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Court of Criminal Appeal 16 December 2010

R v Asplund Asplund v R

[2010] NSWCCA 316

Also reported as (2010) 216 A Crim R 48
Sexual offences
CRIMINAL LAW PAROLE PERIOD WITHIN APPROPRIATE RANGE CONSIDERATION OF DETERRENCE IN CASE CRIMINAL LAW

Citation: R v Asplund; Asplund v R [2010] NSWCCA 316
Court: NSW Court of Criminal Appeal
Date: 16 December 2010
Judges: McClellan CJ at CL, Latham J, Price J

Background

The respondent, a man in his sixties at the time of the offending, was convicted after trial of two offences under s 474.27(1) of the Criminal Code 1995 (Cth). Both counts involved using carriage services (internet and mobile phone) to transmit indecent material to a child under 16, with the intention of making it easier to procure her for sexual activity. The offending occurred over a roughly two-month period in late 2006.

The victim was 13 years old at the time. The respondent had initially believed she was 14, having encountered her in an online chat room. Over the course of the offending period, he exchanged hundreds of text and multimedia messages with her, sent an explicit photograph of himself, and sought to arrange a physical meeting for sexual activity.

In the District Court, the respondent received an overall sentence of 3 years and 6 months imprisonment with a non-parole period of 1 year and 9 months. Both the Crown and the respondent sought to appeal the sentence on different grounds.

  • Whether the sentences imposed by the District Court were manifestly inadequate, failing to reflect the criminality of the offending and the need for general deterrence
  • Whether the sentencing judge erred in fixing a non-parole period outside the appropriate range
  • Whether the sentencing judge erred in treating the respondent's good character as being of little weight in the sentencing exercise
  • Whether the sentencing judge erred in failing to explicitly reduce the weight given to general and specific deterrence on account of the respondent's mental illness

Decision

The Court of Criminal Appeal upheld the Crown appeal, finding that the original sentences were manifestly inadequate. The court noted the high level of criminality involved, including the sustained nature of the conduct, the respondent's deliberate deception about his age, the volume of communications, the sending of an explicit image, and the attempt to arrange a physical meeting for sexual purposes.

The court also took into account that the respondent had pleaded not guilty and had not demonstrated any acceptance of responsibility for his offending. He had instead sought to deflect blame onto his son. These factors weighed against any mitigation.

On general deterrence, the court emphasised that offences of this nature are difficult to detect, cause serious harm to young people, and require courts to impose sentences of appropriate severity. The court noted that Parliament had specifically created these offences to protect children from those who would exploit electronic means to groom them.

The respondent's own appeal was dismissed. The Court of Criminal Appeal found no error in the sentencing judge's treatment of character evidence or in the approach to deterrence in the context of any mental illness.

Orders Made

  • The respondent's application for leave to appeal against sentence was granted, but the appeal was dismissed.
  • The Crown appeal was upheld and the District Court sentences were quashed.
  • Count 1: The respondent was resentenced to 3 years imprisonment, commencing 19 March 2010 and expiring 18 March 2013.
  • Count 2: The respondent was resentenced to 4 years imprisonment, commencing 19 March 2013 and expiring 18 March 2017.
  • A non-parole period of 4 years was fixed, commencing 19 March 2010 and expiring 18 March 2014.

Key Takeaways

  • The Court of Criminal Appeal confirmed that offences involving the use of carriage services to groom children attract significant sentences, with general deterrence carrying particular weight given how difficult such offending is to detect.
  • A sustained pattern of conduct, including hundreds of messages over many weeks, the transmission of explicit material, and attempts to arrange a physical meeting, will be treated as highly aggravating circumstances.
  • Absence of remorse and failure to accept responsibility for offending are relevant sentencing considerations, particularly where the offender attempts to attribute blame to another person.
  • In dismissing the respondent's appeal, the Court of Criminal Appeal found no error in the sentencing judge's conclusions on character evidence or the application of deterrence principles in the context of a mentally ill offender.
  • Under s 68A of the Crimes (Appeal and Review) Act 2001, as affirmed in DPP (Cth) v De La Rosa, the double jeopardy principle does not apply on Crown appeals against sentences imposed for Commonwealth offences.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 474.27(1)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- R v Verdins [2007] VSCA 102
- Wong v The Queen (2001) 207 CLR 584
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- R v Berner (1998) 102 A Crim R 44
- Ali v R (2010) NSWCCA 35
- Tector v R [2008] NSWCCA 151
- Leach v R [2008] NSWCCA 73
- R v Poynder (2007) 171 A Crim R 544
- Western Australia v Collier (2007) 178 A Crim R 310
- R v Gajjar [2008] VSCA 268; 192 A Crim R 76
- R v Kennedy [2000] NSWCCA 527
- Scognamiglio (1991) 56 A Crim R 81
- R v Sitt (1998) 102 A Crim R 428
- R v Letteri (unreported, NSWCCA)
- R v Shepheard [2008] ACTSC 116
- R v O'Shana (ACTSC, unreported, 1 August 2008)
- R v Bozinovski (Sydney District Court, unreported, 4 June 2009)
- R v Rampley (Sydney District Court, unreported, 2 October 2009)
- R v Singh (Penrith District Court, unreported, 19 May 2009)