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Asplund v R

Asplund v R

Case [2014] NSWCCA 237 29 October 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Asplund v R (Cth) [2014] NSWCCA 237
Hearing dates: 17.10.2014
Decision date: 29 October 2014
Before: Hoeben CJ at CL at [1]
Hidden J at [70]
Davies J at [71]
Decision:
Application for extension of time refused.

Catchwords: CRIMINAL LAW - sentence appeal - application for extension of time - doing an act with the intention of influencing a witness and possessing child pornography - applicant already serving a sentence for two serious indictable offences when sentenced for these offences - whether failure to consider alternative to custodial sentence - whether principle of totality properly applied - whether applicant's age should have been taken into account as a mitigating factor - no adequate explanation for delay - interests of justice did not require the granting of an extension of time - adequate consideration given to need to impose a custodial sentence - principle of totality properly observed - applicant's age fully taken into account - application for extension of time refused.
Legislation Cited: Crimes Act 1900 - ss 323(a) and 324
Crimes (Sentencing Procedure) Act 1999 - s 44(2)
Cases Cited: Abdul v R [2013] NSWCCA 247
Barton v R [2009] NSWCCA 164
Goebel-McGregor v R [2006] NSWCCA 390
Kentwell v R [2014] HCA 37
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v R [1988] HCA 70; 166 CLR 159
Muldrock v R [2011] HCA 39; 224 CLR 120
Pearce v R [1998] HCA 57; 194 CLR 610
R v Asplund [2010] NSWCCA 316
R v Jarrold [2010] NSWCCA 69
R v Young [1999] NSWCCA 275
R v XX [2009] NSWCCA 115; 195 A Crim R 38
R v Zamagias [2002] NSWCCA 17
Category: Principal judgment
Parties: Kenneth Asplund - Applicant
Regina (Cth) - Respondent Crown
Representation: Counsel:
Mr R Sweet - Applicant
Mr P McGuire - Respondent Crown
Solicitors:
Malcolm Carr - Applicant
Commonwealth Director of Public Prosecutions - Respondent Crown

File Number(s): 2008/196684
Decision under appeal

Date of Decision:

2012-04-13 00:00:00

Before:

Hock DCJ

File Number(s):

2008/196684

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 19 January 2011 the applicant pleaded guilty in the NSW District Court to the following offences:

Count 1 - Doing an act with the intention of influencing a person to be called as a witness to give a false statement intending to procure his own acquittal of a serious indictable offence, contrary to s323(a) and 324 of the Crimes Act 1900 (NSW) (the "influencing a witness offence").

Count 2 - Possessing child pornography contrary to s91H(3) of the Crimes Act 1900 (NSW) (the "child pornography offence").

The conduct relevant to the influencing a witness offence occurred between 20 February 2008 and 20 November 2009. The conduct relevant to the child pornography offence occurred between 1 February 2008 and 21 February 2008. The maximum penalty for the influencing a witness offence is 14 years imprisonment. 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 Asplund v R

Details

AGLC: Asplund v R (Cth) [2014] NSWCCA 237
Case: [2014] NSWCCA 237
Decision Date: 29 October 2014

CaseChat Overview and Summary

The applicant in this case, Asplund, appealed against his sentence on the grounds of an extension of time not being granted for the application. The applicant was already serving a sentence for two serious indictable offences when he was subsequently sentenced for charges of doing an act with the intention of influencing a witness and possessing child pornography. The legal issues the court had to determine were whether the trial judge had failed to consider a non-custodial alternative to a custodial sentence, whether the principle of totality had been properly applied, and whether the applicant's age should have been taken into account as a mitigating factor.

The court found that the trial judge had adequately considered the need to impose a custodial sentence and had properly observed the principle of totality. The applicant's age had also been fully taken into account, and there was no adequate explanation for the delay in lodging the application for an extension of time. The interests of justice did not require the granting of an extension of time. The court was satisfied that the sentence imposed by the trial judge was appropriate and that the applicant's appeal against sentence should be dismissed.

The court refused the applicant's application for an extension of time and dismissed the appeal against sentence. The court ordered that the applicant's appeal against conviction be heard together with the appeal against sentence on a future date. The court also ordered that the applicant's costs of the appeal against sentence be paid by the applicant.

Orders