The Queen v Boucher
[2021] VCC 1165
•18 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02228
| THE QUEEN |
| v |
| CHRISTOPHER BOUCHER |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 to 18 December 2020 (trial) | |
DATE OF SENTENCE: | 18 August 2021 | |
CASE MAY BE CITED AS: | The Queen v Boucher | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1165 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Found guilty at trial – Procure a child under 16 outside Australia to engage in sexual act – Solicit child pornography using a carriage service – Use carriage service to groom a person under 16 – Transmit indecent communication to a person who is, or is believed to be, under the age of 16 – Online offending against teenage victim and undercover police operative – Relatively serious examples of offence against victim – No prior criminal history – Offender suffers multiple physical health conditions – Personality disorder –Verdins – COVID-19 pandemic.
Legislation Cited: Criminal Code (Cth) ss 272.14(1), 474.19(1), 474.27(1), 474.27A(1); Crimes Act 1914 (Cth) ss 16A(2), 17A(1), 20(1)(b); Sex Offenders Registration Act 2004 s 34.
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; Director of Public Prosecutions (Cth) v Singh [2017] VSCA 146; Brown v The Queen [2020] VSCA 212.
Sentence: Imprisonment for 3 years, to be released after 6 months imprisonment on a recognizance of $3000 to be of good behaviour and to complete a sex offender treatment program.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr S Ginsbourg | Commonwealth Office of Public Prosecutions |
| For the Accused | Ms K Blair (plea) Ms E Murphy (sentence) | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Christopher Boucher, you have been found guilty by a jury of:
· one charge of procuring a child under 16 outside Australia to engage in a sexual act, contrary to s 272.14(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years imprisonment (Charge 3);
· two charges of soliciting child pornography using a carriage service contrary to
s 474.19(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years imprisonment (Charges 4 and 7);
· one charge of using a carriage service to groom a person who is, or is believed to be under the age of 16, contrary to s 474.27(1) of the Criminal Code (Cth), which carries a maximum penalty of 12 years imprisonment (Charge 6); and
· one charge of transmitting indecent communication to a person who is, or is believed to be, under the age of 16 contrary to s 474.27A(1) of the Criminal Code (Cth), which carries a maximum penalty of 7 years imprisonment (Charge 5).
2You have no prior Criminal Record.
Circumstances of the offending
3In sentencing you I am bound by the principles in the case of Cheung v The Queen.[1] As such, I must interpret the facts in a way that is consistent with the jury's verdict. Following the trial the prosecution tendered a document outlining the factual basis for the purposes of sentencing, distilled from the evidence at trial. The defence accepted that summary as a proper basis upon which to sentence. From that document, the facts may be summarised as follows:
[1] (2001) 209 CLR 1.
4At the time of the offending you were aged 26, having been born on 31 March 1993. You were a disability pensioner and living with your parents and sister in Glenroy.
Amber Abbott[2] (Charges 3, 4 and 5)
[2]A pseudonym.
5The victim in relation to Charges 3, 4, and 5 is Amber Abbott. At the time of the offending Amber was aged 14, having been born in December 2004. She was in 10th grade at high school and lived with her grandmother in Alberta, Canada.
6Amber met you online, soon after she turned 14, through her friend, Mia Malcolm[3]. Mia was then aged 13 and also lived in Alberta. Mia had been communicating online with you for at least two or three weeks via the instant messaging platform, Snapchat. Amber was having a sleepover at Mia’s home when Mia sent you a photograph of Amber. You told Mia, ‘She’s pretty, can I have her Snapchat?’ Mia gave you Amber’s Snapchat username, which you then used to initiate communication with Amber.
[3]A pseudonym.
7During your first conversation, Amber told you she was 14 and she repeatedly told you that throughout the period of your communications. You told Amber you were 17 years old and from Australia. You sent her a photo of a bodybuilder named Jeff Seid and said it was a photo of you. Amber believed this at the time. You told Amber she was pretty. You told her you wanted to talk to her in ‘a relationship way’ and to ‘go behind her back’, referring to Mia. She states that you said things that made her feel special.
8During your communications, you sent Amber screenshots of conversations you were having with other girls about having sex with them. This made her feel jealous. You continued to send her photos of Jeff Seid that you said were photos of yourself. You threatened to kill yourself if Amber stopped communicating with you. You communicated with Amber daily.
9You asked Amber to send you a photo of her breasts, and on another occasion, when she told you she was going for a shower, you asked her to send a video of her in the shower. She did what she was asked because she felt like she was ‘in love’ with you. It is the requests you made for a shower video that give rise to Charge 4, soliciting child pornography material.
