Director of Public Prosecutions v Asplin

[2017] VCC 206

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

CR 13-02395

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANDON ASPLIN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	7 March 2017
DATE OF SENTENCE:	7 March 2017
CASE MAY BE CITED AS:	DPP v Asplin
MEDIUM NEUTRAL CITATION:	[2017] VCC 206

REASONS FOR SENTENCE
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Subject:  Contravention
Sentence:  13 months' imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson
The Offender was not represented

Pages 1 - 6

 

 

HIS HONOUR:

1Brandon James Asplin, Before the court for disposition is a summons dated 4^th October 2016 issued by an officer of Community Correctional Services ("the informant") pursuant to s. 83AD(1) of the Sentencing Act 1991 (“the Act”) against Brandon Asplin (“the accused”). The allegation is that without reasonable excuse the accused has failed to comply with conditions of a Community Corrections Order made by me in the County Court at Bendigo on 26^th June 2014 (“the CCO”).

2There is no issue that you have failed to comply with the CCO without reasonable excuse.  There is a history of contravention and failure by you to comply with the CCO.

3The CCO made by me had a number of conditions as follows:

4It was to last a period of three years;

5You were to be supervised by a Community Corrections Officer;

6You were to undergo treatment and rehabilitation for mental health;

7You were required to participate in programs and courses to prevent re-offending including the sex offenders program;

8You were to perform 200 hours of community work.

9This is only a summary of the conditions which are set out in full in the CCO.  The conditions were designed to assist you to be rehabilitated and to protect the community to ensure that you did not re-offend.

10Within one month of my having made the CCO you breached it.

11On the 17 March 2015 the informant issued a breach summons.  It alleged, and it was not disputed, that you had failed to attend for supervision as required on 11 occasions between 25 July 2014 and 25 February 2015. 

12That summons also alleged, and it was not disputed, that you had failed to perform unpaid community work as required on 14 occasions between
22 July 2014 and 29 January 2015.  It also alleged that you had failed to attend for mental health assessment and for treatment.

13On 11 May 2015 I adjourned the first breach summons to 10 June.  At your request on 10 June I adjourned the summons until 17 June 2015, but on that date you did not appear and I issued a warrant for your arrest.  That warrant was executed and you were bailed to appear on 22 July 2015.  Again you failed to appear in breach of your bail.  A further warrant was issued and you were arrested  on 12 August 2015 and remanded in custody for mention on
13 August 2015.

14A contravention hearing eventually took place on 31 August 2015.  At that time the informant submitted that I should cancel the CCO.  I found the charge of breach proven and varied the CCO to provide for a condition that you continue to attend the Salvation Army Positive Lifestyle Program.

15Following the appearance at which you were represented by counsel on
31 August 2015 you reported for supervision on 27 October 2015 but then you ceased your engagement with Corrections.  Corrections officers made every conceivable attempt to contact you by telephone, text message, mail and even went to your home address but you made it impossible for them to contact you.

16All of this within two months of your counsel having pleaded with me on your behalf for patience and not to cancel the CCO as Corrections had sought.

17On 29 December 2015 you made contact with Corrections and an appointment was made for you to discuss your re-engagement with the CCO.  You failed to attend.

18On 18 January 2016 you again made contact by telephone and you were told that Corrections would permit you to re-engage with the CCO but contravention proceedings would remain on foot.  Once told that you made communication impossible.  You eventually attended Corrections on three occasions in February 2016, but although you said you intended to re-engage with the CCO you failed to do so.

19The informant issued a further breach summons which was heard by me on
26 May 2016.  Again it was not in issue that you had breached every condition in the CCO.  Corrections again asked me to cancel the CCO and re-sentence you.  I declined to do so.  I urged Corrections officers to be patient with you and to go out of their way to assist you to engage fully with them.  At that time I again found the breaches alleged to have been proven and I otherwise confirmed the CCO.

20But again you breached the CCO and did not engage with Corrections, resulting in the breach summons now before me being issued on 4 October 2016.  A contravention hearing commenced on 18 November 2016.  Again Corrections asked me to cancel the CCO.  To give you one last chance I adjourned the summons to my circuit commencing on 7 February 2016.  I told you that you must comply with every condition of the CCO between 18 November 2016 and 7 February 2017.

