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R v Frankcom

R v Frankcom

Case [2021] NSWDC 294 1 July 2021

Aggravating and Mitigating Factors

Aggregate Sentence

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Frankcom [2021] NSWDC 294
Hearing dates: 25 March 2021; 4 June 2021; 1 July 2021
Decision date: 01 July 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 2 years 5 months. Non parole period of 12 months.

Catchwords:
CRIME – supply commercial quantity methyl amphetamine - criminal group
SENTENCING – procedure - application to withdraw Form 1 to allow for aggregate sentence – whether application unseemly – whether aggregate sentence appropriate interests of justice require rejection
SENTENCING – Relevant factors - early guilty plea -part of criminal group – parity - user dealer - recruited others - not a sophisticated operation - first gaol term - very positive efforts at rehabilitation - insight and remorse shown - strong family support - serious medical condition – length of sentence – gaol may impede progress toward rehabilitation - no ICO available given length of sentence - significant finding of special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Drug (Misuse and Trafficking) Act 1985
Justice Miscellaneous Bill 2021

Cases Cited:
Abel v R [2020] NSWCCA 82
Afu v R [2017] NSWCCA 246
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Cahyadi v R [2007] NSWCCA 1
Brown v R [2020] VSC 60
Cross v R [2019] NSWCCA 280
Green v The Queen (2011) 244CLR 462
Hamzy v R (1994) 74 A Crim R 341
Henry v R (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
Jadron v R [2015] NSWCCA 217
Mandranis v R [2021] NSWCCA 97
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Lindsay v R [2012] NSWCCA 124
Muldrock v The Queen (2011) 244 CLR 120
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Parris v R [2013] NSWCCA 5
R v Burrell (2000) 114 A Crim R 207
R v Ceissman [2004] NSWCCA 466 at [24];
R v Dekker; R v Kominkovski [2021] NSWDC 186
R v L, NSWCCA unreported, 17/6/96
R v Pullen [2018] NSWCCA 264
R v Sellen (1991) 57 A Crim R 313
Robertson v R [2017] NSWCCA 205
Smith (1987) 44 SASR 587
Tepania v R [20018] NSWCCA 247
Wanyv DPP [2020] NSWCA 318

Category: Sentence
Parties: Joshua Peter Frankcom (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr W Tuckey (for the offender)
Solicitors:
Legal Aid NSW (for the offender)
Mr M Rollestone (for Director of Public Prosecutions)

File Number(s): 2019/00354344

SENTENCE

Introduction

In the Local Court Joshua Frankcom indicated he was guilty of supplying a commercial quantity of a prohibited drug, being 311 grams of methylamphetamine: s25 (2) Drug (Misuse and Trafficking) Act 1985; maximum penalty 20 years imprisonment; standard non-parole period 10 years. He has adhered to that guilty plea in this court. Frankcom also asked, initially, that when…

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 R v Frankcom

Details

AGLC: R v Frankcom [2021] NSWDC 294
Case: [2021] NSWDC 294
Decision Date: 01 July 2021

CaseChat Overview and Summary

The case of R v Frankcom involved an individual who was part of a criminal group involved in the supply of a commercial quantity of methyl amphetamine. The defendant was before the court on sentencing matters. The defendant had entered a plea of guilty, which was an early plea, and had shown insight and remorse. The defendant was also involved in recruiting others for the criminal activity. The court needed to determine whether the application to withdraw the Form 1 was unseemly and whether an aggregate sentence was appropriate. Additionally, the court had to consider various relevant factors, including the defendant's role within the criminal group, their efforts at rehabilitation, and the presence of special circumstances that could warrant a lesser sentence.

The court considered the legal issues related to the application to withdraw the Form 1 and the appropriateness of an aggregate sentence. The court found that the application was not unseemly, and an aggregate sentence was appropriate given the defendant's involvement in the criminal activity and their efforts towards rehabilitation. The court also noted the defendant's role within the criminal group, their recruitment of others, and the lack of sophistication in their operations. The court found that the defendant had shown insight and remorse and had made positive efforts towards rehabilitation, which were significant factors in determining the appropriate sentence. The court further found that the defendant had strong family support and a serious medical condition, which could be impeded by a lengthy gaol term.

After considering all the relevant factors, the court sentenced the defendant to a term of imprisonment of 2 years and 5 months, with a non-parole period of 12 months. The court found that the defendant's involvement in the criminal activity warranted a sentence, but also considered the defendant's efforts at rehabilitation and the potential impact of a lengthy gaol term on their medical condition and rehabilitation efforts. The court found that the sentence imposed was appropriate given the circumstances of the case.