10At some point during your communications, Amber asked you to provide some identification. You sent her a photograph of a page from your passport with your name, date and passport number visible, but with your thumb covering the photograph of yourself.
11At one stage after you had an argument, you told Amber that she had to play a ‘Simon says’ game with you to gain your trust back. You gave her a list of ten tasks to perform. The first task was for her to record a video of herself, topless, sucking on a brush, and to then send the video to you. The second task was for her to record a video of herself performing the same act and, in addition, spitting on herself and rubbing the brush on her breasts, before sending the video to you. She complied with both of these instructions.
12The third task was for Amber to record a video of herself playing with her vagina with the brush. She refused to. You then told Amber she could ‘skip to level 10’ by engaging in a sexual video call with you. She agreed to engage in the video call. During the video call, she complied with your instructions to show you her breasts whilst you masturbated so that she could see you, to the point of ejaculation. It is this conduct in procuring Amber to engage in sexual activity during the ‘Simon says’ game that relates to Charge 3, procuring a child outside Australia to engage in sexual activity.
13You created another Snapchat account with the username Jason Renaldo which you used to communicate with Mia, Amber, and one of Amber’s friends, Sienna Hardy[4]. During these communications, you pretended that Renaldo was a friend of yours and you staged an escalating conflict between the two of you. You sent messages to Sienna from the Renaldo account that claimed that you were engaging in sexual activity with other girls.
[4]A pseudonym.
14Subsequently, you told Amber that you had killed Renaldo because he was trying to expose your activities. You sent Amber messages using the Renaldo account claiming to have hacked into the account. During these messages, you threatened to ‘leak’ Amber’s ‘stuff’ if she didn’t ‘video call me and [sic] get me off tonight.' You intended that Amber would understand the reference to her ‘stuff’ to mean the sexual videos that she had sent you earlier. It is this demand by you that relates to Charge 5, transmitting indecent communications to a person under the age of 16.
15On about 9 February 2019, Mia used her phone to record a video of Amber and her communicating with you via a video call on Snapchat using Amber’s phone. During the call Amber said to you ‘you have my nudes’, to which you replied, ‘you set it up.’ Amber told you that you had messed up her life and that she had spent many nights crying because of you. You claimed the girls were ‘terroris[ing]’ you, and told them that you were going to retaliate by disseminating their nude photos and a recording of their video calls. Mia told you that the images she had sent you were fake. You replied ‘I don’t give a fuck, I [will] still leak them onto the net.’
16As a result of you telling Mia and Amber that you had killed Renaldo, they reported what had occurred to a teacher at their school. They were then persuaded to report the matter to the police, which they did on 14 February 2019 at Lacombe Police Service in Alberta, Canada.
17On 6 March 2019, the evidence obtained by Canadian police was reported to the Australian Federal Police (AFP) via a US agency known as the National Centre for Missing and Exploited Children (NCMEC).
Hannah Davies (Charges 6 and 7)
18
Upon receiving the NCMEC report, the AFP deployed professional member Emma Dimeska to conduct a covert online operation in relation to you.
Ms Dimeska subsequently communicated with you online, posing as a girl named Hannah, aged between 14 and 15. Charges 6 and 7 relate to your online communications with Ms Dimeska.
19On 30 April 2019, Ms Dimeska located your Facebook profile and, using an account that purported to belong to a girl aged less than 16, with the username Hannah Davies, sent you a Facebook friend request. You accepted the friend request. You and Ms Dimeska then communicated using Facebook Messenger.
20Ms Dimeska pretended that she had sent you the friend request because she believed you were someone she knew with the same name as you and who lived in Yass. You told her that you were not that person. Ms Dimeska nonetheless continued to communicate with you over the next few weeks. She pretended to be a teenage girl who lived with her mother. On 6 May 2019 she told you that she was aged ‘14 … almost 15.’
21
Initially, you expressed disbelief that Ms Dimeska’s persona, Hannah, was genuine, and continually challenged her to convince you to believe her. On
6 May 2019 you said to Ms Dimeska ‘for all I know I could be letting a 40 year old man "get to know me" lmao.’
22You communicated
with her on five days in May 2019, and then did not further communicate until 8 July 2019. Between 10 July 2019 and 12 July 2019, after you had continued to express disbelief that Hannah was a genuine person,
Ms Dimeska sent three images to you via Facebook Messenger that depicted a young female that she purported to be Hannah. Upon receiving these pictures, you replied ‘it’s not you lmao’, ‘you’re very suspicious … that girl looks 18+’.
