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Franklin v R

Franklin v R

Case [2013] NSWCCA 122 24 May 2013

Criminal Liability

Sentencing

Criminal Law

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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 1999
Cases 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 159
Category: Principal judgment
Parties: Thomas William Franklin - Applicant
Regina - Respondent Crown
Representation: 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…

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 [2013] NSWCCA 122
Case: [2013] NSWCCA 122
Decision Date: 24 May 2013

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Franklin, against the sentences imposed on him for multiple offences of aggravated sexual intercourse and aggravated indecent assault against a 14-year-old girl. The offences were committed alongside his partner, over a single night, and the appellant sought to challenge the extent of the accumulation of sentences as excessive, questioning whether the principle of totality was observed and if the total effective sentence was manifestly excessive. The case was heard in the High Court of Australia.

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