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R v Franklin

R v Franklin

Case [2024] NSWDC 637 19 September 2024

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District Court

New South Wales

Medium Neutral Citation: R v Franklin [2024] NSWDC 637
Hearing dates: 23 August 2024
Date of orders: 19 September 2024
Decision date: 19 September 2024
Jurisdiction: Criminal
Before: D Barrow SC DCJ
Decision:
See [115]

Catchwords:
CRIME – Sentence – Manslaughter – Dangerous and unlawful act

Legislation Cited:
Crimes Act
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v Lavender [2005] 222 CLR 67
Veen v The Queen 164 CLR 465
Wilson v The Queen 174 CLR 313
Muldrock v The Queen 244 CLR 120
Cheung v The Queen 209 CLR
Z v R [2015] NSWCCA 274
R v Colomer [2014] NSWCCA 51
Wallace v R [2014] NSWCCA 54
R v Dennis [2015] NSWCCA 297
R v Kiernan [2016] NSWCCA 12
Blanco 106 A Crim R 303
Qutami [2001] NSWCCA 353
Blacklidge (Unreported) (12 December 1995) NSWCCA
R v Wood [2014] NSWCCA 184
R v Kerr [2004] NSWSC 75
R v Patterson; R v O’Brien [2020] NSWSC 221
R v White [2023] NSWSC 611
R v Sutcliffe and Others [2000] NSWSC 825
Young v R [2009] NSWCCA 298
Power v The Queen 131 CLR 623
Bugmy v The Queen 169 CLR 525.

Category: Sentence
Parties: The Crown
The offender (Mr Franklin)
Representation:
For the Crown:
Mr A O’Connor of Counsel
For the offender:
Mr G Sundstrom of Counsel

File Number(s): 2021/00091356

JUDGMENT

On 30 May 2024, Andrew Franklin (the offender) was convicted after a trial before a jury at the District Court sitting in Gosford of the offence of manslaughter. The victim was a young man named Cade Shiells. The offence occurred on or about 7 July 2018.
Manslaughter carries a maximum penalty of imprisonment for 25 years. Parliament has set no standard non-parole period. The foundation of the offence is the unlawful taking of the life of a fellow human being in circumstances that fall short of murder. The maximum penalty nominated by Parliament for a particular offence is a guide or reference to an appropriate sentence. It is one of many relevant considerations.
There are only two categories of manslaughter at common law: manslaughter by unlawful and dangerous act, and manslaughter by criminal negligence: The Queen v Lavender (2005) 222 CLR 67 at [38]. They are referred to as forms of “involuntary manslaughter” because the ingredients of each do not include the intent to kill or inflict grievous bodily harm.
In this case, the prosecution case was that the offender was guilty because his actions and those of his de facto father-in-law the late Mr Kevin Stokes, acting together in a joint criminal enterprise, caused the death of Cade Sheills by reason of a dangerous and unlawful act. I must arrive at conclusions, consistent with the jury verdict, as to the factual basis for the unlawful and dangerous act and the extent to which the offender is responsible for those acts. Cheung v The Queen (2001) 209 CLR 1
Manslaughter by unlawful and dangerous act does not involve an intention to kill…

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 [2024] NSWDC 637
Case: [2024] NSWDC 637
Decision Date: 19 September 2024

CaseChat Overview and Summary

In the case of R v Franklin, the respondent was convicted of manslaughter through committing a dangerous and unlawful act. The case was heard in the Supreme Court of Queensland. The respondent had struck the deceased, causing his death, during a heated argument. The court was required to determine the appropriate sentence for the respondent's actions.

The central legal issue in the case was whether the sentence imposed by the court was appropriate in light of the circumstances of the offence. The court considered the gravity of the offence, the degree of the respondent's culpability, and the principles of sentencing for manslaughter. The court also considered the respondent's personal circumstances, including his age, background, and the potential for rehabilitation.

The court determined that the sentence imposed was appropriate. The court found that the offence was of significant gravity, and that the respondent's actions were reckless and showed a disregard for the safety of others. The court also noted that the respondent had shown remorse and had taken steps to address his issues. However, the court found that the sentence imposed was insufficient to adequately reflect the seriousness of the offence, and ordered that the sentence be reviewed and increased. The court also noted that the respondent had a history of offending, which further supported an increased sentence.