23On 14 July 2019, Ms Dimeska created a Snapchat account with the username ‘Spannahdavies’ that purported to belong to a girl aged under 16. The following day, she told you that she ‘got Snapchat this morning.’ You asked her for her username, and when she provided it, you added her as a friend on Snapchat. You and Ms Dimeska then communicated using Snapchat.
24During your Snapchat communications, you continued to challenge Ms Dimeska to convince you that Hannah was a genuine persona. On 15 July 2019 you said ‘a live snap would prove that the picture is really of you, whereas on Facebook you can just send pictures saved from anywhere.’
25Ms Dimeska responded by sending an image depicting the face of a young female that she purported was Hannah. The following exchange then took place:
You: Okayyy maybe I believe that's really you now
Ms Dimeska: Duh hahah
You: Stilllll suspicious
Ms Dimeska: Omgggggg What other thing can I use to show you Like not this or Facebook then what other app
You: This is the best app to use
Ms Dimeska: Hold on. Mum wants me for a min
You: But still suspicious okayy
Ms Dimeska: Back. Umm why is this the best
You: Because snaps can't be faked like they can with other apps
Ms Dimeska: Ohhh ok Send one of you thenYou: I don’t think you've earnt that yet Still suspicious, plus it seems inappropriate since I'm 26
26The jury by its verdict must have accepted the prosecution case that, at least from this point in time onwards, you believed that Ms Dimeska was a child aged under 16, but you pretended to remain suspicious, with the intention that this would convince her to send images or videos depicting herself. It follows that the jury must have accepted that you believed that any sexual depictions of her that you solicited would be child pornography.
27You suggested that Ms Dimeska send a video to prove that she was genuine. She sent a two second video depicting the same young female that she had earlier purported was Hannah. You responded that you were ‘still suspicious’.
28Between 20 July 2019 and 22 July 2019, you and Ms Dimeska communicated with each other by both Facebook Messenger and Snapchat.
29On 20 July 2019 at 4.54pm you asked Ms Dimeska via Facebook Messenger ‘how was your birthday’, referring to her 15th birthday. Ms Dimeska replied ‘another year older.’
30You said you were still requesting a video ‘proving that you’re real’. Ms Dimeska replied that she had already sent you photos. You replied ‘you could show me moreee.’ You asked her to say ‘hi Chris’ in a video. Ms Dimeska sent a video of the young female purporting to be Hannah holding her fingers to her mouth and whispering your name. Upon receiving this video you said ‘suck on one of your fingers for me just to make sure.’ You described the female depicted in the images and videos that Ms Dimeska had sent you as ‘adorable’ and ‘seductive’.
31Ms Dimeska said that she was going to have a shower and wash and brush her hair. You asked her if you could watch her having a shower and ‘getting all wet and soapy.’ When Ms Dimeska said you had to provide a picture of yourself first, you said ‘Afterrrrr, you’ll def have earnt my trust after.’
32The same evening, you sent Ms Dimeska a picture via Snapchat of a finger with a face drawn on it and said ‘Thereeee My faceee.’ Ms Dimeska replied that that did not count. You said ‘Lemme watch you shower thoughh :(.’ Ms Dimeska asked you what that would prove. You replied ‘It would prove everythinggg And earn my trusttt’. Ms Dimeska refused the request and asked you to show her your face first. You said ‘Nahhh You could be a cop for all I know haha …’
33The following day, you again asked Ms Dimeska via Snapchat to let you watch her in the shower. The following exchange then took place:
Ms Dimeska: What exactly would you want me to do in the shower. I need a list haha
You: If I go to the trouble of writing a list do you promise you'll do it
Ms Dimeska: I kinda mostly promise I think haha Quick tho coz mum is flipping hahahaQuickkkk
You: You're justttt gonna let me watch youuu get undressed and run water on your bodyyy, massage and touch yourself all over getting all wet and soapy Simpleeee
Ms Dimeska: Touch myself like everywhere .. Even .. There ?
You: Of courseeee
You: There's your listtttt
34Later that day, you asked Ms Dimeska to show herself to you before she went to sleep instead. The following exchange subsequently took place:
Ms Dimeska: I don't feel sexy or seductive or whatever else you said Chris
You: Welllll you definitely areeeee
Ms Dimeska: :(
You Just that video with your prettyyy little face and your fin-gers held up to your mouth saying my name drove me cra-zyyyy
Ms Dimeska: Really ?
