R v Franklin

[2024] NSWDC 637

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

1. 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.

2. 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.

3. 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.

4. 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

5. Manslaughter by unlawful and dangerous act does not involve an intention to kill or inflict grievous bodily harm. However, the unlawful and dangerous act involved must be an intentional and voluntary one and it must be established that a reasonable person in the position of the accused would have realised that he or she was exposing the victim to an appreciable risk of serious injury: Wilson v The Queen (1992) 174 CLR 313 at 333.

Purposes of sentencing

6. Section 3A Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a court can impose a sentence. Given that s 3A does not depart from the common law (see further below), the starting point for any discussion of the purposes of punishment must be Veen v The Queen (No 2) (1988) 164 CLR 465 where Mason CJ, Brennan, Dawson and Toohey JJ said at 476:

… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

7. Section 3A sets out the following seven purposes “for which a court may impose a sentence on an offender”:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and to the community.

8. The High Court said of s 3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated [in s 3A] are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law [Veen v The Queen (No 2) at 476–477]. There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

9. Each of these purposes of sentencing are relevant to varying degrees in this case. In written submissions the Crown emphasised the importance of general deterrence, holding the offender to account, the denunciation of his conduct and recognition of the harm done to the deceased and his family.

The sentence hearing

10. Proceedings on sentence occurred on 23 August 2024.

11. The Crown tendered as Ex A a bundle of documents comprising: a sentence summary, the Indictment, the offender’s criminal and custodial histories and the SAR dated 11 July 2024. A VIS, prepared by Tracy Durrant, the deceased’s aunt was tendered as Ex B and read by Ms Durrant.

12. On behalf of the offender, the report of Lee Knight, Clinical Nurse Consultant (Forensic Mental Health) dated 17 July 2024 was Ex C. A reference from the offender’s employer David Hill and his work supervisor Cameron Pinchbeck were Exhibits D and E.

Victim Impact statement

13. Ms Durrant wrote of the emotional and physical impact of Mr Sheills’ death on herself, her sister (Mr Sheills’ mother), Mr Sheills’ brother and upon her sons. The impact of his death on all of them was so profound that prior to his death she could not have imagined it.

14. In part she said:

The emotional toll of Cade’s death has been overwhelming. My nephew was not just a family member he was a son, a grandson, brother, a nephew, a cousin and a friend. He was a bright, sunny, creative young man with so much life and potential ahead of him. Cade was also a chef with dreams and a promising future in the culinary world. His absence is a daily reminder of what we have lost. Every day we wake to be reminded that we will never hear his funny jokes or enjoy his humour again. Cade is no longer here and we will carry that grief with us every day for the rest of our lives.

For me personally, the emotional loss and trauma has been excruciating. The shock and disbelief that my nephew was taken away in such a senseless manner is something I struggle to comprehend. The loss has led me to suffer deep feelings of sadness and helplessness. I find myself struggling to find answers to unanswerable questions and seeking a sense of peace or closure where there seems to be none. The emotional wound Cade’s loss has left will stay with me for the rest of my life.

My family has been equally devastated. His mother (my sister) is still inconsolable. The trauma she suffers and the impact to her life is unbearably painful to watch. She constantly relives the trauma of his death, and the emotional toll it has taken on her is evident in every aspect of her life. She has been robbed of the chance to watch Cade grow and achieve his dreams of having his own family and having her own grandchildren one day. Life will never be the same again.

Cade’s older brother and cousins have also been robbed of the possibility of spending their lives together, sharing in their achievements and supporting each other when things get tough. There were five boys together, cousins and brothers - now there are four. Cade will always be missing and it is difficult to watch them grieve their loss.

15. Ms Durrant wrote also of the physical impact of the death of Cade, particularly on her sister and on their relationships with each other and observed: “the trauma and grief associated with Cade’s death will stay with us for the rest of our lives.”

16. On behalf of the Court, I thank Ms Durrant for her statement, and I express my sincere sympathy to all of Cade’s family for his tragic death.

