R v Asplund, Kenneth

[2010] NSWDC 165

CITATION:	R v Asplund, Kenneth [2010] NSWDC 165 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	19 March 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Use carriage service to groom person under 16 years for sexual activity (count 1): Sentence to a fixed term of 9 months to date from the 19th March 2010 and expiring on the 18th December 2010. Use carriage service to groom person under 16 years for sexual activity (count 2): Sentence to 3 years imprisonment from the 19th September 2010 and expiring on the 18th September 2013. In respect of the overall sentence of 3 years and 6 months. I set a non-parole period to expire on the 18th December 2011.
CATCHWORDS:	Criminal Law - Sentence- Commonwealth Offence - Using Carriage Service to Transmit indecent Communictions with intent to procure an under 16 year old to engage in sexual activity with offender (x2) - mobile phone, SMS - Internet Chat Rooms - victim aged 14 - 61 days of cantact - 520 text messages - explicit photographs - grooming type texts messges - 65 year old offender - recently separated from long term partner - good employment ethic - good general health - good character and reputation - no insightinto offending conduct - nil contrition.
LEGISLATION CITED:	Crimes Act 1914 Crimes Act 1900
CASES CITED:	R v Poynder (2007) 171 A. Crim. R. 544 Gladue v The Queen [1999] 1SCR 688 [80]
PARTIES:	Regina Kenneth Asplund
FILE NUMBER(S):	2009/00005365
COUNSEL:	Crown: P McGuire Defence: G Niven

JUDGMENT

1. Kenneth Asplund’s wife of twenty years left him in December 2005. At that time he was not computer- or Internet-savvy. His son, then aged fifteen, introduced him to computers, Internet and Internet chat rooms, believing it would broaden his life and give him interests beyond work, television and loneliness.

2. Kenneth Asplund’s choices of chat rooms led him to one known as The Friendship Page, where he formed what he describes as “Internet friendships” with a number of teenage and adult females. One in particular, Aussie Girl, who identified herself as a fourteen-year-old living in Adelaide, took his fancy. He was prepared to use his resources, money, time, power of personality, Internet, mobile phone, SMS text messaging to bombard her with protestations of his affection for her, and seek from her salacious sexual responses to engage his sexual fantasies. Through his extensive contact with her, he was grooming her for the ultimate fantasy, a real-life sexual encounter with him.

3. Today he is to be held accountable for his criminal conduct towards Aussie Girl during the period 28 October 2006 to 1 January 2007.

4. The existence of Aussie Girl and much of his contact with her is not in dispute, but he vehemently denies any conduct of his was criminal. He was tried before a jury, commencing on 2 November 2009, upon two charges of using a Telstra carriage service (the Internet and a mobile phone service) to transmit indecent communications to Aussie Girl with the intention of making it easier to procure her to engage in, or submit to, sexual activity with himself. Thirteen trial days later, on 20 November 2009, the jury returned with guilty verdicts in respect of both counts.

5. As sentencing judge, it falls to me to resolve a number of competing tensions, as I strive to determine the appropriate sentences for these offences, before this court, committed by this offender, harming this victim in our community (see Gladue v The Queen [1999] 1SCR 688 [80]).

6. My initial task requires an assessment of the objective criminality of the offences before the court. I will also need to have regard to matters personal to him, subjective matters. The starting point for these assessments requires the sentencing judge to make findings of fact from the evidence before the court, relating to both the offence and the offender. My fact-finding task necessarily requires me to find facts consistent with and reflective of the jury’s verdicts. There is no obligation to find facts at either extreme of favourability or unfavourability to the accused.

7. In this case, much of the contested evidence related to the sending of an indecent explicit sexual image. There was a significant contest between the offender on the one hand and his son on the other. It is clear from the jury verdict that not only did the jury reject the accused’s evidence, but it was satisfied beyond reasonable doubt that the son’s account was both honest and accurate.

Facts

8. Count 1 relates to communication via the Internet. It would appear the offender and Aussie Girl, as I will refer to her throughout these remarks, first made contact with each other in The Friendship Chat Room on 29 October 2006. He used the name Homie, she the name Aussie Girl. On 30 October 2006 there were a number of enquiries made about Aussie Girl’s sex life by the offender:

▪ Offender: “Have you had sex? Aussie Girl: No, that’s coming soon. Offender: How soon? Aussie Girl: Dunno.”

