Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Franklin v R [2013] NSWCCA 122 Hearing dates: 14 May 2013 Decision date: 24 May 2013 Before: Hoeben CJ at CL at [1]
Hall J at [49]
Davies J at [50]Decision: Leave to appeal granted.
Appeal dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - six offences of aggravated sexual intercourse and aggravated indecent assault on 14 year old girl by offender and his partner - offences occurred on one night - whether the extent of accumulation of sentences was excessive - whether principle of totality observed - whether total effective sentence was manifestly excessive - no general rule of law that sentences be concurrent or consecutive - decision a discretionary one - fundamental question whether criminality of one offence can be encompassed in the criminality of another - sentence not excessive - appeal dismissed. Legislation Cited: Crimes Act 1900 - sections 61O(1), 61M(2), 66C(4)
Crimes (Sentencing Procedure) Act 1999Cases Cited: Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
Ibbs v R [1987] HCA 46; 163 CLR 447
LG v R [2012] NSWCCA 249
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Jarrold [2010] NSWCCA 69
R v MAK [2006] NSWCCA 381; 167 A Crim R 159Category: Principal judgment Parties: Thomas William Franklin - Applicant
Regina - Respondent CrownRepresentation: Counsel:
Mr P Boulten SC - Applicant
Ms T Smith - Respondent Crown
Solicitors:
B Sandland, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2010/246039 Decision under appeal
- Date of Decision:
- 2011-08-12 00:00:00
- Before:
- His Honour Judge Zahra SC
- File Number(s):
- 2010/246039
Judgment
HOEBEN CJ at CL:
Offences and sentence
The applicant pleaded guilty to a number of charges relating to sexual offences upon the same victim, a 14 year old girl. Each offence was committed in the company of the applicant's girlfriend (now wife). All of the offences occurred on an evening in September 2009 when the victim was staying overnight at their home and was under their care.
The offences were:
(i) Aggravated act of indecency towards a child under 16 years (with the circumstance of aggravation being in company and the relevant act being that whilst the co-offender was carrying out fellatio on the applicant, he asked the victim to touch his penis and lick his nipples) contrary to s61O(1) of the Crimes Act 1900 which carries a maximum penalty of 5 years imprisonment.
(ii) Aggravated indecent assault (touching the victim's breasts with hands and mouth, the child being under 16 years of age) contrary to s61M(2) of the Crimes Act 1900 which carries a maximum penalty of 10 years imprisonment, with a standard non-parole period of 8 years.
(iii) Aggravated sexual intercourse with a child between 14 and 16 years (cunnilingus with the circumstance of aggravation being in company) contrary to…
Continue reading Franklin v R
Sign in free to access the full text
- AGLC
- Franklin v R [2013] NSWCCA 122
- Case
- [2013] NSWCCA 122
- Decision Date
CaseChat Overview and Summary
The legal issues central to this appeal revolved around the application of the principle of totality in sentencing and whether the aggregate sentence imposed on the appellant was excessive. The court had to determine whether the sentences were imposed in a manner that took into account the totality of the offending, and whether there was a clear error in the imposition of the sentences that rendered them manifestly excessive. Furthermore, the court needed to consider the discretionary nature of sentencing and the absence of a general rule mandating either concurrent or consecutive sentences.
The court considered that there is no universal legal rule dictating that sentences must be either concurrent or consecutive. The fundamental question, instead, is whether the criminality of one offence can be encompassed within the criminality of another. The court found that the trial judge had appropriately considered the principle of totality and had not erred in imposing a sentence that was not manifestly excessive. The cumulative effect of the sentences, while severe, was deemed appropriate given the gravity of the offences. The court was satisfied that the sentences reflected the seriousness of the crimes and the need for deterrence and denunciation. Accordingly, the appeal was dismissed.
No further orders were made by the court beyond dismissing the appeal.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
Full text does not contain this section.