The facts

17. Turning to the facts of the matter. As the Crown points out in the written submissions, the principles of fact finding upon sentence after trial are well established and were restated by the High Court in the matter of Cheung v The Queen 209 CLR at 14 as follows:

1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury …

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing.  Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. …

3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. …

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. … "

18. Although there are no agreed facts, the Crown produced a summary of potential available facts as Annexure A to the written submissions on sentence. Mr Sundstrom, who appeared for the offender, accepted the proposed summary in large part, with the exception of paras [17]-[18], that relate to the issue of whether the offender or Mr Stokes physically assaulted the deceased in the moments before his death.

19. The Crown noted that at trial the Crown case was that the offender was guilty either because the assault, being the unlawful act, constituted an act of intimidation that placed the deceased in fear for his safety or was a physical battery. Accordingly, it was accepted that the jury’s guilty verdict did not oblige the Court to make a finding that the assault involved physical contact between the deceased and the offender or Mr Stokes.

20. On the offender’s behalf, Mr Sundstrom submitted that the Court would conclude there was no physical assault on the deceased, committed either by the offender or Mr Stokes.

21. I find the facts as follows:

22. On the evening of 7 July 2018, Cade Shiells went out for the night, looking forward to socialising with friends. He became very significantly intoxicated.

23. In a relatively early part of the evening, at about 9PM, he was collected by KEM, a young woman that he knew, and her friend Jayden. They brought him back to KEM’s motel room at the Lakefront Motel, The Entrance North.

24. CCTV footage recorded their return to the motel at 9:11PM. The deceased was walking in a bizarre fashion. The footage suggests he was very intoxicated.

25. KEM had been staying at this motel for some time. She was also friends with the offender, his partner Melissa Ollerenshaw and she had also met Melissa’s stepfather Kevin Stokes. KEM had become fond of Darren Wright, one of their long-term friends. On the evening of 7 July 2018, Melissa’s younger brother Cameron was already at KEM’s motel room.

26. At about 10:05PM KEM received a request to go and locate Darren Wright. Mr Wright had become extremely intoxicated at another social gathering and had fallen over and hit his head. He had refused ambulance assistance and left that gathering. The offender, Melissa Ollerenshaw and her stepfather Kevin Stokes were also at that gathering. They couldn’t locate Mr Wright and were concerned about him. It was in this context that KEM was asked to try and locate Mr Wright.

27. KEM left Cade Shiells and Cameron Stokes at her motel and together with her friend Jayden went looking for Mr Wright. They located him in Bateau Bay and brought him back to the motel at 10:45PM. CCTV footage also recorded his gait. He too appears to have been very intoxicated.

28. Whilst KEM and Jayden were away, Cade Shiells asked questions of Cameron Stokes about Mr Wright. Cameron, aged only 18, found the questions concerning and gave evidence there was a paranoid quality to them.

29. Not long after Mr Wright entered the motel room, and shortly before 11:27PM, a fight broke out between him and Mr Sheills. On the available evidence, Mr Sheills was the aggressor. The head injury Mr Wright had suffered earlier that evening at the other party recommenced bleeding.

30. At 11:27 PM the deceased left KEM’s motel room by jumping from the balcony onto a roof and then jumped down into the car park. Post-mortem evidence suggests he fractured a bone in his foot when doing this. His departure from the motel room was recorded by the motel’s CCTV system. The deceased’s motivation for this conduct is unclear. It is possible that he fled the unit because he anticipated the arrival of Mr Wright’s friends, and feared they would harm him in some way because of the interactions he had had with Mr Wright.

31. Most likely after the fight and before Mr Sheills’ departure from the motel room, Melissa Ollerenshaw had telephoned KEM to ask about Mr Wright’s well-being. She was informed about the violent conduct of the deceased and told that Mr Wright had suffered a further injury.

32. Upon receiving this news, Melissa Ollerenshaw communicated it to the offender and her stepfather. All three individuals immediately made their way to the motel. The CCTV footage confirms they arrived at about 11:29 PM. The motel CCTV footage depicts both the offender and his late de facto father-in-law Mr Stokes moving rapidly and purposefully up the stairs to KEM’s motel room.

