Director of Public Prosecutions v Asplin
[2014] VCC 1023
•26 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDAN ASPLIN |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 26 June 2014 |
| CASE MAY BE CITED AS: | DPP v Asplin |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1023 |
REASONS FOR SENTENCE
---Subject: Sexual penetration under 16; fail to comply
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 3 years Community Correction Order---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P Jones | |
| For the Offender | Mr R Kelly |
HIS HONOUR:
1Brandan Asplin, you have pleaded guilty to an indictment containing three charges. The first charge is that between 5 May 2011 and 3 August 2011, being a registered sex offender, you failed to comply with your reporting obligations without a reasonable excuse. Charges 2 and 3 are each charges of sexual penetration of a child under 16 years. The maximum sentence for failing to comply with your reporting obligations, in breach of s.46, sub-s.(1) of the Sex Offenders Registration Act, is five years' imprisonment. The maximum sentence for sexual penetration of a child under 16 years, where the complainant in question is 15 years' of age, as in this case, is 10 years' imprisonment. As you can see from the maximum sentences provided for by the Parliament, the Parliament regards the kind of offending that you have engaged in as being very serious.
2The circumstances of your offending are set out in a summary of prosecution opening dated 19 March 2014, which I marked as Exhibit A. Your counsel, Mr Kelly, accepted that the summary was accurate and formed a proper basis upon which I can proceed to pass sentence. Your conviction arises because you have pleaded guilty to each of the charges. By pleading guilty to the charges you have saved the time and cost of a trial, but importantly you have saved the need to afford the complainant to give evidence in this case and be cross-examined by your counsel. Because you have pleaded guilty you are entitled, in my view, to a lesser sentence than you would have received had you proceeded to trial and you fell for sentence after conviction by a jury.
3The summary of prosecution opening does not need to be repeated here, except in summary form. You were introduced to the complainant, who was then aged 15 years, via the internet. At the time you were 18 years' of age. She told you via the internet that she was 17. Over a period of time you corresponded with each other, but then met, and after you met the complainant told you that she was 15 years' of age.
4The offending in Charges 2 and 3 arises from circumstances that occurred on 16 July 2011, when you met the complainant, pre-arranged, at the Lord's Raceway in Bendigo. You had sexual intercourse with her on at least three occasions that evening. It is all described in the summary of prosecution opening and it is not necessary that I repeat it here.
5The first charge arises because you were convicted in the Children's Court at Ararat on 10 May 2010 of the crimes of rape and incest, amongst other matters. You were sentenced to a term of imprisonment to be served in a Youth Justice Centre, over a period of 18 months, and as a consequence of that order and by operation of the Sex Offenders Registration Act 2004 you became a registrable offender.
6As the summary points out, you were interviewed by the police in relation to your being a registrable offender and you were told of your obligations. Amongst the many obligations required of registrable offenders in the Sex Offenders Registration Act 2004, you were required to report any contact which you had with a child under the age of 16 years to the police. You failed to do so. In short you failed to advise the police of the relationship, both online and physically, that had developed between yourself and the complainant, and that results in Charge 1.
7The offending here occurred between May and August in Charge 1 of 2011, and the two charges of sexual penetration, Charges 2 and 3, occurred on 16 July 2011. These matters were brought to the attention of police on or about 12 August 2011 but you were not interviewed until more than two years later, on 18 September 2013. As I said during the course of the plea, that is disgraceful. You should have been interviewed and charged with these matters within a short time of the complainant making her complaint.
8The fact that that did not occur has placed you in a difficult position, to your disadvantage. Had you been interviewed and charged within a reasonable time of these matters being brought to the attention of the police, you would have been dealt with in this court as a young offender, within the meaning of that expression in the Sentencing Act 1991. You are now aged 21 and in your 22nd year you are no longer a young offender. The delay in bringing these matters before the court, and the fact that it was not caused by you, and the fact that you have gone about putting your life in order, is a significant factor in the sentencing of you.
9In the three years, or nearly three years, that have now passed since your offending, you have not re-offended, and I was told and accept that there are no matters pending against you. All that is in your favour.
10When you pleaded guilty you admitted your prior criminal history, which is, to say the least, less than impressive. As well as the matters that I referred to earlier, in 2010, you have prior convictions for other matters relating to criminal damage and arson, but all dealt with in the Children's Court. The prior matters and these matters are the offences of a sexual nature.
11Mr Kelly, who appeared as counsel on your behalf, in a helpful written outline of his submissions, asked me to take in to account a number of matters and in passing sentence I have done so. When these offences occurred you were aged 18, as I have said, and the complainant was 15. When you were interviewed by the police you admitted the matters that were put to you and you were cooperative. You were arrested and charged on 18 September 2013. You were bailed, there was a committal mention on 11 December 2013, and you immediately indicated your intention to plead guilty. I treat you as having pleaded guilty or indicated that you would plead guilty at the earliest possible opportunity.
12Mr Kelly attended and relied upon a report from a psychologist, Ms Pamela Matthews. I marked that as Exhibit 2 on the plea. The report is dated 22 June 2013. It indicates that you have insight to your offending. She has assessed your intellectual abilities and she described you as having mild features of autism spectrum disorder. You have borderline to low average cognitive deficits. You present with major developmental disorders and you have a past history of suicidal ideation.
13On the question of your prospects for rehabilitation, she thought that they were reasonably good, although your cooperation with past treatment and your general indication by pleading guilty here means that there is some hope that you can turn around your ways. She described your risk of future offending as moderate. Although you no longer have any contact with your mother or other members of the family, save for your father, you do have your father's support and he was in court to support you today. The court can therefore have some comfort that there is someone in your life who may be able to lead you in the right direction.