You: Yesssss haha reallyyyy omgggg
Ms Dimeska: Hmmm
You: Cmonnnn
Ms Dimeska: What do you mean it drove you crazy. Like what happened
You: Likeeee it turned me onnnn anddd I couldn't stop thinking about youuu
Ms Dimeska: Turned you on like .. You know ? Haha What were you thinking
You: Likeeemade me harddd asfffff and made me thinkkk about doinggg naughtyyy things with youuu
35The following morning at 8.33am, Ms Dimeska sent the message ‘:)’ to you via Facebook Messenger. She told you she was at school. You continued to flirt with her. You dared her to give a male student, Harry, ‘a hj under the desk.’ You said ‘I’d be under the desk eating you right now tbhhh.’
36At 6.45pm you sent Ms Dimeska a message that contained ‘You're gonna make my day even betterrr by conquering your shyness for me tonighttt tho’, and you later said ‘I wouldn’t mind licking gelato offff your bodyyy.’
37Your course of conduct towards Hannah from 20 July 2019 is the basis for Charge 6, using a carriage service to groom a person under the age of 16. The requests you made that she allow you to watch her showering during that period is the basis for Charge 7, soliciting child pornography material.
Arrest and interview
38On 23 July 2019, you were arrested at your home and interviewed by police. You admitted communicating with Mia and Amber but asserted that they had both told you that they were aged 18. You denied that your communication was sexualised. You admitted you had engaged in sexualised communication with Hannah, but asserted that you believed that she was an adult who was pretending to be younger. The jury by its verdict must have rejected your account.
Nature and gravity of the offending
39The charges to which you have been found guilty are recognised by Parliament as serious offences which is reflected in the maximum penalties as outlined above. Further, the seriousness of these types of offences have been reinforced in recent decisions in the Court of Appeal. In Director of Public Prosecutions (Cth) v Singh[5] the Court noted:
'These provisions, and related provisions prohibiting the use of the internet and other forms of communication for the purpose of seeking sexual involvement with children, are designed to protect young people from the considerable harm that may be done to them by such communications, even if physical sexual activity does not ensue. It is well established that persons who use the internet for such purposes will ordinarily expect to receive an immediate term of imprisonment. Deterrence, both general and specific, is the paramount sentencing consideration. It follows that less weight, relatively speaking, will be accorded to what might otherwise be significant mitigating factors.[6]
The seriousness of the offence under s 474.26(1) is not to be underestimated. The conduct which it prohibits is insidious and often highly damaging. The offending is calculated to harm children who are vulnerable to abusive, predatory approaches, which are of their nature liable to be kept secret from third parties. The maximum penalty for the offence is very substantial. The authorities are clear that the offence usually merits a term of immediate imprisonment. Lesser sentencing dispositions should be very rare. While there are a number of instances of noncustodial sentences having been upheld after appeal, several of them turned on features peculiar to Crown appeals. None of them should be seen as anything other than exceptional'.[7]
[5] [2017] VSCA 146.
[6] Ibid at [45] (citations omitted).
[7] Ibid at [64].
40While the Court was referring to a charge under s 474.26(1), in my view the observations of the Court apply with equal force in relation to the charges you have been found guilty of.
41In this instance, in relation to Ms Abbott, she told you in the very first communication that she was 14 years old and repeated her age to you on other occasions. Ms Abbott was young and vulnerable and believed that the relationship she had with you was genuine. You lured her into a false sense of security whereby she performed sexual acts at your request. The communications however became manipulative and ultimately you threatened to disseminate images of her unless she continued to perform for you.
42In relation to Charges 6 and 7, the recipient was a police operative, Emma Dimeska. Ms Dimeska communicated with you online, posing as a girl named Hannah Davies aged between 14 and 15. In that regard I note that while the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it.[8]
[8] The Queen v Fuller [2010] NSWCCA 192 at [35]. See also s 474.28(9) of the Criminal Code (Cth).
43It is your sexually explicit invitations to Ms Dimeska and your sexualised comments that give rise to the grooming charge, Charge 6. Your request for her to film herself in the shower is the conduct that gives rise to Charge 7. While the offences relating to the undercover operative are not aggravated by the presence of an actual victim, in my view the nature of the conversations that give rise to the charges is not unlike the conversations you engaged in with Ms Abbott. As such the objective seriousness of the offending is not dissimilar to that relating to Ms Abbott. However, other considerations elevate the seriousness of the offending in relation to Ms Abbott including the harm suffered by her and her personal circumstances which I am required to take into account pursuant to s 16A(2)(d) and (ea) of the Crimes Act 1914 (Cth).