33. Although the evidence at trial from Melissa Ollerenshaw, her brother Cameron Stokes and Mr Wright, together with the statements of the offender to police, was silent as to the reaction by the offender and Kevin Stokes to the news that the deceased had assaulted Mr Wright, KEM’s evidence was that upon being told of the incident both men expressed the desire to locate Mr Shiells and punish him. I accept KEM’s evidence.

34. The CCTV footage shows both men rapidly leaving the motel room at 11:32pm and heading at a run towards the park areas on the other side of the road. These images support the conclusion that they were intent on locating the deceased and dealing with him because of what they understood he had done earlier.

35. KEM gave evidence that I accept, that she and her friend Jayden then collected the accused and Kevin Stokes in her car and together they drove towards The Entrance Bridge, looking for Mr Sheills. Her evidence was that they then drove into the car park area across the road from the Lakefront Motel and further efforts were made to locate Mr Shiells in the surrounding parkland. KEM gave evidence that the offender and Kevin Stokes were yelling threats of physical harm towards Mr Shiells, however he could not be located. KEM and Jayden returned in their car. At 12:02 AM, the motel’s CCTV recorded the return to the motel of the offender and his stepfather Kevin Stokes on foot.

36. Two minutes later, at 12:04 AM, Cameron Stokes observed the deceased from the veranda of KEM’s motel room and yelled “Is that him?” Mr Shiells was some distance away, on the other side of Wilfred Barrett Drive. CCTV footage captured images of Mr Shiells at that time when passing cars illuminated the area. There were no nearby streetlights. In the CCTV footage, Mr Shiells can be seen either on or adjacent to the roadway with his arms stretched out horizontally.

37. The sighting of Mr Shiells was communicated by Cameron Stokes to the other people in the motel room. This prompted the offender and his stepfather Kevin Stokes to again rush down the stairs and run in the direction of the deceased at 12:04:17 PM. The offender can be seen removing his top as he went down the stairs. Their aggressive intent is obvious. Plainly, they wanted to encounter Mr Shiells and deal with him for his earlier behaviour. Everything in the build up to this moment supports this conclusion.

38. A complicating factor in determining what then occurred is the absence of streetlights. Mr Shiells was only visible when illuminated by the lights of passing vehicles. While he was on the road and before the offender and Kevin Stokes became aware of his presence, Mr Shiells behaviour had been very unusual. Mrs Davies, a passing motorist, gave evidence she had been driving south on Wilfred Barrett Drive and on two occasions had had to brake and swerve to avoid striking the deceased, who was performing star jumps in front of her vehicle. Her evidence was that as she proceeded south, she flashed her lights at oncoming motorists to warn them of his presence.

39. The arrival of the offender and Mr Stokes at the roadway is not captured in the CCTV footage. The distance from KEM’s room to the location of the deceased was very short, something in the order of 40-50 metres, as depicted in photographs tendered in the trial. The offender and Mr Stokes were running and would have reached the deceased’s location very quickly.

40. Although it was just after midnight, Wilfred Barrett Drive (the Central Coast Highway) is the main road between The Entrance and The Entrance North. It is apparent from the CCTV footage that vehicles were travelling north and south reasonably regularly at that time of the night. The danger posed by a confrontation with the deceased on this piece of road was obvious.

41. The events that led to the death of Mr Shiells and Mr Stokes occurred very soon after the two men arrived. Images from the CCTV at 12:04:50 AM depict the moment immediately before the motor vehicle driven by Mr Seaman collided with the individuals on the road. There was no issue at the trial that at the time of the impact the deceased was lying on the road at about 90° to the direction of travel, with his head in the northbound lane and his feet in the southbound lane. The offender and Kevin Stokes were recorded as being very close to the prone Mr Shiells. Although the imaging is poor, it is apparent that the offender was standing upright, and Mr Stokes was crouched close to Mr Shiells.

42. The vehicle driven north by Mr Seaman on Wilfred Barrett Drive then struck both the deceased and Kevin Stokes. There were no streetlights and the road trended right as he approached the location where the deceased was on the ground. The deceased was run over by Mr Seaman’s vehicle and killed instantly. Kevin Stokes received such severe injuries that he never regained consciousness and passed away on 27 July 2018. The accused told police that a laceration he had sustained to his head was caused by the vehicle contacting him as it collided with the other two men. Otherwise, he was not harmed.

