Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Franklin v R [2016] NSWCCA 319 Hearing dates: 2 November 2016 Decision date: 23 December 2016 Before: Macfarlan JA at [1];
R A Hulme J at [2];
Bellew J at [96]Decision: 1. Grant leave to appeal against sentence and allow the appeal.
2. Quash the sentence imposed in the District Court on 18 September 2015.
3. Sentence the applicant to an aggregate term of imprisonment of 24 years with a non-parole period of 18 years. The sentence is to date from 21 May 2014. The non-parole period will expire on 20 May 2032 whereupon the applicant will become eligible for release on parole. The total term will expire on 20 May 2038.Catchwords: CRMINAL LAW – Sentence – child sexual assault – child abuse material – offences against extended family member over extended period – blanket assessment of objective seriousness without assessment of individual offences – taking into account abuse of a position of trust where the victim being under the authority of the offender was an element of some offences – offences committed in a home as an aggravating factor – failure to explain by factors are aggravating – error established – applicant resentenced Legislation Cited: Crimes Act 1900 (NSW) ss 61M(2), 66A, 66A(2), 66C(2), 91G(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)(k), 21A(2)(eb), 23(4), 44(2B), 44(2C), 53A(2)(b), 54B(4)
Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
Criminal Appeal Act 1912 (NSW) s 6(3)Cases Cited: CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 356
EK v R [2010] NSWCCA 199; 79 NSWLR 740
Ingham v R [2011] NSWCCA 88
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Jonson v R [2016] NSWCCA 286
JRM v R [2012] NSWCCA 112
Melbom v R [2013] NSWCCA 210
Montero v R [2013] NSWCCA 214; 234 A Crim R 532
MRW v R [2011] NSWCCA 260
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Panetta v R [2016] NSWCCA 85
R v Comert [2004] NSWCCA 125
R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Van Ryn [2016] NSWCCA 1
R v XX [2009] NSWCCA 115; 195 A Crim R 38Category: Principal judgment Parties: Franklin (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Ms J Roy (Applicant)
Ms M Cinque SC (Crown)
Legal Aid NSW
Solicitor for Public Prosecutions
File Number(s): 2014/153973 Decision under appeal
- Court or tribunal:
- District Court
- Date of Decision:
- 18 September 2015
- Before:
- Robison DCJ
- File Number(s):
- 2014/153973
Judgment
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MACFARLAN JA: I agree with R A Hulme J.
-
R A HULME J: This is an application for leave to appeal against a sentence imposed by his Honour Judge Robison in the District Court at Nowra on 18 September 2015. The applicant cannot be identified by name because of the need to protect the anonymity of…
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- AGLC
- Franklin v R [2016] NSWCCA 319
- Case
- [2016] NSWCCA 319
- Decision Date
CaseChat Overview and Summary
The Court of Appeal found that the sentencing judge had failed to adequately explain why the factors considered were aggravating and how they contributed to the overall seriousness of the offending. The Court of Appeal found that this was an error of law that required the sentence to be set aside and the applicant to be resentenced. The Court of Appeal also found that the sentencing judge had not adequately considered the principles of proportionality and deterrence in imposing the sentence. The Court of Appeal found that these principles were important in ensuring that the sentence reflected the seriousness of the offending and that it served to deter the applicant and others from committing similar offences.
The Court of Appeal found that the sentencing judge had not adequately considered the impact of the offending on the victim and her family. The Court of Appeal found that this was an important factor in determining the appropriate sentence. The Court of Appeal found that the sentence imposed by the sentencing judge was manifestly inadequate and did not reflect the seriousness of the offending. The Court of Appeal found that the sentence should have been higher to reflect the objective seriousness of the offending and to serve as a deterrent to the applicant and others. The Court of Appeal remitted the matter to the Supreme Court for the applicant to be resentenced.
The Court of Appeal made it clear that the sentencing judge should consider each offence separately and assess its individual seriousness before making a blanket assessment of the overall seriousness of the offending. The Court of Appeal also found that the sentencing judge should have adequately explained why the factors considered were aggravating and how they contributed to the overall seriousness of the offending. The Court of Appeal found that the sentencing judge should have also adequately considered the principles of proportionality and deterrence in imposing the sentence. The Court of Appeal found that the sentencing judge should have adequately considered the impact of the offending on the victim and her family. Finally, the Court of Appeal found that the sentence imposed by the sentencing judge was manifestly inadequate and did not reflect the seriousness of the offending.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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