Franklin v The Queen - [1991] TASSC 91

82/1991
List "A"

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Franklin v R [1991] TASSC 91; A82/1991

PARTIES:  FRANKLIN, Richard James
  v
  R

FILE NO/S: CCA 58/1991
JUDGMENT

APPEALED FROM: R v Franklin 26/1991 ([1991] Tas R54)

DELIVERED ON:  10 October 1991
DELIVERED AT:  Hobart
JUDGMENT OF:  Cox, Underwood and Slicer JJ

Judgment Number: A82/1991
Number of paragraphs: 30

Serial No 82/1991
List "A"
File No CCA 58/1991

RICHARD JAMES FRANKLIN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX J
UNDERWOOD J
SLICER J
10 October 1991

Order of the Court

Application for leave to appeal dismissed.

Serial No 82/1991
List "A"
File No CCA 58/1991

RICHARD JAMES FRANKLIN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX J
10 October 1991

In my opinion, for the reasons advanced by my brethren, the applicant has not demonstrated that the sentence imposed upon him was manifestly excessive in the circumstances nor that the learned judge passing that sentence committed any identifiable error in determining it. I do not consider that the application warrants the grant of leave to appeal and would refuse it.
File No CCA 58/1991

RICHARD JAMES FRANKLIN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
10 October 1991

The applicant was convicted on his own plea of seven counts of stealing. A sentence of two years' imprisonment was imposed. This application is for leave to appeal against the severity of this sentence upon the following grounds:

"1The Learned Trial Judge erred in law in imposing a sentence which was manifestly excessive.
2The Learned Trial Judge failed to give any or any sufficient weight to the circumstances in which the crime was committed and in particular to the fact that the Applicant at all times intended to repay the monies stolen and that such intention on the part of the Applicant was neither unrealistic nor fanciful.
3The Learned Trial Judge erred in law in that when imposing sentence he failed to pay any or any sufficient weight to the fact that the Applicant’s culpability was significantly diminished as a result of the Applicant's intention at all times to repay the monies.
4The Learned Trial Judge erred in law in that he failed to pay due regard to the fact that the crimes committed by the Applicant constituted breaches of Section 228(c) of the Criminal Code Act which were less serious crimes that stealing committed contrary to Sections 226 and 234 of the Criminal Code Act 1924.
5The Learned Trial Judge erred in law in that when imposing sentence the culpability of the Applicant’s crimes was equated with the culpability of a person committing the crime of stealing contrary to Sections 226 and 234 of the Criminal Code 1924.
6The Learned Trial Judge erred in law in that he imposed a sentence the severity of which was manifest when compared to like sentences imposed in respect of similar crimes by this Honourable Court.
7The Learned Trial Judge erred…

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 [1991] TASSC 91
Case: [1991] TASSC 91
Decision Date: 10 October 1991

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Richard James Franklin appealed against his sentence for seven counts of stealing, seeking leave to challenge the severity of his two-year imprisonment. The court considered various grounds, primarily that the sentence was manifestly excessive and failed to adequately weigh mitigating factors such as the applicant’s intention to repay the stolen funds, his early guilty plea, and the non-violent nature of the crimes. The court emphasised that while the sentencing discretion involves balancing many conflicting aims, appellate intervention is only warranted if the sentence is so plainly unjust that an error in the exercise of discretion must be inferred. The court concluded that the sentence was not manifestly excessive, falling within the appropriate range for such crimes, and the applicant had not demonstrated any specific error in the sentencing process. Therefore, the application for leave to appeal was dismissed.

Orders