21On 18 November 2016 after the court hearing you attended upon Corrections and an appointment was made for your supervision on 24 November 2016.  You failed to attend that appointment and again all attempts to contact you failed.

22On the 7 February 2017 you failed to appear in my court and I issued a warrant for your arrest which was executed and you appeared before me on
23 February 2017, at which time I remanded you in custody.  You have admitted all of the breaches alleged and the allegation in the summons dated
4 October 2016 are proven.  I indicated that I would cancel the CCO and will do so.  You fall to be re-sentenced on the original charges for which I made the CCO on 26 June 2014.

23In re-sentencing you I am required to have regard to the extent to which you have complied with the CCO.  You have completed 70 hours and 15 minutes of the required 200 hour unpaid community work.  Due to your continued disengagement with Corrections you have had very little supervision.  All attempts to have you establish programs to assist with aiding your mental health have failed.  You have not taken part in the sex offenders program.  You have not completed the Salvation Army positive lifestyle program.

24In summary, despite every effort being made by Corrections and the Court to assist you, you have stubbornly resisted help.  You have repeatedly thumbed your nose at my orders and the time has come to again deal with you for the original offences that I sentenced you for.

25The first charge was a charge of being a registered sex offender you failed to comply with reporting obligations.  Charges 2 and 3 were each charges of sexual penetration of a child under the age of 16 years.  The circumstances of those offences have been set out in some detail in my sentencing remarks of 26 June 2014.  These re-sentencing remarks need to be read in conjunction with what I there said.

26You were born on 17 April 1993 and are approaching 24 years of age.  You are still young and when these offences were committed you were a young offender, although delay prevented the charges being dealt with elsewhere.  Your victim was aged 15.  You have borderline to low average intelligence and you exhibit features a mild autism disorder.

27You have prior convictions in the Children’s Court for rape, incest and violence and dishonesty.  You have many prior convictions for failing to comply with reporting obligations.   Your breaches of the CCO are serious and deserving of a term of imprisonment.  The only redeeming feature of your failure to comply is that you have not re-offended since the time that I sentenced you on
26 June 2014.

28The offences in the charges occurred after 1 May 2011. The offences in charge 2 & 3 are “serious offences” within the definition of that term in the Act. Because you offended after 1 May 2011 I cannot suspend any sentence imposed on you.

29Because of your poor record of compliance with various orders made I would not consider a suspended sentence in any event because I am not satisfied you would comply with it.

30In the circumstances I find the summons proved and the CCO is cancelled.  On the breach summons you are convicted and sentenced to a term of imprisonment of two months.

31On Charge 1, failing to comply with reporting obligations you are convicted and sentenced to seven days imprisonment.

32On each of Charges  2 and 3 of sexual penetration of a child under the age of 16 years, you are convicted and sentenced to a term of imprisonment of
12 months.

33I direct that one month of the sentence I have imposed upon you on the breach summons cumulate upon the sentence I have imposed upon you on Charge 3, making a total effective sentence of 13 months' imprisonment.

34For the purposes of s 6AAA of the Sentencing Act I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of three years and I would have fixed a non-parole period of two years.

35I recommend that whilst in prison you undergo the Sex Offenders Program.

36I declare there has been 31 days pre-sentence detention and that 31 days be reckoned as having been already served under the sentences passed this day, be entered into the records of the court and be deducted administratively.

37MR GIBSON:  Can I just clarify, Your Honour?  Charge 1, seven days, Charge 2, 12 months, Charge 3, 12 months?

38HIS HONOUR:  Correct.

39MR GIBSON:  Yes, thank you.

40OFFENDER:  How long is that in total, Your Honour?

41HIS HONOUR:  I’m sorry, Mr Asplin?

42OFFENDER:  How long is that in total?

43HIS HONOUR:  It's a total of 13 months.  You have served one month.  You have got about 12 months of the sentence remaining.

44OFFENDER:  Does that take into consideration that I have not offended at all since this sentence?

45HIS HONOUR:  Yes, I have taken that into account.

46OFFENDER:  What about the fact that I did nearly two years of my corrections order?

47HIS HONOUR:  Mr Asplin, I am not going to debate it with you.  That is my sentence.  Please remove Mr Asplin, thank you?

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