▪ Offender: “Be careful, make him wear protection. Aussie Girl: I won’t make him wear protection.”

▪ Offender: “Áre you on the Pill? Aussie Girl: Yes. Offender: Smart girl.”

▪ Offender: “What was the hand job [you gave to one of your friend’s boyfriends] like? Did he enjoy it?”

9. During this conversation on 30 October 2006 they exchanged given names and mobile phone numbers. Aussie Girl told the offender that she could not ring him, but was willing to text him using SMS. On 4 November 2006 there was a further chat in The Friendship Chat Room. There are three conversations relied upon by the Crown.

▪ Offender: “I wish I was in the shower with you.”
“Aussie Girl: [Jamie] is going to send me a pic of his thingie. Offender: Is he hot? Aussie Girl: Nope, but I don’t know about his penis. Offender: Can I do that too? Aussie Girl: You do that then.”

▪ Offender: “Send me a pic of yours (genitalia).”

10. The offender was reckless, being aware this material was probably indecent. He unjustifiably sent the material to Aussie Girl and engaged her in those conversations. The jury, by its verdict, makes clear that it was satisfied beyond reasonable doubt the offender’s communications were aimed at making it easier for him to procure Aussie Girl to engage in sexual activity with himself. It was not a case of seeking instant gratification of his sexual fantasies, but rather he was placing his ideas of personal encounter out there for her consideration, and reducing the sense of foreignness or inappropriateness of the idea.

11. At this stage the sexual activity contemplated by the accused with himself as proved by the Crown is limited to a sexual activity of an indecent nature. There can be no doubt that the accused believed on 29 October 2006 that Aussie Girl was fourteen-years-old. He had said so at a time when he was watching the screen, namely 1:14:57. That is “14 f Australian”. A minute or two before he had directly engaged Aussie Girl in conversation, and was at that time engaged in conversation with a third person when these details came on the screen.

12. The following day there is further discussion about her age. She again gives an age of fourteen. He too was untruthful about his age. She was in fact thirteen. At this time the offender, who was then sixty-one years old, told Aussie Girl he was twenty-seven.

13. The second charge relates to communications transmitted by use of mobile phones. Mobile phone numbers and given names between offender and Aussie Girl, had been exchanged on 30 October 2007- on the second Internet contact. On the following day there were four telephone calls. One minute, two minutes, twenty-seven minutes and nine minutes, each emanating from the offender’s mobile phone. Thereafter there were 44 telephone calls over the 61 day period coming from the offender’s mobile phone and 520 text messages sent from 17 November to 31 December, a period of 44 days, from the offender’s mobile phone.

14. I am satisfied there were at least 120 further texts of multimedia messages sent between 30 October and 16 November, making a total in excess of 640 text and multimedia messages. Included among the multimedia messages he sent, was an explicit sexual photo of his erect penis. That was sent to the complainant on 4 November 2006 that is, within six days of his first contact with her.

15. He would text her asking whether it would “fit” and subsequently claimed in detail its size. He sought to arrange a meeting with Aussie Girl in an Adelaide hotel via mobile service communication for a spa, for sex and for a blow job. He sent an SMS message;

“Have a sleep, long night ahead. I’m going to have one, LOL (laugh out loud) we can have one together if you like.”

Another:

“I would love to be in the shower wid U we could have some fun, wot U think babe?”

There were other messages that while perhaps were not indecent, clearly point to grooming and his intent for sexual activity.

• “Don’t think that’s not true I’ve told you before I never want it [money he had earlier sent] back cause I love you heaps.”
• “I love my girl and I don’t want anything to happen to her.”
• “That's one word I’ll always remember U FA maybeeeeeee you are so cute babe”.
• “If that’s you [Aussie Girl], U are so beautiful Ile, never let u go tell I marry U”.

16. His intentions can also be gleaned from the attention he paid to her. He bombarded her with SMSs and multimedia messages including vague photos of himself. There were calls made to her mobile, sometimes several in a day. While the phone calls were not daily, there were several in a week. The longest was 40 minutes, one was 27 minutes, five were longer than 10 minutes and 12 were longer than five minutes. In 61 days of contact, there was an unrelenting pursuit of her.