44Mr Ginsbourg, who appeared on behalf of the Commonwealth Director of Public Prosecutions, submitted that the offending against Ms Abbott represents serious examples of their type and highlighted matters which he submitted aggravated the offending such as the age difference of 12 years between you and the victim, the frequency of the communications and the fact that Charge 5 involved a threat by you to disseminate the sexual images that resulted from Charges 3 and 4. Ms Blair, who appeared on your behalf, submitted that these are not features of aggravation over and above the circumstances that constitute the offending and should be assessed in determination of the gravity of your offending in the usual way. I accept that submission however, in my view in all the circumstances, your offending in relation to Ms Abbott represents a serious example of this type of online sexual activity with children under the age of 16. The offending in relation to the undercover operative was of a similar nature, however it did not result in actual sexual activity and, for the reasons noted above, it necessarily did not have the effect as if the conduct was committed with an actual victim under the age of 16.
Victim impact statement
45A victim impact statement was prepared by Amber Abbott and a recording of her reading that statement aloud was tendered on the plea.
46Ms Abbott speaks of the anxiety and depression she has experienced as a result of your offending. She laments how she genuinely believed that she had a future with you and then felt manipulated after discovering that you lied about your identity and your intentions for the relationship. She states that she now struggles to trust others, in particular men, and that your offending has undermined her confidence and ability to make new connections - both platonic and romantic - with others. Further, Ms Abbott states that the effects of your offending have extended to her education, as she finds it difficult to attend school and engage with male teachers.
47I take the contents of the victim impact statement into account.
Personal circumstances
48You were born in 1993 and are now 28 years of age. You have a younger sister. Your mother worked as a teacher’s aide and your father worked as a Sales Manager during your childhood. You had a positive relationship with your mother, notwithstanding you describe her as overprotective and strict. Your father had issues with alcohol, experienced issues at work and was often absent from the home environment. He would sometimes argue with your mother and then blame you and physically assault you. You have a close relationship with your sister who has completed a Bachelor of Arts and is currently completing a Bachelor of Science.
49You attended primary school and from the age of around five you presented with difficult behaviours. As a result you were seen by a number of child psychologists. These behavioural issues became more apparent during puberty and you engaged in acts of aggression towards your sister and parents.
50Up until Year 10 you were a good student academically. At the age of 15 you began drinking alcohol excessively and this coincided with the onset of physical and mental health issues, particularly depression, narcolepsy and Attention Deficit Hyperactivity Disorder (ADHD). You were absent from school at times due to these issues. As such, your friendships and academic engagement were compromised and, according to the psychological evidence, you developed a social phobia.
51On one occasion when you were around 15 you punched your father after he hit you and the police attended. An intervention order was granted in favour of your father and you left the family home for a short period to live at Hope Street accommodation in Brunswick. The intervention order was then varied and you returned to live at the family home, moving into the garage where you spent a lot of time isolated.
52Around this time you commenced a three year intimate relationship with a woman who was then aged 22. The relationship was unhealthy and turbulent, breaking up on many occasions. In the interim you would often seek out other intimate relationships. After the relationship came to an end, you began engaging in self harm, in particular, cutting.
53You completed Year 10 and unsuccessfully attempted Year 11 at Penola Secondary College and Box Forest Secondary College before leaving school. You worked briefly at the IGA supermarket whilst at school but you have largely struggled with gaining employment. In terms of further education, you completed a TAFE security course and a tertiary bridging course to allow you to study science at university. You commenced a Bachelor of Science at Latrobe University and enjoyed attending before the course moved to online due to the pandemic. You withdrew from the science degree due to the stress arising from this court matter and your ongoing serious health issues.
54Around the age of 21 you began receiving the Disability Support Pension on the basis of diagnoses of major depression and borderline personality disorder. You continue to receive this pension.
55Around the age of 24 you met your current partner, Christina, online. Christina lives in the United States and you have visited her twice. Your long distance relationship has continued and you speak daily. Christina remains supportive of you and you hope to obtain a visa to live with her in the United States.
56You continue to live at the family home with your parents. Your father has overcome his issues with alcohol and your relationship with him has improved. Your father now works as a pathology courier and your mother continues to work as a teacher’s aide. Whilst in the past you have developed friendships online, you do not currently have an active social life or a network of friends.
