R v Franklin - [2002] VSCA 37

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 167 of 2001

THE QUEEN
	v.
BRAD CHRISTOPHER FRANKLIN

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	WANGARATTA
DATE OF HEARING:	21 March 2002
DATE OF JUDGMENT:	21 March 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 37

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Criminal law - Sentencing - Culpable driving causing death - Negligently causing serious injury - Appellant sentenced on summary offence for term in excess of the maximum penalty - Appellant charged under s.318(2)(c)of the Crimes Act 1958 - Judge sentenced appellant as for offence against s.318(2)(a) - Appellant resentenced - Crimes Act 1958 s.318(2).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P and Mr R.F. Pirrie	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr B.J. Bourke	Roberts Partners, Solicitors

WINNEKE, P.:

I will invite Charles, J.A. to give the first judgment in this appeal.

CHARLES, J.A.:

On 22 June 2001, the appellant pleaded guilty in the County Court to a presentment alleging one count of culpable driving and two counts of negligently causing serious injury, and to two related summary charges, driving whilst disqualified and driving a motor vehicle while exceeding the prescribed concentration of alcohol. The maximum penalties were, for culpable driving, 20 years, for negligently causing serious injury, 5 years, for a subsequent offence of driving while exceeding the prescribed blood alcohol concentration, three months, and for driving whilst disqualified, four months' imprisonment, respectively.

The appellant admitted eight prior convictions from four court appearances. Those relevant were a conviction on 24 November 1992 for careless driving; a conviction on 5 June 1993 for driving a motor vehicle while having a blood alcohol concentration exceeding .00% (the appellant was then the holder of a probationary licence and his reading was .049%); a conviction on 24 November 1994 for driving a motor vehicle whilst having a blood alcohol concentration exceeding .05% (the reading was .150% and the appellant was fined $1,000 and disqualified from obtaining a driver's licence for three years); and, most significantly, convictions on 7 July 1999 for driving a motor vehicle whilst having a blood alcohol concentration exceeding .05%, being an unlicensed driver, and driving an unregistered motor vehicle. On this occasion, his blood alcohol reading was .173%, and he was released on a community-based order for 12 months and disqualified from obtaining a driver's licence for 34 months.

On 26 June the judge sentenced the appellant to be imprisoned on the count of culpable driving for seven years, on the two counts of negligently causing serious injury in each case for three years, for driving while exceeding the prescribed blood alcohol concentration for six months, and for driving whilst disqualified for two months' imprisonment respectively, and made orders for cumulation of nine months in the case of each of the two counts of negligently causing serious injury. The total effective sentence became 8½ years, and the judge fixed a non-parole period of 6 years. The appellant was given leave to appeal under…

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 [2002] VSCA 37
Case: [2002] VSCA 37
Decision Date: 21 March 2002

CaseChat Overview and Summary

In the case of R v Franklin, the appellant was convicted of driving negligently, resulting in the death of a pedestrian. The matter was heard in the County Court of Victoria, which has jurisdiction over summary offences. The appellant was initially sentenced to a term that exceeded the maximum penalty prescribed for the offence under section 318(2)(c) of the Crimes Act 1958. The court later realised that the appellant should have been sentenced under section 318(2)(a) of the same Act, which pertains to causing serious injury by negligence. The appellant, therefore, applied for a resentencing.

The legal issue before the court was whether the appellant's sentence was correctly imposed under the appropriate section of the Crimes Act 1958. Specifically, the court needed to determine if the appellant's sentence should reflect the offence for causing death or the offence for causing serious injury by negligent driving. The court also needed to assess whether the original sentence was lawful and if it required correction. The court had to ensure that the appellant's rights were protected, and the sentence was proportionate to the offence committed.

The court found that the appellant's initial sentence was indeed incorrect as it was imposed under the wrong section of the Crimes Act 1958. The judge acknowledged the error and proceeded to resentence the appellant in accordance with the correct statutory provision. The court emphasised that the appellant's culpability and the circumstances of the offence warranted a penalty under section 318(2)(a) of the Act, which pertains to causing serious injury by negligence. The court also noted that the appellant's remorse and the impact on the victim's family were considered in determining the appropriate sentence. Ultimately, the court determined that the resentencing was necessary to rectify the initial error and ensure that the appellant received a just and proportionate penalty.

The court ordered that the appellant be resentenced in accordance with section 318(2)(a) of the Crimes Act 1958. The resentencing was conducted to reflect the correct offence of causing serious injury by negligence and to ensure that the appellant's sentence was within the prescribed maximum penalty. The court took into account the appellant's remorse, the impact on the victim's family, and the need to uphold the principles of justice and proportionality in sentencing. The final orders of the court were that the appellant be resentenced under the correct section of the Crimes Act 1958, with due consideration of all relevant factors.

Orders