17. At his request he received an explicit photo from her of her vagina [ROI Q and A 149 - 157] and of her breast. The evidence does not disclose whether he asked for the photo of her breast. I am satisfied he used the mobile phone service and/or SMS service to communicate with her about these photos. While these photos being sent inward to him do not constitute criminal acts of his, their significance is twofold. Firstly, they give evidence Aussie Girl’s understanding of the relationship between them, extended to a level of sexual intimacy where she could and was expected to exchange photos, of a sexual nature with him, for his sexual arousal and gratification.

18. Secondly, it is a measure of the level of corruption that was achieved by him as a consequence of communications with her via phone and SMS/multimedia contact and to a lesser extent, Internet contact.

19. Thirdly, although not relevant only to him, it is a demonstration of how easily and quickly young children can be overcome by the power of a male adult and a desire to please.

20. A final aspect of his grooming her and inveigling her sense of dependence on him, was his gifting sums of money to her well beyond the original purpose of providing money so she could have credit for her mobile phone. The final sum was something in the order of two and a half thousand dollars in that 61 day period. Again, this conduct is not caught by any criminal charge but is strong circumstantial evidence pointing to his intentions of grooming her for sexual activity.

21. He told police in his record of interview in circumstances where she had discussed running away from her home in Adelaide, that she could come over and stay with him. Aussie Girl in her evidence to the Court said the offender always told me that he loved me and I was a really nice girl, I was beautiful. She said she started to feel close to him and that she liked him a bit more than a friend. On 16 November 2006, she announced that she was getting a new slender phone and would text the offender at 11.30pm. On 25 November 2006, it is clear Aussie Girl is seeking to communicate on the friendship page with the offender who appears to be deliberately spurning her, and then toying with her in a spiteful and hurtful way eg;

“Aussie Girl I have someone that I am chatting with. She’s asked me to marry her.”

This conduct appears manipulative. It forms part of the grooming conduct in that it makes clear the offender expects subservience; that he is the one with the power. The communication is not indecent but it is strong evidence of grooming and an abuse of his power over her.

22. I am satisfied beyond reasonable doubt in the course of his mobile phone and SMS/multimedia communications, his fantasies of sexual activity with Aussie Girl, morphed into an intention to have sexual intercourse with her in one or more of the forms that that term is used in the Crimes Act1900. He agreed in cross-examination that he sent her text messages about meeting in an Adelaide hotel for sexual purposes.

Objective Criminality

23. From the facts as he finds them to be, a sentencing judge is required to assess what is called the objective criminality of an offence as an essential step in assessing the seriousness of the criminal behaviour of an offender. That is done by comparing objectively the criminality exhibited in the instant offence with criminality of offences of a similar kind. It is in this way that the objective criminality of these two offences can be evaluated. The objective criminality has an important, indeed, the most important, impact upon the overall sentencing outcome.

24. Advances in modern methods of communication; in particular the Internet, multi-media messaging, while, on the one hand, bring great benefits to society at large, have given new dimension to old problems. The Crown usefully drew my attention to parliament’s intention in targeting activities of sexual predators who seek to harness the ease, speed, privacy, of modern media communication to target and groom children for the sexual pleasure.

25. In the memorandum to the legislation, the parliamentary drafters observed:

“Unfortunately, adults are increasingly exploiting the anonymity of the internet to forge relationships with children as first steps in luring them for sexual abuse. The bill provides a responsible criminal law response to these abhorrent practices.”

26. The Crown, in his submission, describes the offences as “using an internet [and mobile telephone] carriage service to groom” an under sixteen-year-old. That is stating the offence too broadly. The terms of the charge spell out, in indisputable terms, not only the nature of the anti-social conduct, but the basis for classifying it as abhorrent. The charge focuses upon the transmission by a sixty-one year old male of indecent material, with an intention of making it easier to procure a thirteen year old to engage in sexual activities with himself in circumstances where he can bombard her with indecent suggestion, graphic sexual images, solicit from her the same, all the while remaining anonymous from authorities, hidden from those who love and have the child’s best interests at heart.

27. The criminality here is 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 fantasies with a long-term view of having her submit to sexual activity with him. There can be no denying, by abuse of a power in balance that necessarily exists between adults and children, he formed a destructive relationship with Aussie Girl. The power imbalance is demonstrated by his use of the Internet to persuade her to send him photos of a highly intimate and sexual nature, by his access to resources to shower her with money and bombard her with communications, by his toying and manipulative Internet exchanges earlier referred to.