43. The Crown case was that there was a joint criminal enterprise between the offender and Mr Stokes to assault Mr Sheills. Mr Sheills was lying prone on the road because the offender or Mr Stokes or both of them, had physically assaulted Mr Sheills, or they had both put him in such fear of immediate unlawful violence that he had fallen over on the roadway whilst trying to avoid them.

18. Consistent with the jury verdict, I have no difficulty in concluding that such a joint criminal enterprise existed. The evidence in support of this conclusion includes the evidence of Mr Shiells’ alleged assault upon Mr Wright, the attendance of the accused and Mr Stokes at the motel immediately after they became aware of the alleged assault, their almost immediate departure to look for Mr Sheills, the evidence of KEM as to their violent threats towards him during the search and their subsequent actions at 12:04 AM, when both men rushed down the stairs and ran rapidly in his direction.

19. I accept that both this offender and Mr Stokes rushed towards Mr Shiells intending to assault him.

20. I also have no difficulty in concluding the deceased knew the search was occurring and was terrified. Phone calls that he made to his friends confirm this was so. Quite why he made the fatal decision to return to a spot adjacent to the motel is unknown. Possibly it was because of his intoxication and disorientation. Possibly his behaviour beside the roadway was an attempt to persuade a passing motorist to stop and take him away from the area. These matters are unclear. They do not aggravate the offender’s conduct in any event.

21. The forensic evidence could not determine whether any of Mr Shiells’ injuries had occurred before the impact of the car. Similarly, although the offender had grazes to both hands and a graze to his knee and an injury to his head, it is not possible to come to a conclusion as to when or how those injuries were sustained.

22. Although the offender said otherwise in his interviews with police, I note that in a telephone call he had with Detective Dominish on 23 August 2018, he said: “There was a bit of conflict on the road … we were on the road fighting…”

23. Despite this admission, there is no evidence I can confidently rely upon to find that this offender physically assaulted the deceased.

24. Given the need to be satisfied beyond reasonable doubt of the actual infliction of physical harm upon the deceased by this offender, I intend to proceed upon the basis that he did not physically assault Mr Shiells and instead proceed on the basis that the aggressive actions he and Kevin Stokes took towards the deceased brought about the situation whereby the deceased was lying prone on the roadway.

25. Whether this was by reason of an actual battery on the part of Mr Stokes, pursuant to the existing joint criminal enterprise, or because of a clumsy and uncoordinated effort on the part of the very intoxicated Mr Shiels to escape from the prospect of immediate unlawful violence from both men is unknown. It is one explanation or the other.

26. Given the need to find aggravating facts beyond a reasonable doubt, I proceed on the basis that both this offender and Mr Stokes ran to the roadway and confronted Mr Shiells, who fell over during an intoxicated and uncoordinated effort to escape from the prospect of immediate unlawful violence from both men.

27. There is no evidence capable of acceptance to support the conclusion that the offender or Mr Stokes tried at any time to persuade Mr Shiells to get off the roadway. To the extent that the offender asserted this in his interviews with police, I reject that evidence as deliberately untrue.

28. The extreme danger posed to an individual lying prone on a relatively busy unlit road, on a bend and at about midnight is obvious. It is a remarkable feature of the evidence that all three men were oblivious to the approach of Mr Seaman’s vehicle.

Objective gravity of the offence

55. Every offence of manslaughter is founded on the unlawful taking of human life. That fact, and the maximum penalty, speak for themselves in terms of the gravity of the offence. But it is necessary for me to make some assessment of where on the spectrum of seriousness this example of the offence of manslaughter sits, not least so that I can give sensible reflection to the maximum penalty in my sentence. Sentences for the offence of manslaughter can cover a wide range of outcomes, from a bond to very significant time in fulltime custody.

56. Here the offender’s conduct, together with that of Kevin Stokes, was motivated by a desire to locate and punish Mr Shiells for his alleged assault upon Mr Wright.