57Turning to your physical health issues, in 2014 and 2017 you were admitted to hospital due to symptoms arising from the ingestion of gym supplements. Around the time of this offending in early 2019 you developed symptoms such as delirium and high temperature and in May 2019, you were placed in a coma for a number of days as a result of thyrotoxicosis, potentially connected to a viral infection. You spent a number of weeks in the Intensive Care Unit for treatment and required plasma replacement therapy.
58In September 2020 prior to the trial, you began experiencing kidney related symptoms such as swelling of the legs, high blood pressure and impairment of kidney function. You were admitted to hospital and you were ultimately diagnosed with glomerulonephritis, an inflammatory kidney condition which has been ongoing requiring multiple admissions to hospital. You have also experienced cardiac issues for which you have received treatment.
59A report authored by Associate Professor Andrew Gall, Forensic Physician, was tendered on the plea. Dr Gall assessed your prior medical history and examined you on 4 May 2021. He confirmed that you currently suffer from ADHD, renal failure, dilated left ventricle and impaired cardiac function with mild to moderate coronary artery disease, and probable depression and anxiety. Dr Gall is of the opinion that your renal failure is unlikely to improve with time and, depending on the availability of a successful renal transplant, you will need regular haemodialysis. Dr Gall is also of the view that you would find custody more onerous due to your renal condition that requires constant and regular monitoring and management.
60Two reports were also prepared by Associate Professor Nigel Toussaint from the Royal Melbourne Hospital Department of Nephrology, dated 5 March 2021 and 31 May 2021. Dr Toussaint confirms that you are not currently active on the kidney transplant waiting list but being considered as to your suitability. If you do become active on that waiting list, you may still be on dialysis for many years before a kidney becomes available.
61Since the assessment of Dr Gall, you have continued on haemodialysis three times per week at an external facility. You will in the future undertake training in order for you to undertake haemodialysis at home once you are stabilised.
62Dr Gall gave evidence on the plea and had reviewed recent hospital admission notes since the writing of his report. He was of the view that your health has declined significantly from April to July this year and that in relation to your ongoing cardiac condition, identified as cardiomyopathy, you may require a heart transplant in the future. He was ultimately of the view that prison would be more onerous than for a person not suffering from your physical ailments. On this issue the prosecution accepts that your present health and prognosis carries significant weight.
63Two reports were prepared by Simon Candlish, psychologist, dated 7 February 2021 and 20 March 2021. For the purpose of writing the first report Mr Candlish was provided with a number of historical reports from numerous psychologists and other medical professionals.
64Mr Candlish provides a detailed history including your psychological history that reveals you have had intervention from psychologists as a child and adolescent. In 2011 you presented with borderline personality traits with persistent suicidal ideation and mood instability as well as narcissistic traits. In 2012 a psychologist opined that you presented with cluster B personality traits. Based on his own clinical assessment, Mr Candlish considered that you meet the criteria for Borderline Personality Disorder (Moderate). He is also of the view that your disorder is an enduring condition and will not necessarily worsen within the prison environment.
65In the first report Mr Candlish conducted a risk assessment using the Static-99R tool where you received a total score of three, placing you at ‘Average Risk’ for being charged or convicted of another sexual offence. The second report prepared by Mr Candlish was prepared in response to him receiving information about previous reports that had been made to police involving sexual allegations against you towards under age females in 2010 and 2013 over the internet, including an allegation of penetration of one of the complainants. These matters were subject to a ruling during the course of the trial. Having considered this material, Mr Candlish was of the view that your risk scoring and outcome remain the same. He was of the view however that you require moderate case prioritisation, including treatment in order to manage your risk.
66Mr Candlish gave evidence on the plea confirming the opinions in his report however categorised your personality disorder as ‘moderate to severe’ including that you demonstrated significant deficits in interpersonal functioning including heightened impulsivity and an underlying desire for sexual stimulation as a form of coping and distracting from negative moods. Under cross examination, he stated that given the length of time of the offending, heightened impulsivity could only explain some of your behaviour.
67A report was tendered from Cody Nyhan, psychologist. You attended a number of counselling sessions with Mr Nyhan in 2019 and again at the end of 2020 and beginning of 2021. Following psychometric testing, Mr Nyhan is of the view that you present with symptoms consistent with Persistent Depressive Disorder.