28. In assessing the objective criminality, regard should be had to:

• Level of persistence in use of carriage service for grooming purposes.
• Nature of indecent material communicated.
• Extent to which the intent to future sexual activity with himself is exposed and developed.
• The nature of the future sexual activity intended.
• Age and power differential between victim and offender.
• Nature of prior relationship between offender and victim.
• The offender’s level of awareness of indecency and deliberateness in communicating it.

29. Against that criteria, it will be seen that the second count presents as the more serious offence. On the material before the court, his use of the Internet was to enable the offender specifically to identify and target Aussie Girl. Thereafter, insofar as Aussie Girl was concerned, far and away, the greater persistence of communication for grooming purposes was done by the mobile phone service and its SMS and multimedia facilities. Once her given name and mobile phone number had been extracted from her, the Internet became a subsidiary means of communication. The offending conduct in both charges constitutes a course of conduct, although not every communication would qualify as containing indecent material, they were communications to further his grooming.

30. Throughout the nine and a half week period, a number of communications did contain indecent material. This appears particularly so in relation to the phone calls and SMS messages. The nature of the indecent material communicated in the first count is best described as sexually suggestive rather than explicit sexual material, but the request for a picture of the complainant’s genitalia, and an offer to send a picture of his, were precursors to transmissions of explicit sexual images via the mobile service. Thus the nature of the indecent transmissions on the mobile service included, not only suggestive indecent material and much more of it than on the internet, but explicit sexual material and again, in her case, on more than one occasion.

31. Much of the suggestive material focuses upon various areas: The shower, the bed, the spa, the hotel room, his home, where sexual activity with himself was contemplated. The transference of personal intimate photos was designed to break down conventional social barriers to an acceptance by her of his penis for her. Clearly, that is his intention with questions such as “Would it fit?” Such a question, while perhaps jokingly asked of a young girl, or asked looking for compliments, prematurely brings that child’s mind to grapple with the concept of her own penetration by the adult male penis long before her physiology, emotional and psychosexual development are sufficiently developed to cope with such notions.

32. The dispatch of money was to round out his personality as a generous benefactor who should be loved for his generosity, and a confusion created or encouraged between that kind of love and the bedroom, spa, shower kinds of love-making. So far as the first charge is concerned, the sexual activity contemplated is confined to unspecified indecent sexual activity at some far off, perhaps, neverland.

33. So far as the second charge is concerned, the sexual activity contemplated moves from an interest in genitalia to the possibility of blow-jobs and sexual encounters consistent with marriage; i.e. sexual intercourse.

34. I have already referred to the age differential as understood by the offender as one of forty-five years. I have sought to demonstrate the abuse of power, not only through manipulating conduct in one internet session, but through having sent to her intimate photos, having requested same from her, his bombarding her with suggestive communications. It is this abuse of his power as he grooms the complainant that must have some corrosive impact upon her, so that she foregoes the normal sexual mores accepted by our society and becomes compliant with unhealthy demands and an interest in prurient suggestions.

35. The power abuse exists in the exercise of will and desire by the mature adult upon a still developing uninitiated, inexperienced, uncertain and immature person and psyche of what he believed was a fourteen year old girl. In that sense then the offending is victim related crime because real harm is done to Aussie Girl in that her psycho sexual development and emotions attached to them are traumatised.

36. As Justice Rothman observed in R v Poynder (2007) 171 A. Crim. R. 544:

“The legislature is seeking to implement society’s abhorrence of the practice of inducing children to engage in, inappropriate sexual behaviour. That process includes not only the direct and physical abuse of children but the “grooming” of children to accept more readily inappropriate sexual activity. Even though a perpetrator of an offence of this kind may have no intention of acting out the fantasy or fantasies in which he/she is indulging, the conduct has a significant deleterious impact upon any child participating in it.”

37. Aussie Girl, in her evidence said she believed the offender was twenty eight. That every time he professed, “love” for her, it made her feel weird. In one Internet chat she threatened suicide or attempting it because of the way she was being spurned. In her evidence she said, “She felt for him more than a friend.” There was no prior relationship between the offender and Aussie Girl, nor was she related to anyone he knew. He did not specifically target her in as much as he did not know of her existence before he came across her on the Friendship page website.