57. The offender and Kevin Stokes, both men of mature years, thought it appropriate to administer summary justice to Mr Shiells because of their belief that he had earlier assaulted their friend Mr Wright. That the offence was committed in company is a matter of aggravation, pursuant to s21A(2)(c) of the Crime (Sentencing Procedure) Act.

58. It would have been an easy matter to have reported the assault on Mr Wright to the police. KEM knew who Mr Shiells was. There would have been no difficulty for the police to have investigated the incident and located him.

59. Instead, the deceased was hunted for over 30 minutes. Threats of serious harm were yelled out by Mr Stokes during the search. Mr Sheills was plainly terrified, probably unsure of where he was and severely intoxicated.

60. Both the offender and Mr Stokes were also intoxicated to some extent; however, it is not possible to know the extent of this. The CCTV vision of both men demonstrates they could both move freely up and down stairs and run rapidly towards Mr Shiells. In any event, their intoxication was self-induced and does not mitigate their conduct. It does however explain their aggression and impulsivity.

61. The offending did not involve significant planning. The death of Mr Shiells was clearly neither anticipated nor sought by this offender.

62. Although I cannot be satisfied that either the offender or Mr Stokes physically assaulted the deceased, it was because of their actions in the period from 11:30PM and in particular in the moments before the car’s impact, that caused Mr Shiells to fear immediate and unlawful violence from them. Consistent with the jury verdict, it was their actions that caused the deceased to be lying on the road when he was struck and killed by Mr Seaman’s vehicle. Their conduct significantly contributed to Mr Shiells’ death.

63. The Crown also submitted that this offender’s conduct is aggravated pursuant to s21A(2)(ib) of the C (SP) Act, as his conduct involved a grave risk of death to another person, namely Mr Stokes.

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 injuries inflicted upon a victim of the relevant offence. Generally, the offending conduct involved the use of a weapon such as a knife or a gun, where the risk of a far worse outcome was obvious and avoided only by chance. In my assessment the circumstances here are different. It was Mr Stokes’ conduct that exposed himself to the grave risk of death. His death, or the risk of it, is not a matter of aggravation when sentencing Mr Franklin.

65. I accept the Crown submission that other possible factors of aggravation, namely the actual or threatened use of violence and that the conduct occurred without regard to public safety are implicit in the elements of the offence and are better considered as matters relevant to an assessment of the objective gravity of the offending. I have taken this approach.

66. On my assessment, for the reasons I have outlined, the objective gravity of the offending falls a little below the midrange for an offence involving involuntary manslaughter.

Subjective matters

Mr Franklin’s background

67. In the written submissions filed on behalf of the offender, the following summary which I adopt sets out matters relevant to the offender’s early life: It seems that he enjoyed an unremarkable childhood within a loving and supportive family unit. He was relatively untroubled at school, although suffered some bullying. He was however a disinterested student, not a reader, and left school as early as he could. He did however take up drinking large amounts of alcohol and indulging in illicit drug use, commencing in his mid-teens.

68. He was significantly affected by alcohol at the time of the offence. His main relationship since age 22 has been with Melissa. They have four children and have lived together for the benefit of the children, even though they are not currently in a personal relationship. He has mostly remained in employment and will be able to return to his recent job upon his release.

Criminal record

69. The offender was 30 years old at the time of this offence. He has a limited criminal history, largely consisting of driving offences. In 2011 he was fined for Affray. In 2018 he was placed on conditional release orders without conviction for 2 years for resisting an officer in the execution of his duty, offensive language and intimidating a police officer. Those offences were committed in the aftermath of the events comprising these proceedings.

70. In 2022, after he was charged with this matter, he was charged with Driving whilst Disqualified. The matter was dealt with pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999. That is the only matter since 8 July 2018.

71. He has never served a sentence of imprisonment.

72. In my view, his record is of almost no significance, and he is entitled to a measure of leniency by reason of his limited criminal record and his prior relatively good character.

73. His behaviour on this night whilst deplorable, was out of character. It is notable that he was in the company of an older man, his father-in-law, and this may have contributed to his extremely poor decision to participate in the hunt for Mr Shiells and to then confront him on the roadway.

