Court of Appeal (Vic)|2011-10-28|Before: Neave JA, Hansen JA

Larsen v The Queen [2011] VSCA 325 (28 October 2011)

DPP v Larsen (Unreported, County Court of Victoria, Judge Jenkins, 12 October 2010)

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:

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

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

2 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 sentence imposed on a serious offender for a relevant offence must be cumulated on other sentences, unless the court otherwise directs.

3 The appellant appeals[2] against the sentence he received. The grounds of the appeal are:

(1) The sentencing discretion miscarried as a result of sentence being imposed on charges 2, 3, 6, 7 and 9 on the basis that the maximum penalty applicable was 15 years' imprisonment when the correct maximum penalty was 10 years.

(2) The sentencing judge erred in failing to take into account in mitigation that the appellant would be prevented from living in Australia by reason of these offences.

(3) The sentencing judge erred in taking into account in sentencing on charge 1 the volume of material received by the appellant.

(4) The sentencing judge erred in finding that significant weight needed to be given to specific deterrence when she had found that the appellant had good prospects for rehabilitation.

(5) The total effective sentence was manifestly excessive by reason of the orders for cumulation.

4 There were two victims - MS, who was 14 years old when the offences occurred against him, and AT, who was 14 years old when the offences commenced against her. AT was 15 years old at the time of the last offence against her. The appellant was 33 when the offences commenced against MS and 34 when the offences commenced against AT.

5 Between 1 December 2007 and 28 February 2008 MS was contacted by the appellant through an online teenage gay/bisexual chat room and meeting site. In his on-line profile, MS stated he was 14 years old, from Melbourne and was looking for a partner of a similar age. The message from the appellant made it clear that he wanted to 'hook up' for a sexual meeting. Several messages were exchanged. The appellant told MS that he was 24 years old (when in fact he was 33). The appellant gave MS the directions to a toilet in a shopping centre. He told MS that he would stick his foot out of the toilet cubicle and would be wearing white runners.

6 MS followed the directions. A sexual exchange then occurred from underneath the toilet cubicle where the appellant inserted his penis into the mouth of MS (Charge 3 - Sexual penetration of a child under the age of 16 years). The appellant then performed oral sex upon MS by having MS insert his penis into the appellant's mouth (charge 2 [Representative Charge] - Sexual penetration of a child under the age of 16 years). On that same occasion, MS masturbated the appellant, with the appellant then masturbating MS. Neither MS nor the appellant spoke during this encounter.

7 Charge 2 is a representative charge in that one to two weeks later the appellant sent MS another message wanting to 'hook up' again. The meeting was to take place at the same location. Again a sexual exchange occurred from underneath the cubicle, with the appellant performing oral sex on MS by inserting his penis into the appellant's mouth (Charge 2 - the other occasion in the representative charge). On this occasion the appellant also masturbated MS (part of the surrounding circumstances).

8 A week or two after the second incident the appellant contacted MS via MSN messenger and asked him if he knew any girls of MS's age who would be interested in a threesome. MS told the appellant that he knew of a 13 year old girl called AT who might be interested, and sent the appellant a photograph of AT via MSN messenger. The appellant offered to give money to MS and to AT if AT agreed to meet with him. MS then messaged AT and gave her the appellant's MSN details. MS did not receive any money from the appellant and did not have any more contact with the appellant after sending AT the appellant's details.

9 In June 2008, the appellant contacted AT on MSN and told her he was 24 years old (when in fact the appellant was 34 years old). AT told the appellant she was 13 years old (in fact she was 14 years old). Further the appellant told AT that he was willing to pay her money in exchange for sexual favours. The appellant asked for a photograph of her, which AT sent through.

10 Between 1 June 2008 and 23 September 2009, the appellant met AT on four occasions where the appellant gave her money in exchange for sexual favours (Charge 4: Enter an agreement for child sex services). This is a rolled up charge with the four occasions being detailed further below.