38. As to the offender’s level of awareness of indecent material and level of deliberateness in transmitting it, the Crown has relied on recklessness rather than actual direct malice. An overview of the objective seriousness of the criminality involved in these two charges, yields the inescapable conclusion that a fulltime custodial sentence is called for.

Subjective Matters

39. I turn now to the subjective features I am both entitled and required to do that, not only in my sentencing for these criminal offences, but I am also sentencing this particular offender for them. Each offender coming before the court varies from others who stand or who have stood for sentence. Circumstances personal to this offender may offer to the court some explanation and insight into the commission of these offences by him and some reason why a more or a less sentencing outcome is appropriate.

The Personal Circumstances of the Offender

40. Kenneth Asplund is a sixty five year old divorcee. He was the youngest of eleven siblings, although only three siblings now remain. I have referred to his separation from his wife of twenty years. He has only one son who has become estranged from his father as a result of the father’s reaction to being charged with these offences. I shall return to that matter shortly.

Education, Skills and Employment

41. Asplund completed high school. That was followed by an apprenticeship in fitting and turning, working with his currently employer for twelve years. The Product Engineer of B&D Doors and Openers speaks of him being:

“An honest and reliable subcontractor that consistently goes out of his way to ensure the satisfactory outcome to all duties he has been given.”

He is said to be punctual, well mannered and highly regarded. He has assisted his son in the past with work experience and securing contract work with his employer. Another reference from the Senior Production Co-ordinator of the same firm, points to identification by Asplund of product flaws so that substantial savings accrued to his employers.

General Health

42. So far as one can tell Asplund enjoys good physical health as a sixty five year old.

Mental Health

43. His wife of some twenty years left him suddenly in December 2005 for another man. He became lonely, withdrawn, depressed. He would have felt rejected as a partner and I suspect as a sexual partner. He lost interest in activities including fishing and golf. He lost some seven kilos in weight; his sleep hours were being compromised; he was fatigued and felt worthless most days. Since being charged, and I imagine more so since conviction, his depression that had been abating is said to have resumed again. It appears to be a reactive depression.

44. As a consequence of the charges, he claims to have paid out two hundred and forty six thousand dollars to his solicitors. If that is so, it would have contributed to his depression. My own view is that, that sum is exorbitant and my own view is inquiries ought to be made, if those claims are correct, in appropriate quarters.

45. After the separation his son was his strongest family link. As a consequence of his being charged and making demands upon his son, he has also lost his son. That would also be contributing to his depression.

46. Dr Rowe, a neurophysiologist retained by the defence, after extensive consultations over three visits, expressed a view that his personality style, loss of wife, presence of cognitive deficits due to being afflicted with severe depression, together with the addictive nature of the internet led to his reckless and impulsive participation in the offences. The cognitive weaknesses are said to be, inattentiveness, lapse in concentration, attention to detail, weaknesses in executive function and response inhibition.

47. A record of interview tendered was made on 28 February 2008, at a time before the offender was charged. That is significant because it is closer in time to the offences. There was no suggestion of cognitive weakness in his presentation in the interview, although there was a determination by the offender to put forward a self serving account which permeated the interview. I do not accept that any cognitive deficits or an Internet addiction played any part in the offender’s selection of Aussie Girl and pursuing her through Internet and mobile services. There were plenty of adult females available on the chat line for his attention. It is the selection of a young fourteen year old that is the criminal offence. It is hard to relate Internet addiction to such a choice.

48. In respect of the mobile service offending, clearly an Internet addiction could play no part and as I have said that is the more serious offence. For sixty-five years Asplund’s personality style has not seen him offend against the law and frankly, I am satisfied it played no causative part in his offending on this occasion. But it is significant that he committed these offences relatively proximate to his wife’s sudden departure in circumstances where he was feeling worthless, depressed, lonely and possibly rejected as a sexual partner.

49. Nonetheless, the choice he made was a linkup with and to do the grooming of a female he knew to be fourteen. I am satisfied he was reckless knowing what he was doing was illegal but confident his illegality would not come to light. I am satisfied his depression and loneliness contributed to his becoming besotted with Aussie Girl as a potential sexual playmate, notwithstanding that all he was doing was contrary to her healthy development and was criminal.

