R v Franklin

[2024] NSWDC 356

District Court

New South Wales

Medium Neutral Citation:

R v Franklin [2024] NSWDC 356

Hearing dates:

4/3/24-8/3/24, 17/5/24, 29/5/24

Date of orders:

29/5/24

Decision date:

29 May 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 3 years with a NPP of 2 years (25/5/23-24/5/25). I find special circumstances.

The indicative sentences are:

Trial count 1 Sexual intercourse 10-14 years – 2 years 10 months with NPP 1 years 10 months.

Trial count 2 Possess child abuse material – 10 months

Plea count 1 on indictment dated 14/5/24 – 9 months (10 percent discount taken into account).

I take no action on the breaches of the CCOs.

Catchwords:

Crime – Sentence – Sexual intercourse with child 10-14 – Possess child abuse material

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

BP v R [2010] NSWCCA 159

Bugmy v The Queen [2013] HCA 37

Field v R [2020] NSWCCA 105

R v Gavel [2014] NSWCCA 56

R v Gray [2018] NSWCCA 241

R v Hutchison [2018] NSWCCA 152

R v Lau [2022] NSWCCA 131

R v McClymont (unreported, NSWCCA, 17 December 1992)

TM v R [2023] NSWCCA 185

Category:

Sentence

Parties:

NSW DPP – Crown
Jayden Franklin - Offender

Representation:

Mr D Waldmann for Crown
Ms K Hogan for Offender

File Number(s):

22/226907

Publication restriction:

Statutory non-publication of the identity of the complainant

remarks on sentence

1. The offender stood trial on an indictment containing two counts in the District Court at Parramatta before a jury of 12 from 5 March until 8 March 2024, on which latter date the jury returned guilty verdicts on both counts. The offender must therefore be sentenced in relation to those two counts.

2. Count 1 is an offence of having sexual intercourse with a child above the age of ten but under the age of 14 years. The maximum penalty for that offence is 16 years' imprisonment, and a standard non parole period of seven years is specified. Count 2 is an offence of possessing child abuse material and the maximum penalty for that offence is ten years' imprisonment.

3. In addition, on 17 May 2024 the offender pleaded guilty to an additional offence, being one under s 17(1) of the Child Protection (Offenders Registration) Act 2000, that being an offence of failing, without reasonable excuse, to comply with reporting obligations under that Act. The maximum penalty for that offence is five years' imprisonment and/or a substantial monetary fine. The maximum penalties to which I have referred and, where applicable, standard non parole period are of course important guideposts in this sentencing exercise. The offender is not entitled to any discount for any plea of course on counts 1 and 2, however he is entitled, as agreed, to a discount of 10% in relation to his plea of guilty on what I will call the count 3 offence, which is the additional offence that is on the indictment dated 14 May 2024.

FACTS

4. Turning then to facts. The factual basis on which the offender is to be sentenced is for me to determine, based on the evidence at trial, at least in relation to the trial matters. Any matters in aggravation must be proved beyond reasonable doubt, while matters in mitigation need be proved only on the balance of probabilities.

5. The Crown has provided a suggested summary of the relevant facts from the trial, along with additional facts agreed that are relevant to count 3. With the exception of para 10 of that document, it was accepted on behalf of the offender that it provides an accurate summary of the relevant evidence. In relation to counts 1 and 2 and using that document as an aid, I find the following facts.

6. The victim, who I will refer by the initials GS, was born in August 2008 and was aged 13 at the time of the count 1 offence. On the morning of 22 July 2022, the victim travelled to the Liverpool area from the Hunts Hotel in Casula where she had stayed the previous night with her uncle Jarrod and two friends. Upon arriving in Liverpool, the victim saw her Uncle Jarrod, another male and the offender in the vicinity of Liverpool Railway Station. The victim approached her uncle and said words to the effect of, "Who are these faggots you're with?" or something like that. After this, the group walked to the railway station, and at about 10.07am they boarded a train bound for the city. Paragraph 10 of the Crown's factual summary asserts that at some stage the victim and the offender had a conversation about their respective ages. However, there is a dispute about the offender's belief concerning the age of the victim at the time of the sexual intercourse. The offender, in his evidence to the jury, said that he believed the victim to have been 18 years old, that he had seen her with a form of identification consistent with that age, and that she had been admitted into a hotel where she had been drinking alcohol. It was submitted that while the jury found the offender guilty, this might not mean that it disbelieved his evidence in this regard, but that the verdict could have been based on a finding that while he may have honestly held that belief, the jury concluded that it was not a reasonable belief.