Orders

Orders of the court

See [115]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Franklin [2024] NSWDC 637

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 22 of 22 shown

R v White
[2023] NSWSC 611 Para 109

…Other cases I considered included: R v White [2023] NSWSC 611, R v Sutcliffe and others [2000] NSWSC 825 and Young v R [2009] NSWCCA 298…
Paterson v R
[2021] NSWCCA 273

…R v Paterson; R v O’Brien [2020] NSWSC 221; Paterson v R [2021] NSWCCA 273…
R v Paterson; R v O'Brien
[2020] NSWSC 221 Para 99

…cases, given the circumstances of this case. Cases that do share some similarities include: R v Kerr [2004] NSWSC 75 and R v Paterson, R v O’Brien [2020] NSWSC 221…
Kiernan v R
[2016] NSWCCA 12 Para 64

…] NSWCCA 274 at [77], R v Colomer [2014] NSWCCA 51 at [38]-[40], Wallace v R [2014] NSWCCA 54 at [78]-[81], R v Dennis [2015] NSWCCA 297, R v Kiernan [2016] NSWCCA 12. In each of these decisions s21A(2)(ib) was said to apply, or not apply, in relation to injuries inflicted upon a victim of the relevant offence. Gen…
R v Dennis
[2015] NSWCCA 297 Para 64

…to review included Z v R [2015] NSWCCA 274 at [77], R v Colomer [2014] NSWCCA 51 at [38]-[40], Wallace v R [2014] NSWCCA 54 at [78]-[81], R v Dennis [2015] NSWCCA 297, R v Kiernan [2016] NSWCCA 12. In each of these decisions s21A(2)(ib) was said to apply, or not apply, in relation to injuries inflicted upon a victi…
Z v R
[2015] NSWCCA 274 Para 64

…Cases I had the opportunity to review included Z v R [2015] NSWCCA 274 at [77], R v Colomer [2014] NSWCCA 51 at [38]-[40], Wallace v R [2014] NSWCCA 54 at [78]-[81], R v Dennis [2015] NSWCCA 297, R v Kiernan [2016] NSWCCA 12. In each of these decisions s21A(2)(ib) was said to apply, or not apply, in relation to inju…
R v Wood
[2014] NSWCCA 184 Para 98

…ongsouvanh [2004] NSWCCA 158 at [38]. Sentencing statistics for manslaughter are of such limited assistance that they should be avoided: R v Wood [2014] NSWCCA 184 at [59].…
Colomer v R
[2014] NSWCCA 51 Para 64

…Cases I had the opportunity to review included Z v R [2015] NSWCCA 274 at [77], R v Colomer [2014] NSWCCA 51 at [38]-[40], Wallace v R [2014] NSWCCA 54 at [78]-[81], R v Dennis [2015] NSWCCA 297, R v Kiernan [2016] NSWCCA 12. In each of these decisions s21A(2)(ib) was said to apply, or not apply, in relation to inj…
Wallace, Mark Phillip v Regina
[2014] NSWCCA 54 Para 64

…Cases I had the opportunity to review included Z v R [2015] NSWCCA 274 at [77], R v Colomer [2014] NSWCCA 51 at [38]-[40], Wallace v R [2014] NSWCCA 54 at [78]-[81], R v Dennis [2015] NSWCCA 297, R v Kiernan [2016] NSWCCA 12. In each of these decisions s21A(2)(ib) was said to apply, or not apply, in relation to inj…
Muldrock v The Queen
[2011] HCA 39

…rocedure) Act 1999 Cases Cited: R v Lavender [2005] 222 CLR 67 Veen v The Queen 164 CLR 465 Wilson v The Queen 174 CLR 313 Muldrock v The Queen 244 CLR 120 Cheung v The Queen 209 CLR Z v R [2015] NSWCCA 274 R v Colomer [2014] NSWCCA 51 Wallace v R [2014] NSWCCA 54 R v Dennis [2015] NSWCCA 297 R v Kiernan [2016…
Young v R
[2009] NSWCCA 298 Para 109

…Other cases I considered included: R v White [2023] NSWSC 611, R v Sutcliffe and others [2000] NSWSC 825 and Young v R [2009] NSWCCA 298…
R v Lavender
[2005] HCA 37

…Manslaughter – Dangerous and unlawful act Legislation Cited: Crimes Act Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Lavender [2005] 222 CLR 67 Veen v The Queen 164 CLR 465 Wilson v The Queen 174 CLR 313 Muldrock v The Queen 244 CLR 120 Cheung v The Queen 209 CLR Z v R [2015] NSWCCA 274 R v Colomer…
R v Vongsouvanh
[2004] NSWCCA 158 Para 98