Character and Reputation

50. At sixty-five years of age the offender has no prior convictions. For the purpose of the law he is regarded as a person of prior good character. He presents to the court as a sixty-five year old man now isolated from his wife of twenty years and young adult son. He has glowing references from work, not only as to his skills and competence as a worker, but also in terms of his honesty and trustworthiness. At least one, and perhaps two of his referees refer to him having a tight-knit family which I am satisfied points to past history rather than present times. I am satisfied he is a spontaneously generous man, regrettably a quality he used in grooming. But outside that devious use of generosity I am satisfied, both in terms of his money and his time, he has been generous to others.

51. One of his referees was taken particularly by that quality. The Crown argued his good character was of little value. If by that the Crown means his absence of criminal record there is some, but not complete merit in the submission. That is I accept that I should give more muted weight than I otherwise might have. However, unlike those who rely upon good character as a means of gaining an entrée, for example, international drug couriers, members of religion who use their standing in their church, he has not relied upon his good character as a means of gaining access.

52. As to his reputation in the community and to the acts and deeds upon which he has founded, namely, service to the community, that is a matter which I do take into account as a significant mitigatory matter.

53. I should also indicate that I do take into account, before I leave it, that he has maintained good character until the age of sixty-one. Most frequently we have good character in criminal sentencing which only goes up to twenty-five, thirty, thirty-five even. His time with good character is much longer.

Attitude to Offence

54. The offender is in denial. Many of the facts upon which assessment of his criminality are based are not really contested by him. What he does contest however is that they do not amount to wrongdoing. I am satisfied there are aspects of his conduct such as the transmission of the photograph of his penis that were undertaken by him knowingly, yet he denies that activity because to accept he sent the transmission requires a recognition by him of too many unsavoury insights into the criminality of his dealings with Aussie Girl. His determination not to accept responsibility for this graphic transmission caused him to attempt to recruit his son and two of his mates to give a false account of that transmission to police and, if necessary, to give sworn evidence of it.

55. They did give false statements to the police and signed them. However, prior to the trial each disavowed their police statements. Each was cross-examined on the voir dire and at the trial that their recantations was a lie. The jury plainly sided with the son’s account. I would have been stunned had they done otherwise.

56. It was a second occasion when he sought to corrupt youth including his only son to his own ends. He must have known his challenging the honest and courageous act of his son in recounting would cost him, the father, more dearly than anything else. If a son cannot look up to his father with pride and the father knows that, I ask rhetorically if there is any greater cost.

57. Subsequent to the trial he still denies any wrongdoing. I cannot accept that he has no insight although that may be an answer. I am satisfied there is a distinct lack of courage to accept responsibility and that is his major problem.

Personal Deterrence

58. It is hard to imagine that a custodial sentence would not have some deterrent effect upon Asplund. My concern is the consequent of that deterrence. If all it does is make him more careful in future as he goes about grooming others as I suspect it may, it is yet another instance of a kind of “cargo cult” mentality courts have about the power of deterrence to deliver safety to the community.

Co-operation with Law Enforcement Authorities

59. Let it be said there was never any resistance displayed by the offender to police action. He agreed to participate in and persisted in participation through a seven hundred and twenty-five question and answer interview. From the prosecution viewpoint the interview yielded much material it was able to rely upon. While there was a small number of untruths told by him, for example, sending the photo of his penis to Aussie Girl’s mobile phone, by and large his answers were accurate from his perspective. His primary defence was “no wrongdoing” and “I was only trying to offer a fatherly, gentle, reforming influence upon Aussie Girl”. Facts, some unknown to police, were ventilated by him against that background.

60. In the course of the trial exhibit H contained formal admissions which shortened the length of the trial. These were admissions on uncontested material, for example, phone records, that reduced the trial’s length by perhaps a couple of days. I have taken this matter into account in a small way in his favour on sentence.

Imprisonment

61. Is a sentence of last resort. While it is said to have other purposes in sentencing (for example, general deterrence). In this case it is being relied upon by this court as the only adequate means of punishment for Kenneth Asplund for his anti-social and illegal conduct.

Prospects of Rehabilitation

62. The offender says he has stayed off the Internet since he was charged in 2007. He has a long history of no prior convictions and an otherwise good reputation in the community. Those certainly are positive factors in assessing his rehabilitation. Frankly, however, there are numerous negative indicators.

• No acknowledgement of wrongdoing;
• Too much invested in denying wrongdoing;
• Isolated from past support, for example, family and work;
• At age sixty-five there will be serious issues about post release employment;
• Loss of bulk, if not all, of his financial resources;
• No attendance at, or apparent interest in sexual offender courses targeted at recidivism issues.