Orders

Orders of the court

Sentenced to a term of imprisonment of 2 years 5 months. Non parole period of 12 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Frankcom [2021] NSWDC 294

Most Recent Citation

R v Kinzett [2021] NSWDC 339

Cases Citing This Decision

R v Sahgal [2023] NSWDC 127
Citation 1 (Para 83)

…I have also considered the following cases: Griffiths v R [2021] NSWCCA 226; La v R [2021] NSWCCA 136; R v Frankcom [2021] NSWDC 294; R v Care; R v Al-Khateib [2020] NSWDC 856; R v Dahmoul [2019] NSWDC 920; R v Dando [2019] NSWDC 833; R v Fadel [2019] NSWDC 26.…
R v Porter (a pseudonym) [2022] NSWDC 680
Citation 2 (Para 17)

…I sentenced Frankcom on 01/07/2021: R v Frankcom [2021] NSWDC 294.…
R v Spinks [2021] NSWDC 452
Citation 3 (Para 98)

…ting of a non parole period of 12 months. I took into account his early guilty plea and his considerable progress toward rehabilitation: R v Frankcom [2021] NSWDC 294.…
R v Kinzett [2021] NSWDC 339
Citation 4 (Para 3)

…On 25 March 2021 I sentenced Dekker & Kominkovski: R v Dekker; R v Kominkovski [2021] NSWDC 186. Frankcom was sentenced on 1 July 2021; R v Frankcom [2021] NSWDC 294. Another co-offender, Spinks, is for sentence in August 2021.…

See all citing cases →

Cases Cited

Mandranis v The Queen [2021] NSWCCA 97
Citation 1 (Para 13)

…rly where a court has to consider not the length of the sentence itself but the mode by which a sentence of imprisonment may be served: Mandranis v R [2021] NSWCCA 97; Wany v DPP [2020] NSWCA 318.…
R v Dekker; R v Kominkovski [2021] NSWDC 186
Citation 2 (Para 19)

…hough they started together the proceedings have since been separated. On 25 March 2021 I sentenced Dekker & Kominkovski: R v Dekker; R v Kominkovski [2021] NSWDC 186. Proceedings for the others remain in my list. Frankcom is for sentence today. Luke Kinzett is for sentence on 23 July 2021. Another co-offender, Spi…
Wany v Director of Public Prosecutions [2020] NSWCA 318
Citation 3 (Para 13)

…ider not the length of the sentence itself but the mode by which a sentence of imprisonment may be served: Mandranis v R [2021] NSWCCA 97; Wany v DPP [2020] NSWCA 318.…
Nguyen v The Queen [2020] HCA 23
Citation 4 (Para 16)

…s more likely that the sentence for one of the offences will reflect the criminality of both: Cahyadi v R [2007] NSWCCA 1 at [27]; Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [36] – [40].…
Abel v R [2020] NSWCCA 82
Citation 5 (Para 6)

…ms, allows for the following options; described by the Court of Criminal Appeal (CCA) as “anomalous” and “highly counter-intuitive:” Abel v R [2020] NSWCCA 82.…
Brown v R [2020] VSC 60
Citation 6 (Para 92)

…htened anxiety are relevant to all prisoners but they are of greater and particular concern here because of Frankcom’s precarious health: Brown v R [2020] VSC 60 at [48].…
Cross v R [2019] NSWCCA 280
Citation 7 (Para 3)

…n ICO is an available option if an aggregate sentence of the same length or under 3 years is imposed: R v Pullen [2018] NSWCCA 264 at [83]; Cross v R [2019] NSWCCA 280.…
R v Pullen [2018] NSWCCA 264
Citation 8 (Para 3)

…rs are not eligible for an ICO, but an ICO is an available option if an aggregate sentence of the same length or under 3 years is imposed: R v Pullen [2018] NSWCCA 264 at [83]; Cross v R [2019] NSWCCA 280.…
Afu v R [2017] NSWCCA 246
Citation 9 (Para 20)

…es apply to each. Parity is a classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246. That said each sentence must also be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpabilit…
Robertson v R [2017] NSWCCA 205
Citation 10 (Para 17)

…ained, a sentencing Court, must nevertheless give full and proper consideration to the guidance offered by past sentencing decisions: Robertson v R [2017] NSWCCA 205. For commercial drug supply trafficking matters in practice this will result, absent some unusual circumstances, a sentence to be served by full time i…
Nguyen v The Queen [2016] HCA 17
Citation 11 (Para 16)

…he sentence for one of the offences will reflect the criminality of both: Cahyadi v R [2007] NSWCCA 1 at [27]; Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [36] – [40].…
Parris v R [2013] NSWCCA 5
Citation 12 (Para 95)

…and adequate punishment that reflects the harm offences such as this cause the community will generally outweigh subjective circumstances: Parris v R [2013] NSWCCA 5.…
Lindsay v R [2012] NSWCCA 124
Citation 13 (Para 73)