7. Having reviewed the evidence, I do not accept that the offender had a genuine belief that the victim was 18 or close to 18. The victim gave firm and consistent evidence that prior to the sexual intercourse, there had been a discussion with the offender about their respective ages and that she had told him that she was 13. Furthermore, her appearance, as shown in trial exhibit 1 and in audio video material that was admitted in evidence at the trial, is consistent with her being aged around 13 at the relevant time. I am therefore satisfied beyond reasonable doubt that the offender had an actual belief that the victim was aged around 13 and under 14 at the time of the sexual intercourse offence. I note that my conclusion in this regard is given further support by the Crown's tendency evidence set out in trial exhibit 9 supporting the conclusion that the offender had a sexual interest in young girls, including girls aged under 14.

8. At about 6pm on 22 July 2022 the group comprising the victim, the offender, Jarrod and the unknown male, left the city and travelled to the Casula area. At some time later that day, the group attended the Jolly Knight Motel in Casula where the offender paid $95 cash for a room. Once inside the room, the offender and Jarrod consumed some alcoholic drinks while the victim fell asleep on one of the beds for a short time. Around midnight, the unknown male left the motel. At some stage during the night, the victim awoke to Jarrod urinating in the room due to his level of intoxication. The victim then took a blanket from the bed and moved to the floor where she fell asleep for about 30 minutes. The offender joined her on the floor, and sometime after this, the offender had penile vaginal sexual intercourse with the victim. The Crown case is that this sexual intercourse occurred over a period of about 45 minutes, while the offender said that it lasted about ten minutes. I will return to this factual question when commenting on the objective seriousness of the offence.

9. During their time in the motel, the victim and the offender took some photographs and videos together. One of these depicted the offender lying on his back on a bed without a shirt on his upper half, and with the victim straddling him, the victim wearing only underwear being a bra and pants. At some stage after the sexual intercourse, the victim went back to the bedroom area of the motel and saw the offender on the bed. The victim took a photograph of the offender and herself on the bed which was almost identical to the one taken earlier in the night to which I have just referred, except that in this one the two of them were clothed.

10. Later that morning after leaving the motel, the victim returned home to collect some personal items and then went to an address in Carramar, where the offender was residing. The victim stayed at that address for several days while the offender was there.

11. The offender was arrested on the morning of 2 August 2022 at the Carramar address. At the time of his arrest, police seized a mobile phone. An analysis of that phone revealed numerous text messages between the offender and the victim. Furthermore, police found on the phone a photograph of the offender and the victim lying on a bed at the Jolly Knight Motel. That photograph showed the offender lying on his back without a shirt on, with the victim, wearing only underwear, straddling his lower body, which is the photograph to which I have earlier referred being the first one taken in time. A copy of that photograph was exhibit 3 in the trial. That photograph was one that had been taken by the victim on her own mobile phone and then sent to the offender. That photograph, which amounted to child abuse material, depicted a child engaged in a sexual pose or sexual activity and thus fell within category 2 of the INTERPOL Baseline categorisation scale. The offender's possession of this image is the offence in count 2 of the indictment, namely one of possessing child abuse material.

12. The facts that I have recited above relating to the offender's contact with the victim formed the basis for the count 3 offence of failing to comply with reporting obligations in relation to contact with a child. That obligation arose from the fact that on 3 March 2022 the offender was convicted in the Local Court of an offence of possessing child abuse material. After that conviction, the offender was notified by the New South Wales Police Child Protection Registry of his status as a registrable person with the length of his reporting obligations being eight years. The offender had in June 2022 signed documents acknowledging these reporting obligations and had declared his primary residence, the existence of a tattoo on his left hand, and contact that he had with his son. However, the offender at no stage reported to police his contact with the child victim GS. In failing to doing so, he committed the offence to which he has pleaded guilty which is set out in the indictment dated 14 May 2024.