63. I do not rule out rehabilitation but frankly I am more pessimistic than optimistic.

Probably Effect on Third Parties

64. It is likely his offending conduct and imprisonment may bring an unjustifiable sense of shame and disappointment to his son and former wife. That is not as it should be, but shameful conduct is often thought by those close to an offender to be reflective of them. I do not rule out an unjustifiable sense of guilt welling up in Aussie Girl as she unjustifiably reasons she may have contributed to this criminal conduct. Otherwise it seems to me there will be no real impact any third party.

65. Section 16A(3) of the Crimes Act1914 requires me to have regard to the nature and severity of the conditions that may be imposed upon the offender as a consequence of any sentencing order. I do so now. He is a sixty-five year old man. He is to be convicted and shortly sentenced for a paedophile offence. He is to be taken from this court and housed in a single sexed gaol among men who will be hostile to him because of the nature of his offending conduct. He is nearly thirty years older than the mean age of prisoners. The vast majority in gaol will be younger and more hard nosed than he. His liberty will be monumentally curtailed. He will be told where to go, which gaol will house him, which cell he will occupy, who will occupy a cell with him, when and what he will eat, when he will rise in the morning and when he will sleep at night. His showering and toileting will be in semi-public. He will be housed with those who are almost entirely self focused; many mentally ill and many others volatile in temper and willing to engage in violence. There are standover men who will seek to take advantage of him. Staff decisions are mostly arbitrary and are not infrequently unfair. Should he develop any health needs the level of care will be substantially inferior to those that are available to him in the community. Gaol is not a pretty place and that is where he is going.

66. I have reviewed the checklist set out in 16A(2) and (3) and am satisfied all relevant topics raised by that checklist are dealt with in these remarks. Having regard to all of those matters I am satisfied no sentence other than imprisonment is appropriate.

67. Mr Asplund would you stand up please. Kenneth Asplund I convict you of this offence that you between 28 October 2006 and 1 January 2007 at Menai in the State of New South Wales being a person aged at least eighteen years used a carriage service, namely a Telstra Internet service, to transmit communication which included material that is indecent to CF who was under sixteen years of age and known to you as Aussie Girl with the intention of making it easier to procure the said Aussie Girl to engage in or submit to sexual activity with yourself. For that offence you are sentenced to a fixed term of nine months to commence from today’s date, 19 March 2010, and to expire on 18 December 2010.

68. I also convict you that you between the same dates at Menai being a person aged at least eighteen years used a carriage service, namely a Telstra mobile service to transmit a communication which included material that is indecent to CF who was under the age of sixteen years and was known to you as Aussie Girl with the intention of making it easier to procure the said CF to engage in or submit to sexual activity with yourself. For that offence you are sentenced to imprisonment for three years commencing on 19 September 2010 and expiring on 18 September 2013. In respect of the overall sentence of 3 years and 6 months. I set a non-parole period to expire on the 18th December 2011 (This non-parole period replaces a recognisance order).

69. The total term of imprisonment is one of three years and six months. The total period of imprisonment incarceration is one year and nine months. Would you sit down for a moment.

Is there any further order I need to make or any amendment to the expression of those sentences that I need to make?

CARR: No, not from me your Honour.

MCGUIRE: No, your Honour.

HIS HONOUR: Mr Asplund may be placed in custody.

MCGUIRE: Your Honour just before the accused leaves I’m reminded that your Honour in part of the remarks used I think only the first name of the child victim and I’m asked perhaps out of abundant caution to seek a repetition--

HIS HONOUR: I used Aussie Girl all the way through.

MCGUIRE: I think when giving the quotes of various text messages there were references to the girl’s first name. Could I just seek out of an abundance of caution a repetition of non-publication order for that name?

HIS HONOUR: Yes, if I did mention the name of the complainant there should be no publication of that name.

CARR: Your Honour, my work on this is entirely on Legal Aid and your--

HIS HONOUR: That’s why I said enquiries should be made. He was not entirely honest all the time but that’s what he had ..(four seconds break in recording)..

CARR: ..(recording resumes).. Supreme Court your Honour.

MATTER STOOD IN LIST

..(fault in recording equipment)..

22/02/2011 - Error in nominating the judicial officer - Paragraph(s) Coversheet