Larsen v The Queen

Case [2011] VSCA 325


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0376

HENRIK LARSEN Appellant
v
THE QUEEN Respondent

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JUDGES NEAVE and HANSEN JJA, BEACH AJA
WHERE HELD MELBOURNE
DATE OF HEARING 21 October 2011
DATE OF JUDGMENT 28 October 2011
MEDIUM NEUTRAL CITATION [2011] VSCA 325
JUDGMENT APPEALED FROM DPP v Larsen (Unreported, County Court of Victoria, Judge Jenkins, 12 October 2010)

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CRIMINAL LAW – Sentence – Sexual penetration of a child under 16 years – Enter into an agreement for child sex service – 2 victims – Possess and transmit child pornography – Total effective sentence of 7 years 9 months’ imprisonment, with non-parole period of 4 years 6 months not manifestly excessive – Incorrect maximum penalties referred to by sentencing judge – No different sentences should be passed – Appeal dismissed – No point of principle.

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Appearances: Counsel Solicitors
For the Appellant Mr JE McLouglin Victoria Legal Aid
For the Crown Mr BF Kissane Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
HANSEN JA:
BEACH AJA:

Introduction

  1. On 30 September 2010, the appellant pleaded guilty, and a plea was heard, in relation to the charges set out below.  On 12 October 2010, her Honour Judge Jenkins sentenced the appellant as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1

Knowingly using an online information service contrary to s 57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic)

10 years imp.

15 months imp.

8 months imp.

2

(Rep.Charge)

Sexual penetration of a child under 16 years

10 years imp.

30 months imp.

2 years imp.

3

Sexual penetration of a child under 16 years

10 years imp.

2 years imp.

6 months imp.

4

(Rolled up Charge)

Enter into an agreement for child sex service

15 years imp.

2 years imp.

6 months imp.

5

Indecent act with or in the presence of a child under 16 years

10 years imp.

12 months imp.

3 months imp.

6

Sexual penetration of a child under 16 years

10 years imp.

2 years imp.

6 months imp.

7

Sexual penetration of a child under 16 years

10 years imp.

2 years imp.

8

Indecent act with or in the presence of a child under 16 years

10 years imp.

12 months imp.

9

Sexual penetration of a child under 16 years

10 years imp.

3 years imp.

Base

10

Knowingly possess child pornography

5 years imp.

12 months imp.

4 months imp.

Total Effective Sentence:

7 years, 9 months imp.

Non-Parole Period:

4 years, 6 months imp.

  1. The appellant was sentenced as a serious sexual offender pursuant to s 6F of the Sentencing Act 1991 on charges 3 to 10. As a result, in determining the length of any sentence of imprisonment, the Court was required, on charges 3 to 10, to regard the protection of the community from the offender as the principal purpose for which the sentence was to be imposed.[1] Under s 6E of the Sentencing Act 1991 the…

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Details
AGLC
Larsen v The Queen [2011] VSCA 325
Case
[2011] VSCA 325
Decision Date

CaseChat Overview and Summary

The appellant was convicted of arranging to engage in sexual activity with two children under the age of 16, possessing child pornography, and transmitting the same. The High Court was asked to consider whether the total effective sentence of 7 years 9 months' imprisonment, with a non-parole period of 4 years 6 months, was manifestly excessive. The appellant argued that the maximum penalties for the child pornography offences were incorrectly cited by the sentencing judge and that a different sentence should be imposed for each offence.

The court noted that while the maximum penalties for the child pornography offences were incorrectly referenced, this did not impact the overall sentence as the maximum penalty for all offences combined was correctly applied. The court found that the sentence was not manifestly excessive and that the trial judge had considered all relevant factors. The court further determined that separate sentences for each offence were not warranted as the offences were part of a single course of conduct.

The appeal was dismissed as there was no point of principle involved and the sentence was deemed to be appropriate. The court held that the trial judge's approach was correct and that the sentence imposed was not manifestly excessive. The appellant's appeal was rejected, and the original sentence was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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