R v Asplund Asplund v R [2010] NSWCCA 316

New South Wales Court of Criminal Appeal

CITATION: R v Asplund Asplund v R [2010] NSWCCA 316

HEARING DATE(S): 24 September 2010

JUDGMENT DATE: 16 December 2010

JUDGMENT OF: McClellan CJatCL at 1; Latham J at 54; Price J at 55

1. The respondent's application for leave to appeal is granted but the appeal dismissed. DECISION: 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 will be eligible for parole.

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

LEGISLATION CITED: Criminal Code 1995 Crimes (Appeal and Review) Act 2001

CATEGORY: Principal judgment

Ali v R (2010) NSWCCA 35 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Hili v The Queen and Jones v The Queen [2010] HCA 45 Leach v R [2008] NSWCCA 73 R v Berner (1998) 102 A Crim R 44 R v Bozinovski (Sydney District Court, 4 June 2009, unreported) R v Gajjar [2008] 192 A Crim R 76; [2008] VSCA 268 R v Gent [2005] [2005] NSWCCA 370; 162 A Crim R 29 R v Kennedy [2000] NSWCCA 527 R v Letteri (unreported NSWCCA 60407/91) CASES CITED : R v O'Shana (ACTSC, Refshauge J, 1 August 2008, unreported) R v Poynder (2007) 171 A Crim R 544 R v Rampley (Sydney District Court, 2 October 2009, unreported) R v Shepheard [2008] ACTSC 116 R v Singh (Penrith District Court, 19 May 2009, unreported) R v Sitt (1998) 102 A Crim R 428 R v Verdins [2007] VSCA 102 Scognamiglio (1991) 56 A Crim R 81 Tector v R [2008] NSWCCA 151 Western Australia v Collier (2007) 178 A Crim R 310 Wong v The Queen (2001) 207 CLR 584