Delay

74. This offence occurred on or about 7 July 2018. The offender was repeatedly interviewed by investigating police in the period immediately after the offence. By 23 August 2018 he had been cautioned and informed by police that he was suspected of criminal involvement in the death of Mr Shiells. He was not charged until 1 April 2021, almost 30 months later.

75. Having been informed in August 2018 that he was a suspect and then having heard nothing for about 2 years 6 months, it can be accepted that for an extended period he lived in a state of uncertain suspense and that as time passed without being charged, he must have become more confident there was to be no prosecution and thus ordered his affairs accordingly.

76. Confirmation that he was to be prosecuted came on 1 April 2021. He then had to wait, again in a state of uncertain suspense, for more than 3 years for his trial to take place in May 2024. It is now some 6 years and 2 months since the offence.

77. The actual reasons for these lengthy delays were not made apparent to the Court, however the evidence relied upon by the prosecution was available at an early point in time. The delay prior to the offender being charged appears to be because of delay on the part of prosecuting authorities to decide whether he would be prosecuted for his part in the events. Thereafter, the subsequent three-year delay appears at least in part to be because of the impact of Covid-19 on the Court’s capacity to conduct trials and trial delay more generally.

78. None of the delay was caused by the offender.

79. In these circumstances it is appropriate to regard the impact of the delay upon the offender as a quite significant mitigating factor. The offender was living in an uncertain state of suspense for an extended period. Aside from one Drive whilst Disqualified offence in 2022 he has not re-offended. The tragic outcome of these events has had a substantial effect on him.

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]

Mental health

81. Ms Knight assessed the offender on 1, 3 and 5 July 2024 by AVL. Ms Knight is a registered nurse and is employed as a clinical nurse consultant in forensic mental health. She holds the degrees of Master of Nursing in Clinical Practice (Majoring in Mental Health) and Master of Forensic Mental Health. Her extensive experience is set out in the s77 certificate attached to her report. She is currently the Academic Program Director of the Mental Health Practice Program, part of the Faculty of Medicine and Health at UNSW. She is also a Senior Lecturer in Forensic Mental Health at UNSW. Although it appears that Ms Knight is neither a qualified psychiatrist or psychologist, she clearly has significant expertise. There was no objection to her expert report.

82. In the absence of sworn evidence from the offender regarding the background history and statements attributed to him about the offence, I approach those matters with caution, consistent with Qatami [2001] NSWCCA 353

83. I do not accept Mr Franklin’s untested account that he and his father-in-law were trying to locate the deceased to ‘scare him off’ or that upon encountering the deceased beside the road he tried to encourage him to come off the road as he was fearful that there may have been an accident. Similarly, I do not accept his account as to what happened between himself, Mr Stokes and the deceased immediately before the arrival of the car. The offender’s account to Ms Knight about these matters, like his account to the police, was self-serving and untrue.

84. After setting out the offender’s background and his account of the events giving rise to the offence, Ms Knight noted that in 2018 Mr Franklin had suffered from seizures that were associated with high levels of alcohol consumption. Seizures ceased in 2019 after he reduced his alcohol intake.

85. Mr Franklin’s alcohol consumption, as reported, was very high between the ages of 17 and 35. He turned 35 in 2022. Since then, he has continued to drink far beyond a healthy level up until the jury verdict and his entry into custody. (see report p8)

86. What is clear is that Mr Franklin has suffered very poor mental health because of the trauma of this event. Ms Knight noted symptoms consistent with PTSD:

“He witnessed the traumatic event directly as it happened to others, and it is not inconceivable that he perceived his life had been at imminent risk at the time of the collision. He has expressed ongoing intrusive thoughts, dreams and nightmares pertaining to the traumatic event. He has feelings of guilt, is hypervigilant, and actively attempts to avoid thinking about the traumatic event. He has a persistent negative emotional state and experiences persistent negative beliefs about himself. He has engaged in reckless behaviour and has sleep disturbance and problems with concentration. These symptoms have persisted for longer than a month and cause him clinically significant distress.

