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R v Franklin

R v Franklin

Case [2009] VSCA 77 20 April 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.53 of 2007

THE QUEEN
	v.
BRETT DOUGLAS FRANKLIN

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JUDGES:	WARREN CJ, REDLICH JA and FORREST AJA
WHERE HELD:	MORWELL
DATE OF HEARING:	28 April 2008
DATE OF JUDGMENT:	20 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 77

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CRIMINAL LAW – Culpable driving – two counts of culpable driving contrary to s 318 Crimes Act 1958 – Plea of guilty – two counts of negligently causing serious injury contrary to s 24 Crimes Act 1958 – Plea of guilty.

CRIMINAL LAW – Culpable driving – licence disqualification – Section 49(1)(b) Road Safety Act 1986 – Whether error in approach in imposing disqualification period.

SENTENCING – Culpable driving – Appeal against sentence as manifestly excessive – Whether sentence a crushing sentence –Totality – Sentencing Act 1991 s 5(3) – Whether excessive weight given to deterrence – Whether error in approach to cumulation.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M J Croucher	Galbally & O’Bryan
For the Respondent	Mr M Gamble SC with Mr S R Johns	Ms A Cannon, Solicitor for Public Prosecutions

WARREN CJ:

On Saturday 27 May 2006, Brett Douglas Franklin worked in the morning in his air-conditioning business, as was his usual practice. In the afternoon, he rode his road-bike from Leongatha to Tarwin Lower to compete in a road race and returned to his home in Leongatha. All up he rode about 150 km. He went to his mother’s house and had something to eat. He was due to attend the 21^st birthday party of one of his apprentices at the Korumburra Football Club. He did not particularly want to attend, preferring to go to bed after his hard day’s riding. His mother said he should go to the party, which he did.

Franklin drove to the football club in his red 2005 Holden Commodore SS V8 Ute, arriving at about 8.30 pm. There were approximately 150 people invited to the party. Free beer and wine was provided until about midnight and thereafter drinks could be purchased until 1.00 am. Spirits could be purchased throughout the night. Franklin was observed to drink at least four, possibly six, full strength pots of beer, followed later by at least three or possibly four cans of mixed spirit drinks. A number of people observed him to be drunk and unsteady on his feet, swaying, staggering and endeavouring to support himself. Franklin would shortly record an estimated blood/alcohol reading of between 0.117 and 0.182. The party finished at the football club at about 1.30 am. Franklin sought one lift home, unsuccessfully. He decided to drive himself home and was again observed in the carpark to be intoxicated and unsteady on his feet. A number of guests, both inside at the party and outside when Franklin was trying to open his car, told him he was too drunk to drive. Franklin ignored the advice and started his car.

Most guests left the party at the same time. There were quite…

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] VSCA 77
Case: [2009] VSCA 77
Decision Date: 20 April 2009

CaseChat Overview and Summary

The appellant, Franklin, appealed against his conviction and sentence for two counts of culpable driving and two counts of negligently causing serious injury. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria. The key issue before the court was whether there was an error in the approach taken by the trial judge in imposing a disqualification period for the appellant’s driving licence under Section 49(1)(b) of the Road Safety Act 1986. Additionally, the court had to determine whether the sentence imposed was manifestly excessive, particularly considering the principles of totality and the appropriate weight given to deterrence and cumulation as outlined in the Sentencing Act 1991.

The court considered whether the trial judge had erred in his approach to the disqualification period. It was argued that the trial judge had not adequately considered the principles of proportionality and the specific circumstances of the case when determining the length of the disqualification period. The court found that the trial judge had not erred in his approach, noting that the disqualification period was within the statutory maximum and was appropriate given the seriousness of the offences. The court also examined the sentence imposed, particularly whether it was a crushing sentence and if there was an excessive focus on deterrence. The court held that the sentence was not manifestly excessive, and the trial judge had appropriately considered the principles of totality, deterrence, and cumulation.

The court further examined whether the trial judge had erred in his approach to cumulation, noting that the sentence imposed was not disproportionate to the seriousness of the offences. The court concluded that the trial judge had not erred in his sentencing approach, and the sentence was appropriate in all the circumstances. The appeal was dismissed, and the conviction and sentence were upheld. The final orders confirmed the dismissal of the appeal and the upholding of the conviction and sentence imposed by the trial judge.

Orders