…eir crimes. Nor can debts to or pressure from suppliers; falling short of non-exculpatory duress: R v Ceissman [2004] NSWCCA 466 at [24]; Lindsay v R [2012] NSWCCA 124. The fact of any addiction and its consequences, how it came about and what is to be done about it may however be taken into account as a factor rele…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 14 (Para 20)

…and proportionality principles apply to each. Parity is a classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246. That said each sentence must also be determined by having regard to the circumstances of the co-offenders and their respe…
Muldrock v The Queen [2011] HCA 39
Citation 15 (Para 71)

…I am required to give content to the standard non-parole period. However, as the High Court in Muldrock v The Queen (2011) 244 CLR 120, made clear I cannot engage in a staged approach to sentencing: at [28]. Accordingly, any finding as to the objective seriousness of each offence does not compel any one result.…
Cahyadi v R [2007] NSWCCA 1
Citation 16 (Para 16)

…ode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both: Cahyadi v R [2007] NSWCCA 1 at [27]; Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [36] – [40].…
Markarian v The Queen [2005] HCA 25
Citation 17 (Para 13)

…Sentencing is generally an intuitive process: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. However, in some specific circumstances a staged or stepped approach is mandated, particularly where a court has to consider not the length of the sentence itself but the mode by which a sentence of imprisonmen…
R v Ceissman [2004] NSWCCA 466
Citation 18 (Para 73)

…a long term addiction cannot excuse their crimes. Nor can debts to or pressure from suppliers; falling short of non-exculpatory duress: R v Ceissman [2004] NSWCCA 466 at [24]; Lindsay v R [2012] NSWCCA 124. The fact of any addiction and its consequences, how it came about and what is to be done about it may however…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 19 (Para 9)

…to imposition of a sentence for that offence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. He respectfully opined that Parliament should reconsider the mechanics of the current structure whereby the circumstances in which an ICO may be impos…
R v Simpson [2001] NSWCCA 534
Citation 20 (Para 99)

…for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Regina v Simpson [1999] NSWCCA 367
Citation 21 (Para 99)

…nder should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
R v Henry [1999] NSWCA 111
Citation 22 (Para 73)

…ng. It allows me to understand what he did and continued to do it, to understand his state of mind and capacity to exercise sound judgment: Henry v R (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; Jadron v R [ 2015] NSWCCA 217.…

Legislation Cited

Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 91)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 1)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v Frankcom [2021] NSWDC 294
Hearing dates:	25 March 2021; 4 June 2021; 1 July 2021
Decision date:	01 July 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 2 years 5 months. Non parole period of 12 months.
Catchwords:	CRIME – supply commercial quantity methyl amphetamine - criminal group SENTENCING – procedure - application to withdraw Form 1 to allow for aggregate sentence – whether application unseemly – whether aggregate sentence appropriate interests of justice require rejection SENTENCING – Relevant factors - early guilty plea -part of criminal group – parity - user dealer - recruited others - not a sophisticated operation - first gaol term - very positive efforts at rehabilitation - insight and remorse shown - strong family support - serious medical condition – length of sentence – gaol may impede progress toward rehabilitation - no ICO available given length of sentence - significant finding of special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug (Misuse and Trafficking) Act 1985 Justice Miscellaneous Bill 2021
Cases Cited:	Abel v R [2020] NSWCCA 82 Afu v R [2017] NSWCCA 246 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Cahyadi v R [2007] NSWCCA 1 Brown v R [2020] VSC 60 Cross v R [2019] NSWCCA 280 Green v The Queen (2011) 244CLR 462 Hamzy v R (1994) 74 A Crim R 341 Henry v R (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 Jadron v R [2015] NSWCCA 217 Mandranis v R [2021] NSWCCA 97 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Lindsay v R [2012] NSWCCA 124 Muldrock v The Queen (2011) 244 CLR 120 Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 Parris v R [2013] NSWCCA 5 R v Burrell (2000) 114 A Crim R 207 R v Ceissman [2004] NSWCCA 466 at [24]; R v Dekker; R v Kominkovski [2021] NSWDC 186 R v L, NSWCCA unreported, 17/6/96 R v Pullen [2018] NSWCCA 264 R v Sellen (1991) 57 A Crim R 313 Robertson v R [2017] NSWCCA 205 Smith (1987) 44 SASR 587 Tepania v R [20018] NSWCCA 247 Wanyv DPP [2020] NSWCA 318
Category:	Sentence
Parties:	Joshua Peter Frankcom (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr W Tuckey (for the offender) Solicitors: Legal Aid NSW (for the offender) Mr M Rollestone (for Director of Public Prosecutions)
File Number(s):	2019/00354344