In addition to a diagnosis of PTSD, he suffers from alcohol use disorder and cannabis use disorder.”

87. Ms Knight considered that the offender will need ongoing treatment for his mental health, both in custody and upon his release. In her opinion, upon his release he should abstain from alcohol and all illicit substances.

88. A consequence of the diagnosis of PTSD is that the offender will likely find custody more onerous than it would normally be. Further, his need for professional intervention for his ongoing poor mental health and related substance abuse disorders means he will require a significant period of time under supervision upon release. These matters provide a basis for a finding of special circumstances.

Remorse

89. During the police investigation the offender participated in three recorded interviews. Although he was not required to do so, his accounts of what occurred were self-serving and deliberately false. In the period immediately after the death of Mr Shiells, he encouraged KEM to not provide an account of the events of the night to the police.

90. The offender has never accepted responsibility for having played a substantial part in the death of the deceased. As was his right, he pleaded not guilty and went to trial, on the basis that there was no joint criminal enterprise and nothing was done by either himself or Mr Stokes that contributed to Mr Shiels’ death. He maintained this position when speaking with the Community Corrections Officer, who prepared the Sentencing Assessment Report.

91. I cannot find that he is remorseful, as he has not accepted responsibility for his part in the tragedy. I do accept more generally that he is genuinely sorry that Mr Sheills and Mr Stokes lost their lives in this senseless way.

Rehabilitation and prospects of re-offending

92. The offender is now 36 years of age. This offence is the only serious matter on his limited criminal history. He was employed fulltime in the months before the trial. He is the parent of four young boys and has a supportive family. Aside from the 2022 traffic offence, he has not committed further offences since 8 July 2018.

93. Alcohol played a huge part in this offence. It would seem from the offender’s comments to the SAR author and to Ms Lee, that he perceives himself as a “bad alcoholic” and a “functional alcoholic”, yet he continues to drink alcohol and use cannabis to relax and unwind. He displayed some insight that alcohol consumption can encourage aggression. It would have been preferable for any assessment of his future prospects that there was evidence he has started to address his dependence on alcohol and cannabis. For the sake of his children and his future it is important that he deal with this. I understand that this unresolved issue is the reason why he is considered to be a medium risk of re-offending.

94. Hopefully, the period of enforced abstinence that he is currently experiencing may go some way to providing him with a platform to seek professional intervention and at least dramatically reduce his dependence on these drugs in the future. I do note there has been no problematic alcohol related offending since July 2018.

95. Additionally, the offender enjoys strong family support and has a good work ethic.

96. For these reasons I consider his prospects of rehabilitation are quite good and if he can address his substance abuse problems, his prospects of re-offending are low.

Comparable cases

97. In R v Blacklidge (unrep, 12/12/95, NSWCCA), Gleeson CJ said:

It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.

At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. [Citations omitted.]

Use of statistical data

98. Statistical data on sentencing for manslaughter 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].

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

R v Kerr [2004] NSWSC 75

100. In the matter of Kerr, the offender and the deceased were strangers. The offender was convicted after trial. He had approached the victim after they had alighted from a train onto the platform of Redfern Station and asked the deceased, “What the fuck are you staring at?” as he was physically restrained by two women accompanying him.

101. The victim got up from his seat, walked to the edge of the platform, he looked in the direction of the city, most likely to check if a train was coming, and jumped down onto the track. He turned to look at the offender and did not see the approaching train. The two women accompanying the offender shouted a warning, the train driver sounded a horn, the victim could not get back on the tracks in time and was hit by the train and died almost instantly.

100. Kirby J found the actions of Kerr to be an assault, engendering a well‑founded apprehension of an imminent physical violence. He noted the platform’s narrowness, elevation and proximity to railway tracks and that it was reasonable and unsurprising that the victims thought to escape and avoid the offender. The offender was seriously affected by alcohol at the time, he was only 17 years old at the time and otherwise of good character. His prospects of rehabilitation were regarded as very good. He was sentenced to three years imprisonment with a non-parole period of 12 months.

