offence under the Sex Offenders Registration Act 2004 (Vic). Charge 2, grooming a child for sexual conduct, is a class 2 offence. Registration is mandatory. Both offences arose out of the same incident and you are therefore deemed to have committed a single class 1 offence. Consequently, you are subject to a reporting period of 15 years.
83I make the forfeiture order sought by the prosecution, which was unopposed.
84Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of six years and six months, with a non-parole period of four years and six months.
85Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served nil days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.
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