11 The first time AT met the appellant was in June 2008. The appellant arranged to meet AT at the railway station. She arrived around 10.30pm having sneaked out of the house whilst her parents were sleeping. The appellant introduced himself as Pat and drove her to a nearby side street. Whilst in the vehicle the appellant asked AT if he could touch her and she agreed. The appellant then touched her on the breasts. The appellant kissed her nipples and put his hand down the front of her jeans and touched the outside of her vagina. AT then masturbated the appellant until the appellant ejaculated (Charge 5 - Indecent act with a child under 16 years). After the appellant ejaculated, he gave AT $120.00 before driving her back to the station (this monetary amount is part of Charge 4).

12 On another occasion which took place between 1 August and 30 September 2008, the appellant arranged to meet AT at another railway station. They then went to a hotel room, the appellant having told AT to follow at a distance behind him. The appellant asked AT if the appellant could take some naked pictures of her and she agreed on the condition that she could cover her face with her hands. The appellant showed her the photos. Shortly after, he inserted his finger into her vagina (Charge 7 - Sexual penetration of a child under 16 years). The appellant then asked AT to perform oral sex upon him. AT complied and the appellant inserted his penis into her mouth (Charge 6 - Sexual penetration of a child under 16 years). The appellant wore a condom. AT then masturbated the appellant's penis to ejaculation. On this occasion the appellant gave AT $170.00 (this money amount is part of Charge 4).

13 On an occasion between 1 March 2009 and 31 March 2009, the appellant arranged to meet AT at a motel through MSN messenger. The appellant placed a dental dam on her vagina and performed oral sex on the outside of AT's vagina (Charge 8 - Indecent act with a child under 16 years). The appellant also kissed AT on the mouth, neck, nipples and stomach. The appellant requested that AT sit on top of him while he lay on his back. The appellant inserted his penis inside her vagina (Charge 9 - Sexual penetration of a child under 16 years). AT told the appellant she was feeling pain and they changed positions continuing penile/vaginal sex (treated as part of the same incident in Charge 9). The appellant wore a condom. He gave AT $150.00 (this monetary amount is part of Charge 4). At the time of the offence, AT was 15 years old.

14 Between 1 September 2009 and 23 September 2009, the appellant had a conversation with AT on MSN messenger and arranged to meet her again. On this occasion, AT decided she did not want to perform any sexual acts with the appellant. She demanded money from the appellant and threatened to call the police. The appellant gave AT $200.00 (this money amount is part of Charge 4).

15 AT telephoned her social worker and told her about the appellant, and the matter was reported to police. On 24 December 2009, police attended at the appellant's workplace where he was arrested. He was taken by police to his home address where police executed a search warrant. During the search, police located and seized the appellant's hard drive and laptop. The hard drive and laptop computer were taken to the E-Crime Unit, where police reviewed a chat log and images on the hard drive, and images contained in the laptop computer. The chat log depicted chats between the appellant and 12 other internet users exchanging photographs containing child pornography. Between 4 November 2007 and 23 November 2007, the appellant transmitted approximately 1714 images (Charge 1 - Knowingly using an online information service contrary to s 57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995) and received approximately 1535 images. Police also observed on the hard drive and laptop computer approximately 2300 images of children aged approximately between the ages of two years old and 16 years old pictured in an indecent sexual manner with male adults (Charge 10 - Knowingly possess child pornography).

16 The Crown concedes that the sentencing discretion in this case miscarried as a result of sentence being imposed on charges 2, 3, 6, 7 and 9 on the basis that the maximum penalty applicable was 15 years' imprisonment when the correct maximum penalty was ten years. In this regard, the learned sentencing judge was led into error by the prosecutor below.[3] Further, the Crown concedes that this is not a case where the sentences in respect of charges 2, 3, 6, 7 and 9 fell so far below the maximum that the correct appreciation of the maximum sentence could not have affected her Honour's discretion.[4]

