SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FRANKLIN
[2012] SASCFC 109
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Nicholson)
21 September 2012
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS
Appeal against sentence - appellant convicted of two counts of supplying a controlled drug to a child, and acquitted of one count of indecent assault - appellant sentenced to 18 months' imprisonment with a non-parole period of 11 months' imprisonment.
Prior to trial, an informal offer to plead guilty to the two drug offences in satisfaction of the Information was rejected - on the morning of trial the appellant pleaded not guilty to each count on the Information, but offered to plead guilty to the supply of cannabis to an adult, rather than a child - these pleas were not accepted.
Whether the sentence was manifestly excessive - whether insufficient weight was given to the appellant's attempts to plead guilty prior to the trial - whether the sentencing Judge erred in declining to suspend the sentence.
Held: Appeal dismissed - there may be circumstances in which an unaccepted pre-trial offer to plead guilty to alternative offences may warrant a reduction in sentence if they are the offences of which an accused is ultimately found guilty - the offer must be an actual offer and not a sounding out or an invitation to treat.
The first 'offer' in this case was merely an invitation to treat, or a request for an indication - the appellant's defence at trial was directly inconsistent with the terms of the 'offer' - having regard to the legislative purpose of s 33F and the seriousness with which Parliament views this offence, the sentence of imprisonment was not manifestly excessive - no error demonstrated in declining to suspend the sentence.
Controlled Substances Act 1984 (SA) s 32, s 33F, s 33G, s 33I, s 33 L, s 44; Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
Cameron v The Queen (2002) 209 CLR 339; The Queen v Shannon (1979) 21 SASR 442, applied.
R v Oinonen [1999] NSWCCA 310; R v Pennisi [2001] NSWCCA 326; R v Cardoso (2003) 137 A Crim R 535; R v Bartlett [1996] 2 VR 687; R v Hansen (2011) 206 A Crim R 54; R v Dunstan [1998] SASC 6751; House v The King (1936) 55 CLR 499, considered.
R v FRANKLIN
[2012] SASCFC 109Court of Criminal Appeal: Sulan, White and Nicholson JJ
SULAN J: This is an appeal against sentence. On 23 March 2012 the defendant and appellant, Richard Donald Franklin, was convicted of two counts of supplying a controlled drug to a child.[1] He was acquitted of one count of indecent assault.[2] The maximum penalty for selling a…
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CaseChat Overview and Summary
The central legal issues before the court were whether the sentence imposed was manifestly excessive, whether insufficient weight had been given to the appellant's attempts to plead guilty prior to the trial, and whether the sentencing judge erred in declining to suspend the sentence. The appellant argued that he should have received credit for his pre-trial offers to plead guilty, as these offers, if accepted, would have led to a conviction for offences similar to those for which he was ultimately found guilty.
The court held that while unaccepted pre-trial offers to plead guilty to alternative offences may, in certain circumstances, warrant a reduction in sentence, such offers must be genuine and not merely exploratory discussions. The court found that the first offer made by the appellant was an invitation to treat or a request for an indication, rather than a formal offer made on instructions. Furthermore, the appellant's defence at trial was inconsistent with the terms of this initial offer. Considering the legislative purpose of the offence and its seriousness, the court concluded that the sentence of imprisonment was not manifestly excessive and that no error was demonstrated in the judge's decision not to suspend the sentence.
The appeal was dismissed.
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