R v Franklin

Case [2012] SASCFC 109

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 109

Court of Criminal Appeal:       Sulan, White and Nicholson JJ

  1. 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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R v Franklin [2012] SASCFC 109
Case
[2012] SASCFC 109
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed by the District Court on the appellant, who had been convicted of two counts of supplying a controlled drug to a child. The appellant was acquitted of one count of indecent assault. He was sentenced to 18 months' imprisonment with a non-parole period of 11 months, and the sentencing judge declined to suspend the sentence. The appeal was heard by Sulan, White, and Nicholson JJ.

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.

Orders

Orders of the court

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Background

Background to the litigation

On 23 April 2012 the defendant was sentenced by a Judge of the District Court to 18 months’ imprisonment with a non-parole period of 11 months’ imprisonment. The Judge declined to suspend the sentence. Background The defendant met the complainant in late 2010 or early 2011. She was 14 years of age at the time of the offending. She was introduced to the defendant by a friend, who told her the defendant was a drug dealer. The complainant purchased cannabis from the defendant on a number of occasions. This conduct was not charged. On 12 March 2011 the complainant was hosting a party. She attended at the defendant’s house to obtain cannabis. The defendant gave her a bag of cannabis on credit, the subject of count 1. He also gave her a bong to smoke while she was at his house, the subject of count 2. The defendant made admissions to the police. At trial he admitted supplying the complainant with cannabis, but claimed that, at the time, he believed she was at least 18 years of age.The appeal The defendant submits that the sentence was manifestly excessive. He contends that insufficient weight was given to the defendant’s attempt to plead guilty prior to the trial. Further, it is submitted that the sentencing Judge erred in declining to suspend the sentence. Limited evidence is available before this Court as to the exact terms of what was offered and communicated between the defendant’s legal representative and the Director of Public Prosecutions prior to the trial. Counsel for the defendant submits that, prior to the trial, the defendant offered to plead guilty to the two drug offences in satisfaction of the Information. This plea was not accepted by the Director, who indicated to the defendant’s legal representative that the charge of indecent assault would proceed. On the morning of trial, the defendant pleaded not guilty to each count on the Information. He offered to plead guilty to the supply of cannabis to an adult, rather than a child, in respect of Counts 1 and 2. These pleas were not accepted by the Director. The defendant was later found guilty of both counts of supplying cannabis to a child. Counsel for the defendant submits that upon conviction, the defendant found himself in the same position as he would have been had the original offer to plead guilty to Counts 1 and 2 been accepted prior to the trial. Further, it is contended that the later offer to plead guilty to supplying cannabis to an adult, which was made in front of the jury, contained a significant concession by the defendant in that it narrowed the compass of the trial to two principal issues. First, his belief of the age of the complainant when the cannabis was supplied and, second, his disputing of the indecent assault allegation. The defendant submits that the sentencing Judge ought to have sentenced him on the same basis as if he had pleaded guilty, affording him credit for his offer. Counsel for the defendant agreed that the initial offer to plead guilty to Counts 1 and 2 on condition that the charge of indecent assault be withdrawn was not a formal offer made on instructions. He accepted that it was a counsel‑to‑counsel discussion to “sound out” the prosecutor. At the time, counsel for the defendant had no definite instructions to make a formal offer that the defendant plead guilty to the two counts involving the supply of a controlled drug to a child, on condition that the Director agree not to proceed on the indecent assault charge.An offer to plead guilty

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J (dissent)
In my opinion, the appellant has not demonstrated any error of the kind which would permit this Court to interfere with the exercise of the Judge’s discretionary judgment.Conclusion For the reasons given above, I would dismiss the appeal. I agree that the appeal should be dismissed for the reasons given by White J.

Ratio Decidendi

Legal Principle Established

Established by:

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