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District Court 19 March 2010

R v Asplund, Kenneth

[2010] NSWDC 165

Sexual offences
CRIMINAL LAW SENTENCE COMMONWEALTH OFFENCE MOBILE PHONE, SMS INTERNET CHAT ROOMS VICTIM AGED 14

Citation: R v Asplund, Kenneth [2010] NSWDC 165
Court: District Court of New South Wales
Date: 19 March 2010
Judge(s): Nicholson SC DCJ

Background

The offender, a 65-year-old man from Menai, was convicted by jury on two counts of using a carriage service to transmit indecent communications to a person under 16 years of age, with the intention of making it easier to procure that person to engage in sexual activity with himself. The victim, known throughout proceedings as "Aussie Girl," had identified herself as a 14-year-old girl in Adelaide (she was in fact 13). Contact began in October 2006 through an internet chat room called The Friendship Page.

Over a 61-day period, the offender sent more than 640 text and multimedia messages from his mobile phone. These included an explicit photograph of his genitalia sent within six days of first contact, repeated attempts to arrange an in-person sexual encounter in an Adelaide hotel, and sustained grooming-type messages designed to normalise sexual conduct between himself and the child.

The offender had separated from his long-term partner shortly before the offending began. His son had introduced him to computers and internet chat rooms. He contested the charges at trial, denying any criminal conduct, but was convicted on both counts. He showed no contrition and, in the court's assessment, no genuine insight into the nature or impact of his offending.

  • What were the appropriate sentences for two counts of using a carriage service to transmit indecent communications to a child under 16, with intent to procure sexual activity?
  • How should the objective seriousness of the offending be assessed, including the nature, volume, and duration of the communications?
  • What weight should be given to the offender's subjective circumstances, including his age, good character, employment history, and the absence of prior convictions?
  • How should the sentences be structured, including the application of totality principles and the setting of a non-parole period?

Decision

The court assessed the objective criminality of the offending as substantial. The conduct was sustained and calculated over 61 days, involving more than 640 messages, explicit material sent to a child the offender believed to be 14, and concrete attempts to arrange an in-person sexual encounter. The court found the offending was not impulsive gratification but a deliberate process of grooming designed to reduce the victim's resistance to the idea of sexual activity.

The court acknowledged several subjective matters in the offender's favour: his age (65), his good employment record, his general health, his prior good character, and the circumstances of his social isolation following separation. His son's introduction of him to the internet was noted as relevant context. These factors, however, did not displace the seriousness of the offending.

The court placed significant weight on the offender's complete absence of contrition and lack of insight. He had contested the charges and, even after conviction, showed no acceptance of the wrongfulness of his conduct. His misrepresentation of his own age to the victim (claiming to be 27 when he was 61) further undermined any mitigating narrative.

The two sentences were structured to be partly concurrent and partly cumulative, reflecting totality principles. Count 1 (internet communications) attracted a fixed term of 9 months. Count 2 (mobile phone communications) attracted 3 years, commencing partway through the first sentence. The overall term was 3 years and 6 months, with a non-parole period set to expire on 18 December 2011, producing an effective minimum period of imprisonment of 1 year and 9 months.

Orders Made

  • Count 1 (use of carriage service via internet): Fixed term of 9 months imprisonment, commencing 19 March 2010 and expiring 18 December 2010.
  • Count 2 (use of carriage service via mobile phone): 3 years imprisonment, commencing 19 September 2010 and expiring 18 September 2013.
  • Non-parole period: Set to expire 18 December 2011, applying to the aggregate sentence of 3 years and 6 months.
  • Non-publication order: Made in respect of the complainant's name.

Key Takeaways

  • The District Court treated the sustained, calculated nature of grooming communications, including their volume (over 640 messages), their explicit content, and the offender's active attempts to arrange physical contact, as significantly aggravating the objective seriousness of the offending.
  • Good character and the absence of prior convictions carry reduced weight in sentencing where the offending involves deliberate and repeated predatory conduct toward a child, particularly where the offender shows no contrition and no insight into the harm caused.
  • A complete absence of remorse and a failure to acknowledge wrongdoing after conviction are relevant sentencing considerations that may limit the mitigation otherwise available from subjective circumstances.
  • Where multiple charges arise from related but distinct modes of offending (here, internet chat versus SMS), the totality principle requires the court to consider the overall sentence and structure cumulative terms so that the total period is proportionate to the overall criminality.
  • Misrepresentation of age by the offender to the victim does not reduce culpability; the court proceeded on the basis of what the offender believed about the victim's age, not the victim's actual age.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth)
- Crimes Act 1900 (NSW)

Cases:
- R v Poynder (2007) 171 A Crim R 544
- Gladue v The Queen [1999] 1 SCR 688