17 The real question so far as ground 1 is concerned is whether or not different sentences in relation to charges 2, 3, 6, 7 and 9 should be imposed. Unless the Court is satisfied that a different sentence, or different sentences, should be imposed in respect of any of these charges, the Court must dismiss the appeal in relation to that sentence, or those sentences.[5]

18 Each of the five charges the subject of ground 1 is a charge of sexual penetration of a child under 16 years. The circumstances in relation to each of these charges is set out above. The objective seriousness of each charge cannot be denied. In our view, the sentences imposed in relation to these charges, and the orders for cumulation in respect of them, were lenient. Looking at the circumstances of each charge, the circumstances of the appellant (including the appellant's previous good character, the appellant's previous good work history, the appellant's early plea of guilty, the appellant's degree of remorse and the appellant's willingness to undergo appropriate treatment) and the matters in mitigation referred to in the learned sentencing judge's considered and careful reasons for sentence, we are not persuaded that any different sentence should be imposed on charges 2, 3, 6, 7 and 9. Similarly, we are not satisfied that any different orders for cumulation should be made in respect of these charges.

20 In ground 2, complaint is made that the learned sentencing judge erred in failing to take into account in mitigation that the appellant would be prevented from living in Australia by reason of the offences for which he fell to be sentenced. This ground overstates any argument in respect of the issue of potential deportation that is reasonably open to the appellant, based on either the evidence or any concession made by the Crown below. There was no evidence led before her Honour (and no concession made by the Crown) that the appellant would be prevented from living in Australia as a result of his offending. Indeed, the issue was not the subject of any evidence below.

21 On a fair reading of the prosecutor below's submissions, the only concession made was that having regard to what this Court said in Guden v R,[6] a relevant sentencing consideration to be evaluated, without being speculated upon, is the prospect of deportation. No greater concession than this was made by the Crown below.

22 In her reasons for sentence, the learned sentencing judge said in relation to this issue:

Fourthly, your counsel submitted that the Court may properly take into account the likelihood that you will be deported following your release from custody and that custody will be more burdensome for you in view of that prospect (R v Guden). In the circumstances I do not accept that this is a valid mitigating factor. Your offending was committed over an extended period and beyond the date when you made application for permanent residency.

23 The appellant submits that her Honour's reasons for not taking into account the prospect of deportation were erroneous in that the fact that offending extended over a period beyond the date when an application for permanent residency was made could not, of itself, make the prospect of deportation irrelevant. Accepting the appellant's argument for present purposes, the short answer to ground 2 is that there was no material led in evidence (and no concession made by the Crown) that would have enabled her Honour to do anything other than speculate as to any prospect of deportation at the conclusion of the appellant's sentence. Accordingly, accepting that her Honour's reason for failing to take into account the prospect of deportation was erroneous, her Honour in fact reached the correct conclusion that the matter should not be taken into account, having regard to the lack of any relevant evidentiary basis or appropriate concession by the Crown.

24 It follows that no error has been established in respect of her Honour's failure to take into account the prospect that the appellant would be prevented from living in Australia by reason of his offending. Accordingly, ground 2 must fail.

25 In ground 3, complaint is made that the learned sentencing judge erred in taking into account in sentencing on charge 1 the volume of material received (rather than transmitted) by the appellant. The facts founding charge 1 constitute a contravention of s 57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995. Section 57A of that Act makes it an offence for a person to knowingly use an on-line information service to publish or transmit, or make available for transmission, objectionable material of the kind referred to therein.

26 The appellant submits that the learned sentencing judge 'sentenced on the basis that the offence comprehended both sending and receiving material'. In this regard, reliance was placed upon paragraphs 55 and 112 to 114 of her Honour's reasons for sentence. We do not accept this submission. Such references as her Honour made to the receiving of child pornographic material were, in our view, explicable as being contextually relevant to the transmission of material which formed the basis of charge 1. When one examines her Honour's reasons for sentence at paragraph [126],[7] it is apparent that her Honour imposed sentence for transmission (charge 1) and possession (charge 10). No sentence was imposed for receiving pornographic material.