OBJECTIVE SERIOUSNESS

13. Turning then to objective seriousness of the various offences. Firstly, the maximum penalties for the offences before the Court indicate that they are of quite some potential seriousness. That is especially the case with count 1 sexual intercourse with a child aged under 14 which carries a maximum penalty of 16 years' imprisonment and is also subject to a standard non parole period.

14. Many observations have been made in recent years by the courts in relation to the seriousness of sexual offences involving children. These have included comments such as those noted in the decision R v Gavel [2014] NSWCCA 56 where the Court stated that:

"This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives... Sexual abuse of children will inevitably give rise to psychological damage."

15. The Court also noted the comments of Baroness Hale of Richmond in an English case where her Honour referred to, "Long term and serious harm, both physical and psychological, which premature sexual activity can do," as being one of the aspects of the seriousness of these types of offence.

16. The offence in count 1, as I have said, is one of sexual intercourse with a child aged under 14. One relevant matter is of course the age of the particular child. As a general rule, the younger the child within the age range referred to in the offence provision, the more serious the offence. In this matter the victim was aged 13 years 11 months so she was only just under the 14 year upper age limit for this type of offence. The offender on the other hand was just over 18 years old at the time. The difference in age therefore was not as great as in many matters that come before the Court. I make this comment because, generally speaking, an offence will be more serious where the age differential is large.

17. Another relevant matter is the nature of the sexual intercourse which in this case was penile penetration of the victim's vagina. There is no strict hierarchy of sexual intercourse in terms of seriousness, and of course each case will depend on its particular circumstances. The duration of the sexual intercourse was a matter of dispute, as I have earlier noted, with the Crown case suggesting a period of about 45 minutes, and the evidence of the offender being that it was about ten minutes. Given that aggravating matters must be established beyond reasonable doubt, I will proceed on the basis that the sexual intercourse took place over a period of about ten minutes. However, even on this basis, it is clear that this was not a brief or fleeting offence. As noted by Bellew J in R v Lau [2022] NSWCCA 131 at para 82:

"Although the time over which the individual instances of offending took place may not have been an entirely irrelevant consideration, it was of limited significance. It has been observed by this Court on numerous occasions that offending of this nature is capable of having profound, long term, and generally deleterious effects upon victims, both physically and psychologically."

18. I am also satisfied that the sexual intercourse was "non oppositional" in the sense that the victim effectively went along with it, and there was no violence, threats or intimidation. However, while these aggravating features are not present, the fact that the sexual contact was non oppositional does not mitigate the offence. As was said in R v McClymont (unreported, NSWCCA, 17 December 1992):

"...one has to bear in mind that the purpose of the law is to protect such a person from that kind of activity. It is to protect her from, in a sense, her willingly participating in such activities... The law requires that protection be given to young persons even against their will."

19. On the other hand, there is no evidence that the offence in this particular matter involved any real planning. Rather, I conclude that it was relatively spontaneous. Also there is no evidence that any injury or harm was substantial, beyond that inherent in an offence of this nature involving a child.

20. Having regard to these matters and all of the circumstances, I assess the objective seriousness of the count 1 offence as being towards but not within the low range of objective seriousness.

21. Turning then to count 2. Relevant factors in the assessment of the objective seriousness of an offence of possessing child abuse material were set out in the well-known decision of R v Hutchison [2018] NSWCCA 152. I make the following observations about the factors referred to in that case insofar as they are present in this case.

22. The offence involved an actual child who was in fact 13 years of age. The image involved very limited nudity in that the victim was wearing underwear, and the image was not unduly focused on her breasts or genital area and did not display her face. The sexual nature of the image was limited effectively to the positioning of the victim over the offender in a sexually suggestive pose. There was only a single image, which had been sent unsolicited to the offender by the victim, and it was a photo that had been taken by the victim herself. There is no real evidence as to the offender's purpose in possessing the image and, although I am satisfied that he had a sexual interest in the victim and in young girls around her age, on balance I consider that the image was likely in his possession simply by reason of it having been received on his phone where it remained. There is no suggestion that the offender intended to disseminate the image by passing it onto others, and there is no evidence of planning or of any exchange of money. In my view this offence sits within the low range of objective seriousness.