R v Paterson; R v O’Brien [2020] NSWSC 221; Paterson v R [2021] NSWCCA 273

103. In the matter of Patterson and O’Brien, the deceased had an altercation with the offender’s Patterson and O’Brien outside a club. The deceased had consumed a large amount of alcohol and had been escorted out of the club for being aggressive. He had several altercations with security at the club as they attempted to have him exit. The offenders, who were co-workers, had taken a courtesy bus to the club from a hotel where they had been drinking earlier in the evening.

104. Outside the club, the deceased and the offenders yelled at each other, O’Brien took his shirt off. Both the offenders attempted to punch the deceased who ran away, appearing frightened as they chased him down the road. The deceased tried to flag down several cars for help as they drove past. O’Brien punched him in the face and he fell to the ground but remained conscious. Patterson kicked him twice in the head while he was lying on the ground, he fell into unconsciousness as a result.

105. He was unconscious in the bicycle lane of the road, his head towards the middle of the road, his feet facing the curb. Moments after the assault, he was hit by a car that was unable to swerve and he was killed. In accordance with the principles of joint criminal enterprise, O’Brien and Patterson were held responsible for the actions of each other. Both of them pleaded guilty. It was agreed that O’Brien did not anticipate Patterson would kick the deceased or stomp on his head, that he knew the deceased did not want to fight him, that he punched the deceased to the head and left him on the road and heard the car strike him.

106. Upon learning that the deceased had died, O’Brien apologised to the deceased’s uncle. O’Brien was considered to be remorseful and had accepted responsibility for his conduct. At the time of the offending, he was on parole for a prior drug matter, but had no violent offences on his criminal history. He had pleaded guilty once the charge had been amended from murder to manslaughter and after he had apologised to the deceased’s uncle. He was given a 15% discount. He was 28 years old at the time. He was sentenced to serve a non-parole period of five years and six months and a period on parole of three years, so an overall sentence of eight years with a non-parole period of five years, six months.

107. It was agreed that Mr Patterson’s conduct was an unlawful and dangerous act that had made a substantial contribution to the death of the deceased, but fell short of an intention to inflict grievous bodily harm. The objective seriousness of his actions were regarded as extremely high and the sentencing judge found that his conduct sat “if not in the highest category of manslaughter, then not much below it”.

108. He had a history of offending and a history of violence; he was on parole when the offence occurred. He received a 25% discount for his guilty plea. He had a difficult upbringing with a history of physical abuse and depression. He was diagnosed with attention deficit hyperactivity disorder. He was not sorry and was not the subject of a finding of special circumstances. He was 35 years of age at the time of the offence. His sentence was reduced by 25% for his early guilty plea and, after a severity appeal, he was sentenced to serve a term of imprisonment of 12 years with a non-parole period of nine years.

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

110. Two cases do not provide a range and none of the above cases were that useful. What can be concluded is that this case is more serious than Kerr, given that offender’s youth and limited interaction with the deceased, and less serious than Paterson and O’Brien, given that both offenders struck or kicked the deceased and it was clearly their actions that reduced the victim to unconsciousness whilst he was lying on the roadway. Paterson had a very poor criminal record, including for violence, together with childhood disadvantage and a cognitive impairment. The sentences imposed were reduced by 25%.

111. It was accepted by both parties that no sentence other than imprisonment was appropriate. I have reached this conclusion as well.

112. In reaching a decision about the length of the non-parole period, I have decided 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

Special circumstances

113. Mr Franklin’s PTSD will likely make his experience of custody more difficult than it would normally be. He has not previously served a term of imprisonment and his lifelong dependence on alcohol and illicit drugs mean that he will need a lengthy period of supervision on release. For these reasons I have found special circumstances.

Commencement date

114. The offender entered custody on 30 May 2024 and the sentence will commence on that date.

Orders

115. Mr Franklin is convicted and sentenced to imprisonment made up of a non-parole period of 3 years dating from 30 May 2024, with an earliest date of release of 29 May 2027, with a balance of term of 2 years 6 months.

116. The whole sentence will have been served on 29 November 2029.

117. I direct that Ms Knight’s report dated 17 July 2024 be forwarded to the CEO, Justice Health.

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Decision last updated: 05 February 2025