14Although not a young offender, you are, and can quite properly be described as a youthful offender. More importantly, in the time that has elapsed between the commission of these offences and now you have attempted, so far as possible, to put your life in order and are undergoing some training which may lead to you being employed in the future in the warehouse industry.
15I have read the report of Pamela Matthews. There is, I think, a number of factors here that trigger application of Verdins principles. I think those principles have application here, so far as what was going on in your mind at the time of the offending, and also influence the kind of disposition that I should impose. Your counsel, Mr Kelly, urged that I impose a Community Corrections Order and the learned prosecutor, Mr Jones, on instructions told me that such a disposition was within the range. In all the circumstances, especially having regard to the delay, I have decided that a Community Corrections Order is the appropriate disposition and I have had you assessed accordingly, and I have received a report from the Corrections officer, one Stephanie Green, who has advised the court that you are suitable to enter in to a Community Corrections Order.
16Accordingly, on each of the charges the sentence of the court will be that you are to be placed on a Community Corrections Order which is to commence this day and end on 25 June 2017, so it is for a period of three years. You must attend Bendigo Community Correctional Services by 4 pm next Monday 30 June.
17There are a number of conditions. As to unpaid community work, you must perform 200 hours of unpaid community work over the period of three years, as directed by the regional manager. Do you understand that, Mr Asplin?
18OFFENDER: Yes Your Honour.
19HIS HONOUR: All the hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. You must be under the supervision of the Community Corrections Officer for a period of three years, do you understand that?
20OFFENDER: Yes Your Honour.
21HIS HONOUR: You must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological, and psychiatric, in a hospital or residential facility as directed by the regional manager. Do you understand that?
22OFFENDER: Yes Your Honour.
23HIS HONOUR: You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager. Do you understand that?
24OFFENDER: Yes Your Honour.
25HIS HONOUR: You must undergo programs consistent with the purpose of treatment and rehabilitation which may include but is not limited to employment, educational, cultural and personal development programs as directed by the regional manager, do you understand that?
26OFFENDER: Yes Your Honour.
27HIS HONOUR: The conditions include that you are to participate in programs to reduce re-offending and the sex offenders program. Do you understand that?
28OFFENDER: Yes Your Honour.
29HIS HONOUR: Now the prosecution seeks the making of a forensic sample order pursuant to s.464ZF, sub-s.(2) of the Crimes Act 1958, and that order was not opposed by your counsel. I propose to make that order in view of your plea of guilty to the charges, the seriousness of the charges, the fact that they were not opposed, and it being in the public interest. So I have signed that order, do you know that? Do you appreciate that?
30OFFENDER: Yes Your Honour.
31HIS HONOUR: What that means is that, having signed the order, a member of the police force can use reasonable force to take a forensic sample from your body, which is a scraping from the inside of your mouth. Do you understand that?
32OFFENDER: Yes Your Honour.
33HIS HONOUR: Very well. Because of your prior convictions and your conviction for the offences in Counts 2 and 3, even though they occurred within the same 24 hour period you now have prior convictions for three Class 1 offences under the Sex Offenders Registration Act. That means that you are a registrable offender for life. Do you understand that?
34OFFENDER: Yes Your Honour.
35HIS HONOUR: You will have to report to the police about that. If you do not understand what that means I suggest that you speak to Mr Kelly, because you do not want to find yourself in breach of that Act again, because if you do that will breach the Community Corrections Order and if you do that you will come back before me and I will deal with you, do you understand that?
36OFFENDER: Yes Your Honour.
37HIS HONOUR: If you commit any offence over the next three years punishable by a term of imprisonment you will breach the Community Corrections Order and you will come back before me to be re-sentenced, do you understand that?
38OFFENDER: Yes Your Honour.
39HIS HONOUR: Clearly understand it?
40OFFENDER: Yes.
41HIS HONOUR: Are you sure?
42OFFENDER: Yes.
43HIS HONOUR: Very well. I have signed those orders.
44MR JONES: Six triple A?
45HIS HONOUR: I do not need to do s.6AAA.
46MR JONES: No.
47HIS HONOUR: Because I have not imposed a term of imprisonment.
48MR JONES: There was one other matter and it is only for the record, Your Honour, but as I understand it Your Honour said that in any other case of sexual penetration of a child between the ages of 12 and 16, Level 5 imprisonment, Your Honour said 15 years. Level 5 is ten years, but I know it was only ‑ ‑ ‑
49HIS HONOUR: I thought I looked at this this morning, s.45?
50MR JONES: Yes Your Honour. It is 15 years if it is a person in some way in loci parentis or something of that nature. I thought Your Honour meant to say ten but said 15.
51HIS HONOUR: No, I did say 15, is it not s.45(2)(b)? But no, there is no authority there, is there?
52MR JONES: No. We are in the c) any other case.
53HIS HONOUR: I see.
54MR JONES: I know it will not affect the sentence.
55HIS HONOUR: No, well I do not want to provide any space between bat and ball for the Court of Appeal.
56MR JONES: No.
57HIS HONOUR: So I correct the sentence, the maximum sentence for Charges 2 and 3 of sexual penetration of a child between the ages of 12 and 16, pursuant to s.45(2)(c), is ten years' imprisonment. Mr Kelly, could I thank you for the level of preparation you put in to this matter?
58MR KELLY: Thank you Your Honour.
59HIS HONOUR: Most helpful, thank you. Adjourn the court until 9.30.
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