27 It follows that ground 3 must fail. Even if we were not of this view, we would have concluded that the transmission of 1,714 images, some of which involved child/adult penetrative sex, did not justify or deserve any lesser sentence (both as to charge 1 and as to the order for cumulation) than her Honour imposed.[8]

28 In ground 4, complaint is made that the learned sentencing judge erred in finding that significant weight needed to be given to specific deterrence when (it was contended) her Honour had found 'that the applicant had good prospects for rehabilitation'. In elaboration of this ground, the appellant submitted that her Honour 'in effect made inconsistent findings'. In support of this submission, the appellant pointed to paragraphs [95] and [130] of her Honour's reasons for sentence. It was submitted that at paragraph 95 'The learned judge indicated she accepted the appellant had good prospects for rehabilitation'.

29 The finding alleged at paragraph [95] was contended to be inconsistent with what her Honour said at paragraph [130], namely:

Specific deterrence must remain an important objective in the sentencing disposition for you. Your offending reflects serious sexual deviant behaviour toward children in circumstances where you are not in an adult relationship and where you have been assessed to feel that you have more control with adolescents. For reasons already mentioned, your behaviour demonstrates a serious lack of insight and an apparent reckless disregard and contempt for your victims and the consequences of your offending conduct. The offences are also relatively recent.

30 Underlying ground 4 is a contention that if an offender has good prospects for rehabilitation, specific deterrence cannot be an important objective (or perhaps an objective at all) in the sentencing disposition. Whilst there are obviously some cases where reasonable or good rehabilitation prospects will reduce the need for specific deterrence, that is not inevitably the case. Indeed, a sentence taking account of the need for specific deterrence may reinforce the offender's attempts at rehabilitation. Thus, the existence of good prospects for rehabilitation does not mean that specific deterrence must take a lesser role than that which is appropriate in all the circumstances.

31 Be that as it may, the short answer to ground 4 is that it is a mischaracterisation of her Honour's reasons for sentence to say that her Honour accepted that the appellant had good prospects for rehabilitation. Her Honour spent a number of paragraphs of her Honour's reasons devoted to the risk of the appellant re-offending and his prospects of rehabilitation. Her Honour started by noting that a psychologist called on behalf of the appellant had assessed him at a moderate risk of re-offending overall. Her Honour then noted in terms of the appellant's rehabilitation that the psychologist recommended that the most pressing need for the appellant was to participate in a comprehensive sex offender treatment program. Her Honour then discussed a number of matters concerning the appellant's prospects for rehabilitation, before saying:

At the same time I acknowledge that you are also an obvious candidate for the Sex Offenders Program. The effective treatment of your pursuit of young teenagers, male and female, for sexual gratification and your attraction to child pornography is clearly critical to your rehabilitation and your risk of reoffending.

32 Her Honour then dealt with the plea made by the appellant's counsel. It was in the course of dealing with the plea that her Honour said, at paragraph [95]:

Thirdly, your counsel submitted that there are a number of indications that you have expressed remorse for your offending conduct and acceptance of responsibility for it. In particular, Mr Newton [the psychologist] noted that you expressed remorse and regret at your involvement in these events. You now considered your conduct to have been shameful and misguided. You were also able to express some empathy for the victims of your offending. You have also expressed your willingness to engage in any sex offender treatment program. Your counsel also referred to your academic record and excellent work history. I agree that these matters are relevant to your good prospects for rehabilitation. (emphasis mine)

33 Fairly read, her Honour made no finding that the appellant had good prospects for rehabilitation. All her Honour said was that there were matters submitted by the appellant's counsel which were relevant to the prospect of successful rehabilitation. None of what her Honour said was inconsistent with a conclusion that specific deterrence, in the circumstances of this case, was an important objective in the sentencing process.

35 In ground 5, complaint is made that the total effective sentence was manifestly excessive by reason of the orders for cumulation.

