Larsen v The Queen - [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

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.

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…

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 Larsen v The Queen

Details

AGLC: Larsen v The Queen [2011] VSCA 325
Case: [2011] VSCA 325
Decision Date: 28 October 2011

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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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.