Gleeson JA at [1] Johnson J at [2] Cavanagh J at [148]
Decision:
1. Grant the Applicant leave to appeal against sentence. 2. Appeal against sentence dismissed.
Catchwords:
APPEAL – SENTENCE – offender pleaded guilty to a number of sex offences committed over 10 year period against his sister between 1967 and 1977 – unlawful and carnal knowledge of a girl between 10 and 16 contrary to s.71 Crimes Act – incest offence contrary to s.78A Crimes Act – two offences of rape contrary to s.63 Crimes Act – two further offences of indecent assault taken into account on a Form 1 – offences representative of sexual offending against sister over a period of 13 years – whether sentencing Judge erred in assessment of objective seriousness of the rape offences – no error demonstrated in approach taken by sentencing Judge to assessment of objective seriousness – findings of objective seriousness open to the sentencing Judge – whether aggregate sentence imposed was manifestly excessive – where challenges directed to indicative sentences – whether degree of notional accumulation reflected sentencing practices at the time of the offences – where indicative sentences nominated were substantial but not suggestive of error – where sentencing Judge had regard to sentencing principles and practice at time of offending conduct – no error demonstrated in approach taken by sentencing Judge to historical sex offences – aggregate sentence not unreasonable or plainly unjust – appeal dismissed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Franklin v R [2019] NSWCCA 325
Case
[2019] NSWCCA 325
Decision Date
CaseChat Overview and Summary
The appellant, Franklin, appealed against the sentence imposed by the sentencing judge in relation to multiple sex offences committed against his sister over a period of 10 years between 1967 and 1977. The offences included unlawful and carnal knowledge of a girl between 10 and 16, incest, and rape. The appellant pleaded guilty to these charges, and the sentencing judge determined the appropriate aggregate sentence. The central issue before the court was whether the sentencing judge had erred in the assessment of the objective seriousness of the rape offences and if the aggregate sentence imposed was manifestly excessive.
The court examined the sentencing judge's approach to assessing the objective seriousness of the offences and found no demonstrated error. The findings of objective seriousness were considered reasonable, given the nature and duration of the offences. The court further determined that the aggregate sentence was not unreasonable or plainly unjust. The sentencing judge had appropriately considered the sentencing principles and practices at the time the offences were committed. The indicative sentences nominated by the prosecution were substantial but did not suggest an error in the assessment by the sentencing judge. The court concluded that the sentencing judge's approach to the historical sex offences was appropriate, and the aggregate sentence was justified.
Given the findings, the appeal was dismissed. The court upheld the sentencing judge's determination, affirming that the sentence imposed was appropriate and not manifestly excessive. The reasoning and methodology employed by the sentencing judge were deemed sound, and the appeal did not succeed in establishing any grounds for overturning the sentence.