R v Franklin - [1998] QCA 457

[1998] QCA 457

COURT OF APPEAL

McPHERSON JA
WILLIAMS J
MUIR J

CA No 313 of 1998

THE QUEEN

IAN McGREGOR FRANKLIN Appellant (Applicant)

BRISBANE

..DATE 28/10/98

JUDGMENT

MUIR J: The applicant was convicted in the District Court at Maryborough on 28 August 1998 on one count of receiving property namely a typewriter, a ride-on tractor, a brush cutter, an electric jigsaw, a UHF radio, an electric welder, a cordless telephone, an oxygen bottle, an acetylene bottle, computer software, a quantity of stationery, a video camera, a microwave, a video recorder, a computer hard drive, a monitor and printer, which property the applicant then knew to have been stolen. He also pleaded guilty to a summary charge of possession of a drop saw and an air compressor suspected of being stolen.

The applicant was sentenced to a term of imprisonment of two years on the first count, such sentence to be suspended after a term of nine months had been served. A term of imprisonment of six months was imposed in respect of the matter referred from the Magistrates Court. The two sentences were ordered to be served concurrently.

The applicant seeks leave to appeal against sentence. The ground of appeal is that the sentences are manifestly excessive. The applicant had only one prior conviction namely that on 8 October 1985 of stealing headlight trims, spotlight covers. The penalty imposed for that offence was community service of 60 hours.

The applicant is a 34-year-old married man with three children aged 10, 7 and 5. He was educated to grade 8 but cannot read or write and is dyslexic. As a result of these handicaps he has been unable to obtain work of recent years and is on a disability pension. He suffers ill health by reason of an arthritic condition for which he takes regular multiple medications. The condition causes him to experience pain and he has monthly blood tests in order to monitor the level of drugs being taken by him. His wife has difficulty in managing the children and, in particular, one of the children who has a hyperactive condition without the assistance of the applicant.

The factors to which Mr Leask, who appears for the applicant, points in order to support the application are the applicant's state of health, the hardship occasioned his wife and family should he be absent from the home for any extended period, his cooperation with the police and his early plea of guilty. The cooperation extended to the making of admissions by the applicant in relation to property the subject of the charge which is not on any stolen property list.

The contention advanced on behalf of the applicant is that an appropriate sentence would be a period of 12 months imprisonment to be served by way of an intensive correction order.

In the learned sentencing Judge's reasons, he observed:

"This is one of the worst cases of receiving we have encountered in these Courts for some time. It represents repeated…

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.

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Details

Case: [1998] QCA 457
Decision Date: 28 October 1998

CaseChat Overview and Summary

In the case of R v Franklin, the appellant was convicted of receiving numerous stolen items and pleaded guilty to possessing additional stolen goods. The District Court sentenced him to two years imprisonment, suspended after nine months, and an additional six months for the possession charge, both sentences to run concurrently. The appellant sought leave to appeal against the sentence, arguing it was manifestly excessive. The Court of Appeal considered the appellant's personal circumstances, including his disability, poor health, and family responsibilities, alongside his cooperation with authorities and early guilty plea.

The central legal issue was whether the sentence imposed was manifestly excessive given the appellant's personal circumstances and the nature of the offence. The Court examined the sentencing principles applicable to receiving stolen property and the necessity to maintain a consistent sentencing pattern in such cases. They also weighed the appellant's cooperation and early plea against his significant personal hardships.

The Court concluded that while the custodial sentence was warranted due to the seriousness of the offence, the appellant's disabilities and health issues made the original sentence excessively harsh. The Court decided to reduce the suspended period for the head sentence to four and a half months and similarly adjust the suspended period for the possession charge. The Court of Appeal allowed the appeal to that extent, modifying the sentences as indicated.

Orders