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Court of Criminal Appeal 29 October 2014

Asplund v R (Cth)

[2014] NSWCCA 237

Sexual offencesPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL APPLICATION FOR EXTENSION OF TIME NO ADEQUATE EXPLANATION FOR DELAY PRINCIPLE OF TOTALITY PROPERLY OBSERVED

Citation: Asplund v R (Cth) [2014] NSWCCA 237
Court: Court of Criminal Appeal (NSW)
Date: 29 October 2014
Judges: Hoeben CJ at CL (with whom Hidden J and Davies J agreed)

Background

The applicant had previously been convicted of two child grooming offences involving online and telephone communications with a 13-year-old girl, for which he was ultimately sentenced (following a successful Crown appeal) to a total of seven years' imprisonment with a four-year non-parole period. While those proceedings were on foot, police executed a search warrant and seized his computer, which was found to contain child pornography. Around the same time, the applicant recruited his then-17-year-old son to write false exculpatory statements, which the applicant directed and revised, intending to use them to procure his own acquittal.

On 13 April 2012, the District Court sentenced the applicant on two further counts: possessing child pornography (nine months, fixed term) and doing an act to influence a witness (four years with an 18-month non-parole period). These sentences were structured to commence after the child grooming sentences, meaning the applicant's overall period of custody extended well beyond 2014.

The applicant sought an extension of time to appeal those 2012 sentences, filing the application significantly out of time and advancing three grounds: that the sentencing judge had not properly considered an alternative to full-time custody for the child pornography offence, that she had not reviewed the aggregate sentence under the totality principle, and that she had failed to give adequate weight to his advanced age as a mitigating factor.

  • Whether the applicant provided an adequate explanation for the delay in filing his appeal, and whether the interests of justice required granting an extension of time.
  • Whether the sentencing judge erred by failing to consider the second step in the Zamagias analysis, specifically whether a non-custodial or community-based sentence was appropriate for the child pornography count.
  • Whether the sentencing judge failed to apply the second limb of the totality principle by not reviewing the aggregate sentence across all counts.
  • Whether the applicant's age (born November 1944, making him approximately 67 at sentencing and 71 at earliest parole eligibility) was insufficiently considered as a mitigating factor.

Decision

The Court first observed that the application was brought substantially out of time and that no adequate explanation had been given for the delay. Applying the test from Kentwell v R [2014] HCA 37, the Court held that an extension could only be granted if the interests of justice required it, which in turn depended on whether the proposed grounds of appeal had genuine prospects of success. The Court found they did not.

On the first ground, the Court noted that the applicant was already serving sentences for serious indictable offences when sentenced on the child pornography count. Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 creates a statutory presumption against a sentence of less than full-time custody where an offender is already serving such a sentence. The sentencing judge expressly acknowledged this provision and explained why no alternative to imprisonment was appropriate. No error was established.

On the totality ground, the Court found that the sentencing judge had engaged with both limbs of the totality principle. She had first adjusted individual sentences to avoid disproportionate cumulation, and had then reviewed the overall sentencing structure to ensure the aggregate was just. Authorities including Mill v R and Pearce v R were applied. The Court found no failure in that analysis.

On the age ground, the Court rejected the submission that the sentencing judge had overlooked the applicant's age. Her Honour had expressly cited his age when making a finding of special circumstances, which resulted in a significantly reduced ratio between the non-parole period and the head sentence (37.5 percent rather than the statutory benchmark of 75 percent). The Court also confirmed, consistent with Goebel-McGregor v R and Barton v R, that a sentencing judge cannot reduce an otherwise appropriate term of imprisonment simply because it is likely to extend over most of the offender's remaining life expectancy.

Orders Made

  • Application for extension of time refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where an applicant seeks an extension of time to appeal a sentence, the prospects of success on the proposed grounds are central to whether the interests of justice require that extension to be granted.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, there is a presumption against imposing a non-custodial sentence on an offender already serving a term for a serious indictable offence; a sentencing judge who acknowledges and applies that provision commits no error in declining to impose an alternative.
  • Both limbs of the totality principle require attention: the sentencing court must adjust individual sentences to avoid disproportionate cumulation, and must then stand back to assess whether the aggregate is just and appropriate overall.
  • No error arises from a failure to explicitly state age-related mitigation where the sentencing court has already given effect to the offender's age by finding special circumstances and substantially reducing the non-parole period ratio.
  • Consistent with prior Court of Criminal Appeal authority, a sentencing court is not required to reduce an otherwise appropriate custodial term simply because the sentence is likely to consume most of the offender's remaining life expectancy, absent evidence of specific frailty or health concerns.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 323(a), 324, 91H(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Code Act 1995 (Cth), s 474.27(1)

Cases:
- Kentwell v R [2014] HCA 37
- Mill v R [1988] HCA 70; 166 CLR 159
- Pearce v R [1998] HCA 57; 194 CLR 610
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v R [2011] HCA 39; 224 CLR 120
- R v Zamagias [2002] NSWCCA 17
- Goebel-McGregor v R [2006] NSWCCA 390
- Barton v R [2009] NSWCCA 164
- R v Asplund [2010] NSWCCA 316
- R v Jarrold [2010] NSWCCA 69
- R v Young [1999] NSWCCA 275
- R v XX [2009] NSWCCA 115; 195 A Crim R 38
- Abdul v R [2013] NSWCCA 247