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Franklin v R

Franklin v R

Case [2016] NSWCCA 319 23 December 2016

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Abuse of Trust

Criminal Law

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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 38
Category: Principal judgment
Parties: Franklin (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms J Roy (Applicant)
Ms M Cinque SC (Crown)
Solicitors:
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

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…

Grounds of appeal

[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.

Continue reading Franklin v R

Details

AGLC: Franklin v R [2016] NSWCCA 319
Case: [2016] NSWCCA 319
Decision Date: 23 December 2016

CaseChat Overview and Summary

In Franklin v R, the Court of Appeal was asked to review the sentence imposed on the applicant by the Supreme Court for multiple offences of child sexual assault and possession of child abuse material. The applicant had committed these offences against an extended family member over a prolonged period. The Court of Appeal found that the sentencing judge had erred by making a blanket assessment of the objective seriousness of the offending without considering the individual offences separately. The Court of Appeal further found that the sentencing judge had failed to adequately consider the abuse of a position of trust, which was an element of some of the offences, and the fact that some of the offences were committed in the home of the victim. The Court of Appeal found that these factors were significant aggravating factors that should have been taken into account in the sentencing process.

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