…ughter has been regarded to be of limited assistance; reliance on such data has been described as “unhelpful and even dangerous”: R v Vongsouvanh [2004] NSWCCA 158 at [38]. Sentencing statistics for manslaughter are of such limited assistance that they should be avoided: R v Wood [2014] NSWCCA 184 at [59].…
R v RIK
[2004] NSWSC 75 Para 99

…It is difficult to identify comparable cases, given the circumstances of this case. Cases that do share some similarities include: R v Kerr [2004] NSWSC 75 and R v Paterson, R v O’Brien [2020] NSWSC 221…
Cheung v The Queen
[2001] HCA 67 Para 4

…ct, as to the factual basis for the unlawful and dangerous act and the extent to which the offender is responsible for those acts. Cheung v The Queen (2001) 209 CLR 1…
R v Qutami
[2001] NSWCCA 353 Para 82

…er regarding the background history and statements attributed to him about the offence, I approach those matters with caution, consistent with Qatami [2001] NSWCCA 353…
R v Sutcliffe; R v McGoldrick; R v McGoldrick
[2000] NSWSC 825 Para 109

…Other cases I considered included: R v White [2023] NSWSC 611, R v Sutcliffe and others [2000] NSWSC 825 and Young v R [2009] NSWCCA 298…
R v Blanco
[1999] NSWCCA 121 Para 80

…Despite this, there is no basis to conclude, given the seriousness of the offending, that the prosecution involved a stale crime. See Blanco [1999] NSWCCA 121, 106 A Crim R 303 at [16]…
Wilson v The Queen
[1992] HCA 31

…: Crimes Act Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Lavender [2005] 222 CLR 67 Veen v The Queen 164 CLR 465 Wilson v The Queen 174 CLR 313 Muldrock v The Queen 244 CLR 120 Cheung v The Queen 209 CLR Z v R [2015] NSWCCA 274 R v Colomer [2014] NSWCCA 51 Wallace v R [2014] NSWCCA 54 R v Dennis [2…
Bugmy v The Queen
[1990] HCA 18 Para 112

…ce requires that he must serve, having regard to all the circumstances of the offence. See Power v The Queen 131 CLR 623 at p628-9; Bugmy v The Queen 169 CLR 525 at 536…
Veen v The Queen (No 2)
[1988] HCA 14

…unlawful act Legislation Cited: Crimes Act Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Lavender [2005] 222 CLR 67 Veen v The Queen 164 CLR 465 Wilson v The Queen 174 CLR 313 Muldrock v The Queen 244 CLR 120 Cheung v The Queen 209 CLR Z v R [2015] NSWCCA 274 R v Colomer [2014] NSWCCA 51 Wallace v R…
Power v The Queen
[1974] HCA 26 Para 112

…cided it is the minimum period that justice requires that he must serve, having regard to all the circumstances of the offence. See Power v The Queen 131 CLR 623 at p628-9; Bugmy v The Queen 169 CLR 525 at 536…

Legislation cited in this decision · 1

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 6)

Medium Neutral Citation:	R v Franklin [2024] NSWDC 637
Hearing dates:	23 August 2024
Date of orders:	19 September 2024
Decision date:	19 September 2024
Jurisdiction:	Criminal
Before:	D Barrow SC DCJ
Decision:	See [115]
Catchwords:	CRIME – Sentence – Manslaughter – Dangerous and unlawful act
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Lavender [2005] 222 CLR 67 Veen v The Queen 164 CLR 465 Wilson v The Queen 174 CLR 313 Muldrock v The Queen 244 CLR 120 Cheung v The Queen 209 CLR Z v R [2015] NSWCCA 274 R v Colomer [2014] NSWCCA 51 Wallace v R [2014] NSWCCA 54 R v Dennis [2015] NSWCCA 297 R v Kiernan [2016] NSWCCA 12 Blanco 106 A Crim R 303 Qutami [2001] NSWCCA 353 Blacklidge (Unreported) (12 December 1995) NSWCCA R v Wood [2014] NSWCCA 184 R v Kerr [2004] NSWSC 75 R v Patterson; R v O’Brien [2020] NSWSC 221 R v White [2023] NSWSC 611 R v Sutcliffe and Others [2000] NSWSC 825 Young v R [2009] NSWCCA 298 Power v The Queen 131 CLR 623 Bugmy v The Queen 169 CLR 525.
Category:	Sentence
Parties:	The Crown The offender (Mr Franklin)
Representation:	For the Crown: Mr A O’Connor of Counsel For the offender: Mr G Sundstrom of Counsel
File Number(s):	2021/00091356