CITATION: R v Asplund Asplund v R [2010] NSWCCA 316
FILE NUMBER(S): 2009/5365
HEARING DATE(S): 24 September 2010
JUDGMENT DATE: 16 December 2010
PARTIES: The Crown (appellant) Kenneth Asplund (applicant/respondent)
JUDGMENT OF: McClellan CJatCL Latham J Price J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2009/11/0237
LOWER COURT JUDICIAL OFFICER: Nicholson DCJ
LOWER COURT DATE OF DECISION: 19 March 2010
COUNSEL: P McGuire (Crown/appellant) R Sweet (respondent)
SOLICITORS: Commonwealth Director of Public Prosecutions (Crown/appellant) Leader Law Group (respondent)
CATCHWORDS: CRIMINAL LAW whether the sentence was manifestly inadequate whether the sentence imposed adequately reflected the criminality and nature of the offending where Crown allege error in sentencing judge failing to fix a non-parole period within appropriate range consideration of deterrence in case CRIMINAL LAW offender leave to appeal against sentence whether the sentencing judge erred in concluding that the offender's character was of little value in the sentencing exercise whether the sentencing judge erred in failing to state that the elements of general and specific deterrence should be given less weight where the offender is suffering from a mental illness
DECISION: 1. The respondent’s application for leave to appeal is granted but the appeal dismissed. 2. The Crown appeal is upheld and the sentences in the District Court quashed. In lieu thereof in relation to count 1 the respondent is sentenced to a term of imprisonment of 3 years commencing on 19 March 2010 and expiring on 18 March 2013. 3. In respect of count 2 the respondent is sentenced to a term of 4 years imprisonment commencing on 19 March 2013 and expiring on 18 March 2017. 4. Fix a non-parole period of 4 years commencing on 19 March 2010 and expiring on 18 March 2014 when the respondent…
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.
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AGLC
R v Asplund [2010] NSWCCA 316
Case
[2010] NSWCCA 316
Decision Date
CaseChat Overview and Summary
The matter of R v Asplund involved an appeal against sentence. The respondent had been convicted of two counts related to using internet services and a mobile telephone to procure a complainant to engage in sexual activity. The Crown argued that the sentence imposed was manifestly inadequate, particularly because it failed to set a non-parole period within the appropriate range and did not adequately reflect the criminality and nature of the offending. The key issues before the court were whether the sentence imposed was manifestly inadequate, whether the sentencing judge erred in concluding that the offender's character was of little value in the sentencing exercise, and whether the sentencing judge erred in failing to state that the elements of general and specific deterrence should be given less weight given the offender's mental illness.
The court found that the respondent's conduct was highly criminal, involving a persistent and determined history of communications designed to procure the complainant. The offences were aggravated by the respondent's forwarding of money to the complainant and his sending of graphic sexual images. The sentencing judge appropriately identified the high level of criminality and the abuse of power in the grooming process. The court concluded that the sentence imposed was not manifestly inadequate, as it reflected the serious nature of the offending and considered the appropriate factors. The sentencing judge's observations about the respondent's conduct were deemed appropriate and highlighted the severe impact on the complainant's psycho-sexual development and emotions. The appeal against sentence was rejected.
The court rejected the argument that the sentencing judge erred in concluding that the offender's character was of little value in the sentencing exercise. The respondent's lack of responsibility and refusal to accept culpability for his actions supported this conclusion. Furthermore, the court did not find it necessary to address the argument regarding the weight given to deterrence in light of the offender's mental illness, as the sentence imposed was considered adequate.
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
CLELLAN CJ
I reject ground 4 of the applicant’s appeal.Conclusion It will be apparent that I have concluded that the applicant’s application for leave to appeal must fail. I have also concluded that ground 2 of the appeal by the Director of Public Prosecutions should be rejected. That leaves for consideration the submission on behalf of the Crown that the sentence imposed was manifestly inadequate. I have previously recounted the circumstances of the offences. The respondent pleaded not guilty. He was convicted of 2 counts, one concerning the use of the internet service and the other a mobile telephone. The evidence reveals a determined and continuous history of communications designed to procure the complainant and have her engage in sexual activity. The offences were made more serious by the respondent forwarding money to the complainant. Not only did he communicate orally but he sent images of his penis and encouraged the complainant to send him images of her when she was naked. The circumstances of the respondent’s offending involved a high level of criminality. His offending conduct over a significant period of time place his offending in the more serious category of offences. In his remarks on sentence the sentencing judge made the following observations which can be expressed in summary form:“(a)referred to the respondent’s conduct as bombardment of CF with ‘indecent suggestion, graphic sexual images, solicit from her the same, all the while remaining anonymous from the authorities, hidden from those who love and have the child’s best interests at heart’;(b)noted that the criminality in this conduct was ‘the interference with the child’s privacy, her right to a healthy psycho-sexual development, by requiring her to feed into and gratify his sexual titillation and fantasises with a long-term view of having her submit to sexual activity with him’;(c)referred to there being an abuse of power and the formulation of destructive relationship;(d)held that the respondent showered CF with money, bombarded her with communications and toyed and manipulated her in the internet exchanges;(e)held that the transference of intimate person photographs was ‘designed to break down conventional social barriers to an acceptance by her of his penis for her’;(f)held that the abuse of power in grooming CF must have had ‘some corrosive impact on her, so that she forgoes the normal sexual mores accepted by our society and becomes compliant with unhealthy demands and an interest in prurient suggestion;(g)held that CF was a victim in the sense that her ‘psycho sexual development and emotions attached to them [were] traumatised’;” To my mind each of these observations was appropriate. Apart from the high level of criminality which these observations indicate the respondent pleaded not guilty and has not given any indication that he accepts responsibility for his offending. Indeed he sought to deflect the responsibility for the offences to his son.