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Boucher v The Queen [2022] VSCA 3

The offender was sentenced following trial by jury for 1 count of procuring a child to engage in sexual activity outside of Australia contrary to s 272.14(1), 1 count of using a carriage service to solicit child pornography using a carriage service contrary to s 474.19(1), 1 count of transmitting indecent communications to a person under 16 using a carriage service contrary to s 474.27A(1), 1 count of using a carriage service to groom a person under 16 years of age for sexual activity contrary to s 474.27(1) and 1 count of using a carriage service to solicit child pornography material contrary to s 474.27(1). All offences were contrary to the Commonwealth Criminal Code. Original sentence imposed 3 years imprisonment to be released on recognisance after 6 months. The offender appealed on the basis that the sentencing judge erred in findings about the offender’s physical health, erred in the application of Verdins, erred in the assessment of objective seriousness, and erred in the application of the principle of totality.  

Physical Condition: The sentencing judge drew a distinction between the risk that failure by the prison system to respond to an event would have a grave effect on the prisoner’s health and the risk that imprisonment itself would have that effect. The cases that the offender relied on for formulation of physical condition principle as broader also emphasised the responsibility of prison authorities to provide appropriate health care to prisoners. The distinction was not unorthodox or illusory.  

Mental Condition: The findings made by the sentencing judge were reasonably open to them. Whether an impairment in any given case should invoke the application of the mitigatory principle often turns on a matter of degree.  

Totality: Without knowing about any mitigatory factors applicable to the offender, one is immediately struck by the apparent leniency of the total effective sentence. For a person convicted of 5 charges of engaging in online sexual communications over a number of months involving persons under 16 of which several of the charges carry maximum terms of imprisonment of 15 years, a total effective sentence of 3 years imprisonment with only 6 months to be served suggests that a very substantial allowance must have been made for mitigatory factors. The offending with Hannah occurred after a gap of 5 months after the offending involving Amber. Even if offending have occurred at the same time some measure of cumulation would have been justified to reflect offending involving two separate recipients. The fact that an experienced sentencing judge did not actually use the worl totality is of no consequence.  

Leave to appeal refused.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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