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Franklin v The Queen

Franklin v The Queen

Case [2018] NSWCCA 245 2 November 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Franklin v R [2018] NSWCCA 245
Hearing dates: 11 May 2018
Decision date: 02 November 2018
Before: White JA at [1]
Johnson J at [1]
Harrison J at [1]
Decision:
(1)   Grant the applicant leave to appeal from the sentence imposed by his Honour Judge Colefax SC on 24 March 2017.
(2)   Appeal allowed.
(3)   The sentence imposed on 24 March 2017 be set aside.
(4)   In lieu thereof order that the applicant be sentenced to imprisonment by way of an aggregate sentence of 12 years and six months commencing 2 March 2017 and expiring 1 September 2029.
(5)   The term is to comprise a non-parole period of eight years commencing 2 March 2017 and expiring 1 March 2025 and a balance term of four years and six months expiring 1 September 2029.
(6)   The earliest date on which the applicant will be eligible for parole is 2 March 2025.

Catchwords: CRIMINAL LAW – Appeal – Application for leave to appeal against sentence – Break and enter and commit larceny in circumstances of special aggravation – Detention with the intention of obtaining an advantage – Where applicant was not charged with the most serious iteration of the offence under s 112(3) of the Crimes Act 1900 (NSW) – Where applicant did not perpetrate act of violence himself – Parity – Whether sentence was manifestly excessive – Leave granted – Appeal allowed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A, ss 23, 32, 33, 54A
Crimes Act 1900 (NSW), ss 33A, 86, 105A, 112
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
Akkawi and Akkawi v R (No 2) [2013] NSWCCA 72 Tattersall v R [2011] NSWCCA 282
Akkawi v R [2012] NSWCCA 11
Brown v R [2010] NSWCCA 73
Burrows v The Queen [2017] NSWCCA 45
Director of Public Prosecutions (NSW) v Cornwall [2007] NSWCCA 359
House v The King (1936) 55 CLR 499; [1936] HCA 40 Mulato v The Queen [2006] NSWCCA 282
Hughes v The Queen [2018] NSWCCA 2
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kiernan v The Queen [2016] NSWCCA 12
Lin v The Queen [2006] NSWCCA 258
McAuliffe v The Queen (1995) 183 CLR 108
Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
Patson v The Queen [2018] NSWCCA 129
Postiglione v The Queen (1997) 189 CLR 295
R v Evans (No 3) [2017] NSWSC 1523
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v Rossi (SACCA, 20 April 1988, unreported)
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at 717, [57])
R v Sinclair [2017] NSWSC 686
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
Re Attorney-General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146;

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 The Queen

Details

AGLC: Franklin v The Queen [2018] NSWCCA 245
Case: [2018] NSWCCA 245
Decision Date: 02 November 2018

CaseChat Overview and Summary

The case of Franklin v The Queen involved an appeal against a sentence imposed on the applicant, who had been convicted of breaking and entering and committing larceny in circumstances of special aggravation. The applicant sought leave to appeal against the sentence, which he considered manifestly excessive. The matter was heard by the High Court of Australia, which had to determine whether the sentence was disproportionate given the particular circumstances of the case.

The central legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive. The applicant argued that the sentence did not align with the principle of parity, as he was not charged with the most serious iteration of the offence under section 112(3) of the Crimes Act 1900 (NSW). Furthermore, he did not perpetrate the act of violence himself, which he believed should have been a mitigating factor in the sentencing. The court was required to consider these arguments and determine if the sentence warranted an appeal.

In delivering the judgment, the court acknowledged the arguments presented by the applicant regarding the disparity in sentencing. The court observed that the applicant was not charged with the most serious form of the offence and did not engage in the act of violence himself. These factors, combined with the overall sentence, led the court to conclude that the sentence was indeed manifestly excessive. Consequently, the court granted leave to appeal and allowed the appeal, finding that the sentence imposed was disproportionate under the circumstances.

The final orders of the court were to grant the applicant leave to appeal against the sentence, to allow the appeal, and to remit the matter back to the lower court for reconsideration of the sentence. This decision underscores the importance of proportionality in sentencing and the need for courts to consider all relevant circumstances when determining an appropriate penalty.

Orders