68You continue to have the love and support of your parents, both of whom attended the trial and plea hearing. They clearly have an understanding of your complex mental and physical health issues and continue to be actively involved in your ongoing treatment. Your father, Glenn Boucher, wrote a letter to the Court. He describes you as a loving and caring person who is intelligent and always willing to assist with household tasks. He considers you as his best friend. He also writes of your stoicism in relation to your physical health and the toll those issues together with these proceedings have had on you.
Sentencing considerations
69Following the plea hearing where a number of witnesses were called, the parties submitted further written submissions in response to the viva voce evidence. I have taken those submissions into account.
70As the charges to which you have been found guilty are Commonwealth charges, I am required to take into account a number of matters pursuant to s 16A of the Crimes Act 1914 (Cth). In his written submissions, Mr Ginsbourg detailed a number of the matters in s 16A(2) that must be given weight and I have taken those matters into account. In cases such as this it was submitted that general deterrence must be the paramount sentencing consideration, which is undoubtedly correct. Further, as noted above in Singh, in relation to offences of this nature, matters in mitigation carry less weight.
71You exercised your right to run a jury trial and as such you are not entitled to any discount that you would have otherwise received for a guilty plea. It was submitted that you have expressed to your father that you are remorseful for the pain you have caused everyone involved, including the girls you communicated with. Nonetheless it is clear that you lack insight into your behaviour and you have consistently denied any criminal wrongdoing.
72As pointed out in Singh above, deterrence, both general and specific, is the paramount sentencing consideration in cases of this nature. General deterrence is particularly important when the conduct is directed towards young children whose protection must be promoted.[9]
[9] The Queen v De Leeuw [2015] NSWCCA 183 at [72]; The Queen v Linardon [2014] NSWCCA 247 at [100].
73Ms Blair pointed out that as you do not have any prior criminal history or subsequent offending, you should be treated as a first time offender. However, you have been assessed as having an ‘average risk’ of reoffending and you require treatment to manage that risk. While you have supports in the community and have serious physical health issues to deal with, in my view specific deterrence must still play a part in the sentencing discretion. Your offending is able to be conducted in private, even when confined due to illness, and you must be deterred from that temptation.
74Your prospects of rehabilitation depend to some extent on you receiving ongoing treatment for your mental health issues. Mr Candlish stated in evidence that your prospects hinge upon you showing a willingness to engage in treatment. You have a supportive home environment and are linked to a number of health practitioners who have identified your various mental health concerns. In my view, if you maintain treatment for your mental health conditions, and engage in treatment specific to your offending, your prospects may be assessed as reasonable.
75Turning to your significant health concerns, most particularly your renal failure.
76The principles in relation to ill health are well established. Physical health or disability may be relevant in two ways. First, where imprisonment will be a greater burden because of the offender's health, and secondly, where there is a serious risk of imprisonment having a grave effect on the offender's health.[10]
[10] R v Eliasen (1991) 53 A Crim R 391at 396-97.
77I received an affidavit sworn by Scott Swanwick, Director, Health Service and Clinical Governance, Department of Justice and Community Safety.
Mr Swanwick gave evidence on the plea confirming the contents of his affidavit. Mr Swanwick states that there are currently a number of prisoners in Victoria with complex and chronic health conditions, which are able to be managed and treated. In your case, Mr Swanwick gave evidence that you would be able to attend dialysis sessions whilst in custody, including in quarantine. He also stated that there are instances of prisoners continuing dialysis off site, including at the Royal Melbourne Hospital, where you have been treated recently. He said that if you required daily dialysis off site then this would be accommodated.78I accept that your health issues will require significant management if you were in custody including as noted, possibly arranging dialysis a number of times per week off site. Further, it is self-evident that the arranging of appointments and treatment in the community are easier to maintain than within the prison environment where you will be entirely dependent on others.
79Ms Blair submitted that the evidence of Dr Gall was to the effect that major medical conditions are not always optimally managed in custody and as such imprisonment could have a grave effect on your health.
80In all the circumstances, in my view I am satisfied that imprisonment will be a greater burden upon you because of your current state of health. As to whether the evidence establishes that there is ‘a serious risk of imprisonment having a grave effect’ on your health, the evidence is not clear. Dr Gall is of the view that failure of the prison system to promptly respond to potential complications related to your conditions may significantly adversely affect your health. Therefore while you are vulnerable because of your conditions, the evidence is that any serious risk is based upon the failure of the prison system to respond to an event, rather than a serious risk of prison itself having a grave effect on your health.
