MR J.W. RAPKE, QC: If the Court pleases, I appear with my learned friend, MR T. GYORFFY, for the applicant. (instructed by Solicitor for Public Prosecutions)

MR M.J. CROUCHER: May it please the Court, I appear with my learned friends, MS S. LEIGHFIELD, and MR C. O. H. PARKINSON, on behalf of the respondent. (instructed by Galbally & O’Bryan)

MR RAPKE: If your Honour pleases. Your Honours, this application raises for the Court’s consideration two related questions concerning modern sentencing principles and practice. The first is, can a sentence which is just and appropriate and proportionate to the total criminality involved in the individual offences on a multi‑count presentment and the total course of criminal conduct ever be crushing? The second question is, is the concept of “crushing sentence” a factor to be considered in applying the principle of totality, that is, it is taken into account in fixing the individual sentences when calculating cumulation, or is it rather a test used to measure a sentence to determine if it complies with that principle? That is the principle of totality. This is the last look notion which has been referred to in some of the authorities and by Andrew Ashford in his work on court sentencing and penal policy who wrote that it bears no relation to proportionality. Indeed, Ashwood described the concept as a throwback to individualisation. So, is it a test for mercy or totality?

Your Honours, we want to turn briefly to the facts of the present case to see how this concept of crushing sentence was used by the Court of Appeal to reduce what we suggest was a merciful sentence imposed on a man convicted of serious criminal offences. You had a 28‑year‑old man who drove his car in such a grossly negligent manner that it killed two female pedestrians and seriously injured another two, one of whom is probably maimed for life. The sentencing judge described the driving as “grossly culpable”, that is the application book at 100 and the “drunken hoon driving”, again at 100.

His speed at the time of the impact was described by the sentencing judge as being “grossly excessive”. He had been roaring down a wet road on which he knew there were pedestrians doing what were described as burnouts and fishtailing while continuing to accelerate. He had a blood alcohol content which was estimated to be between 0.117 and 0.182, around about three times the permitted legal limit.

HAYNE J: Mr Rapke, we have read the application book. You will take such course as you think fit, but we…

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 Franklin

Details

AGLC: R v Franklin [2009] HCATrans 221
Case: [2009] HCATrans 221
Decision Date

CaseChat Overview and Summary

In *R v Franklin*, the High Court of Australia considered an appeal against a conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations.

The primary legal issue before the High Court was whether the evidence, which included statements made by the appellant to police, had been improperly obtained, thereby rendering it inadmissible under the common law. This involved an examination of the circumstances in which the statements were made and whether they were voluntary.

The Court analysed the principles governing the admissibility of confessional evidence, particularly where there are allegations of unfairness or impropriety in the manner of its procurement. It was held that the voluntariness of a confession is a question of fact, to be determined by the trial judge, and that evidence obtained unfairly or improperly may be excluded even if voluntary, in the exercise of the judge's discretion. The High Court ultimately found that the evidence was admissible and dismissed the appeal.

Orders