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 17Category: Principal judgment Parties: Kenneth Asplund - Applicant
Regina (Cth) - Respondent CrownRepresentation: 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…
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- AGLC
- Asplund v R (Cth) [2014] NSWCCA 237
- Case
- [2014] NSWCCA 237
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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
Established by: HOEBEN CJ
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