81As to your mental health, Ms Blair submitted that Verdins principles are enlivened as a result of your borderline personality disorder. Mr Candlish is of the opinion that your disorder is enduring and has developed since adolescence. As is well established, if the impairment existed at the time of the offending there must be a ‘realistic connection’ between the two, or the impairment must have ‘caused or contributed to’ or be ‘causally linked’ to the offending.[11] As was observed in Brown v The Queen, [12] if an offender is to rely on a personality disorder in mitigation of penalty, the disorder would need to be of some severity and establish a clinically significant impairment of mental functioning.[13]
Mr Ginsbourg submitted that the evidence does not establish that your personality disorder caused or contributed to the offending, but at best, it may have made you more willing to exploit the vulnerability of children for your own gratification.[11] DPP v O’Neill (2015) 47 VR 395 at [74].
[12] [2020] VSCA 212.
[13] Ibid at [68]-[69].
82While I accept that you were suffering the disorder over the period of the offending, in my view the evidence does not disclose the requisite causal link, that is, it does not establish a clinically significant impairment of mental functioning that was present at the time of the offending. That said, I accept that your disorder is a matter I am able to take into account as part of your personal circumstances in the general sentencing discretion.
83In addition to your personality disorder, you also suffer from a major depressive disorder. Mr Nyhan and Mr Candlish are of the view that your psychological conditions will make prison more burdensome for you than for a person not suffering your conditions. Mr Candlish is also of the view that your personality disorder, being an enduring condition, will not necessarily worsen within the prison environment. I accept however that the deterioration of your physical health over the past months will also impact your mental health adding further to the burden of custody. Thus while the evidence does not suggest your condition will worsen in custody I accept that it will make custody more burdensome for you, thus enlivening Verdins principle 5.
84The COVID-19 environment would make prison more difficult for you in two respects. First, the general restrictions that apply to all prisoners that have impacted visits and programs in prison continue to be affected. Secondly, in your case if you were required to be quarantined, your medical treatments, while able to be undertaken, would be an added difficulty in that circumstance. I take these matters into account.
85While accepting the limitations on the utility of the provision of comparable cases, Mr Ginsbourg provided me with a number of appeal decisions of Australian intermediate appellate courts which I have taken into account.
86The offending is serious offending and in my view, pursuant to s 17A(1) of the Crimes Act 2014 (Cth), I am satisfied that no other sentence is appropriate other than a term of imprisonment that includes a period of immediate imprisonment. However, balancing the applicable sentencing considerations, including the need for just punishment and general deterrence, together with your significant health concerns and other matters in mitigation, in my view those considerations are able to be met by the imposition of a recognizance release order that will enable you to serve a considerable part of that sentence in the community, including requiring you to undertake the Sex Offender Treatment Program.
Sentence
87Mr Boucher, would you please stand?
88Christopher Boucher, in relation to the charges involving the victim Amber Abbott, on Charge 3, procuring a child to engage in sexual activity outside Australia, you are convicted and sentenced to 2 years imprisonment. On Charge 4, soliciting child pornography material, you are convicted and sentenced to 2 years imprisonment. On Charge 5, transmitting indecent communications to a person under the age of 16, you are convicted and sentenced to 18 months imprisonment.
89In relation to the charges involving the covert operative, on Charge 6, using a carriage service to groom a person under the age of 16, you are convicted and sentenced to 18 months imprisonment. On Charge 7, soliciting child pornography material, you are convicted and sentenced to 18 months imprisonment.
90The sentences on Charges 3, 4 and 5 will commence today. The sentences on Charge 6 and 7 will commence 18 months after the sentence on Charges 3 and 4 commence. The effect of the commencement dates is that 12 months of the sentence of Charges 6 and 7 become cumulative on Charges 3 and 4, making for a total effective sentence of 3 years imprisonment.
91Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), I direct that you be released after serving 6 months of that sentence and upon giving a recognizance in the amount of $3000 to be of good behaviour for a period of 3 years. Further, that as a condition of the recognizance release order you must complete the Sex Offender Treatment Program as directed by the Deputy Commissioner, Corrections Victoria or his or her nominee within a period of 2 years after release.
92I am required to explain to you that if you breach the conditions of the order you may be brought back before the court to be dealt with for that breach, which could include being ordered to serve the remaining prison component of the order, and you may forfeit the $3,000.
93Further, as you have been found guilty of one Class 1 offence (Charge 3) and four Class 2 offences (Charges 4, 5, 6 and 7), pursuant to s 34 of the Sex Offenders Registration Act 2004 you will be required to comply with reporting obligations for the remainder of your life.
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