R v Franklin - [2008] VSCA 249

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 40 of 2007

THE QUEEN
	v
PAUL AMIET FRANKLIN

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JUDGES:	NEAVE and KELLAM JJA and OSBORN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2008
DATE OF JUDGMENT:	5 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 249

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CRIMINAL LAW – Sentencing – Sexual offences – Indecent acts and acts of sexual penetration – Seven victims – Children under 16 years of age and child aged 16 and 17 years of age – Children under care, supervision or authority of appellant scout leader – Total effective sentence of 10 years’ imprisonment with 8 year non-parole period not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Paul Vale Criminal Law

NEAVE JA:

I have had the considerable advantage of reading in draft form the reasons for judgment of Kellam JA. I agree that the appeal should be dismissed, for the reasons given by his Honour.

KELLAM JA:

This is an appeal against sentence imposed by a judge of the County Court sitting at Melbourne on 23 February 2007. The appellant was sentenced upon his pleas of guilty with respect to a range of sexual offences committed against seven separate male victims. The offences took place between May 1988 and September 2000.

The presentment upon which the appellant was arraigned contained the following 30 counts to which the appellant pleaded guilty:

· Indecent assault (counts 1 and 14), for which the applicable maximum penalty was five years’ imprisonment;

· Gross indecency with a child under the care, supervision or authority of the appellant (counts 2, 3, 4 and 13) for which the applicable maximum penalty was three years’ imprisonment;

· Sexual penetration of a child aged between 10 and 16 years who was under the care, supervision or authority of the appellant (counts 5, 6, 7, 8, 9, 10, 11, 12 and 15) for which the applicable maximum penalty was 15 years’ imprisonment;

· Indecent act with a child aged 16 under the care, supervision and authority of the appellant (counts 16, 17, 18, 20, 21, 27, 28, 29 and 30) for which the applicable maximum penalty was three years’ imprisonment;

· Sexual penetration of a 16-17 year old child who was under the care, supervision or authority of the appellant (counts 19, 22, 23, 24 and 26) for

which the applicable maximum penalty was ten years’ imprisonment;

· Attempted sexual penetration of a 16-17 year old child under the care, supervision and authority of the appellant (count 25) for which the applicable maximum penalty was ten years’ imprisonment.

The sentencing judge imposed the following sentences:

Count 1 (indecent assault)

12 months’ imprisonment

Count 2 (gross indecency)

12 months’ imprisonment

Count 3 (gross indecency)

12 months’ imprisonment

Count 4 (gross indecency)

15 months’ imprisonment

Count 5 (sexual penetration of a child aged between 10 and 16)

36 months’ imprisonment

Count 6…

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 [2008] VSCA 249
Case: [2008] VSCA 249
Decision Date: 5 December 2008

CaseChat Overview and Summary

The case of R v Franklin was heard in a court of criminal jurisdiction in Australia. The appellant, Franklin, a scout leader, was convicted of various sexual offences against seven children, all under his care, supervision, or authority. The victims included children under the age of 16 and a child aged 16 and 17 years. The primary legal issue before the court was whether the total effective sentence of 10 years' imprisonment, with an 8-year non-parole period, was manifestly excessive given the nature and circumstances of the offences committed against the young victims.

In addressing this issue, the court examined the gravity of the offences and the cumulative effect of the sentences imposed. It considered the appellant's position of trust and authority over the victims, which exacerbated the harm caused by the offences. The court also weighed the need for deterrence and the protection of the community against the appellant's culpability and personal circumstances. The court concluded that the sentence, while severe, was not manifestly excessive, taking into account the nature of the crimes, the number of victims, and the importance of upholding the rule of law.

The reasoning of the court highlighted the significant breach of trust and the lasting impact on the victims, particularly given their young age and vulnerability. The court found that the sentence reflected the seriousness of the offences and was appropriate to serve the dual purposes of punishment and deterrence. The court rejected the appeal, affirming the original sentence as just and proportionate to the crimes committed. The final orders of the court were to uphold the sentence of 10 years' imprisonment with an 8-year non-parole period.

Orders