36 In further amplification of ground 5, the appellant submitted the following:

(a) The orders for cumulation produced a sentence which breached the principles of totality. In particular, it was said that the cumulation in relation to the charges in respect of the offences against MS and AT on what was said to be 'the substantial sentence imposed on charge 9' was too great.

(b) The 2½ years cumulated in respect of the offences against MS, who was said to be a willing participant who had not complained to the authorities, was too great having regard to the principle of totality.

(c) Moderation of the sentences in respect of charges 5 to 9 was required in order to avoid double punishment by the sentences in respect of charges 5 to 9 on the one hand and charge 4 on the other hand.

(d) The head sentence was obviously excessive having regard to the Crown recommendation below that the upper end of the range was seven years.

(e) The appellant's early guilty plea, remorse, willingness to engage in a sex offender program, previous good character, loss of employment and the burden he suffers because of the likely removal of his opportunity to settle in Australia, in combination required a lower head sentence.

37 We reject these submissions. First, the 'willingness' of MS and AT to participate in the acts with which the appellant was charged had little if any impact on the appellant's moral culpability.[9] Secondly, the appellant was sentenced for substantial criminal conduct against two victims and involving different episodes from approximately early 2008 to March 2009. The ground of manifest excess can only succeed if the Court is satisfied that:

A sentence is so egregiously erroneous that the sentencing judge must have made a sentencing error although that error cannot be identified. To succeed on this ground the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.[10]

38 Cumulating 2½ years in respect of the appellant's criminal conduct in relation to MS cannot, on any view, be said to be outside the range of a reasonable discretionary judgment on the matter. The same may be said in relation to charges 4, 5 and 6 in respect of which an additional 15 months was cumulated on the sentence imposed on charge 9. Charge 4 was a very serious charge. Even though there are elements of overlap between it and charges 5, 6 and 9, some cumulation was required. In the circumstances, six months was not outside the range.

39 Initially, we had some concern about the sentences imposed in respect of the pornography charges (charge 1 and charge 10) and the orders for cumulation in respect of those charges. Whilst these sentences and orders for cumulation were not the subject of a specific ground of appeal, we were concerned that the appellant may have been subjected to double punishment in respect of them. However, when we raised this matter with counsel for the appellant in argument, counsel for the appellant conceded that he could not submit that there was any double punishment in respect of these sentences and their related orders for cumulation. Accordingly, nothing further need be said about this issue.

40 At the plea hearing, the Crown submitted that the appropriate effective head sentence range was five to seven years. Her Honour was, of course, not bound by that range.[11] That said, the question for this Court is whether the sentence was outside the range in the sense to which we have already referred. In our view, it was not. Taking account of all of the matters to which we have already referred, we consider that the sentence imposed was stern, but not beyond the range of sentences which could be imposed in the reasonable exercise of her Honour's sentencing discretion.

[1] Under s 6D of the Sentencing Act 1991.

[2] Pursuant to leave granted on 8 June 2011.

[3] Not the same counsel as counsel briefed for the Crown on this appeal.

[4] R v Beary [2004] VSCA 229; (2004) 11 VR 151 at 159 {21].

[7] At [126], the learned sentencing judge said:

'In your case you were not only found in possession of child pornography but you had also transmitted it to others. ... While the quantity and context of the images which you held and transmitted do not fall within the worst categories of cases, they are nevertheless extremely grave, having regard to the significant number of images; the age of the subjects; and the range of sexual acts depicted. A significant degree of cumulation of sentences must apply within the limitations of the principle of totality.'

[9] Clarkson v The Queen [2011] VSCA 157.

[10] Hanks v R [2011] VSCA 7, [22] (Bongiorno JA).

[11] Hilder v R [2011] VSCA 192, [42] (Maxwell ACJ).

(Publications, Films and Computer Games) (Enforcement) Act 1995

Larsen v The Queen [2011] VSCA 325

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Larsen v The Queen [2011] VSCA 325 (28 October 2011)

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