23. The count 3 offence involved failing to advise police of the offender's contact with a child. The contact was not brief but took place from 22 July 2022 after which the victim stayed at the offender's residence for several days. The contact also involved the act of sexual intercourse which is the subject of count 1. I have however taken care not to double count this aspect, given that the offender is to be sentenced for that separate offence. The subject child who was aged just under 14 was considerably younger than 18 which defines the meaning of a "child" in the relevant legislation. The contact also involved the exchange of various text messages between the offender and the victim. In my view it is a relatively serious example of this type of offence and comfortably above the low range, although below a mid-range offence. While not relevant to the objective seriousness of any of the offences, it is an aggravating feature on sentence that the offender was at the time of the offences on conditional liberty. This is a matter that impacts upon considerations of punishment, deterrence and protection of the community; see Field v R [2020] NSWCCA 105.

SUBJECTIVE MATTERS

24. Turning then to subjective matters relating to the offender himself. He is now aged 20 and was aged 18 at the time of the offences. His criminal history does not assist him. The offender's subjective case has been placed before the Court by means of a psychological report and the Sentencing Assessment Report, as well as a structured case note from a Correctional Centre psychologist.

25. The psychological report tendered on the offender's behalf indicated that she had interviewed and assessed the offender by audio visual link, and had also reviewed a volume of written material relating to the offender's childhood and general background. She notes that it is reported throughout the documents that the offender has a tendency to make up or embellish stories. She says however that this is more likely to be confabulation where a person produces false memories rather than deliberate lies. By reason of these observations, however, I have examined with some care any matters relied upon in mitigation where they are based on self report from the offender.

26. Having said that, there is important independent evidence supporting the conclusion that the offender's childhood and developmental years were seriously impacted by disruption, neglect and abuse. The psychologist notes at para 6.12 of her report that DCJ records indicate that between 2007 and 2021, there were 32 risk of significant harm reports relating to the offender. These were based on concerns for physical harm, sexual assault, neglect, alcohol abuse by a carer, excessive discipline, and inadequate nutrition. The risk of harm reports thus commenced when the offender was only about four years old. The offender was assumed into care on 4 June 2009 when he was aged only about six years. However, the risk of harm reports relating to him continued for many years after this. This suggests not only that the offender was subjected to a traumatic and unstable family upbringing as a very young child, but that these problems continued throughout his childhood and into his adolescence even after he was taken into State care when aged about six.

27. Having regard to this evidence and the entire contents of the psychological report, I accept the psychologist's conclusion that the offender has a long history of developmental trauma, and that he was exposed to significant sexual and other abuse and neglect in childhood. This is a matter that is relevant to his moral culpability for his offending and a matter that engages the principles discussed in the High Court of Australia decision in Bugmy v The Queen [2013] HCA 37, to which I will later make some further reference.

28. The psychologist also concluded that the offender meets the criteria for Post Traumatic Stress Disorder and that he has previously been diagnosed with Attention Deficit Hyperactivity Disorder. Although the psychologist was unable to administer any IQ tests, she nonetheless concluded, based on the available material, that the offender has a mild to moderate intellectual disability and that there is some possibility that he has Autism Spectrum Disorder. While there is some uncertainty about these latter two diagnoses, I accept that the offender is, largely by reason of his traumatic background which has left him with PTSD, a person with multiple challenges which impact severely on his ability to interact with others and to behave appropriately in the community.

REMORSE

29. On the topic of remorse, I make the following observations and findings. The offender admitted to the author of the Sentencing Assessment Report that he had not confirmed the victim's age and should have made further inquiries, but also made assumptions that she was over 16. While this does not point to any remorse, the offender did accept that the court proceedings would have been difficult for the victim. Given this and the offender's indication that he is willing to undertake interactions to address his sex offending, I accept that there is a limited degree of remorse in this case.

REHABILITATION AND RISK

30. I make the following observations about prospects of rehabilitation and future risk. The Sentencing Assessment Report states that the offender's risk of sexually reoffending is well above average and that his overall risk of reoffending is high, while the psychologist Ms De Santa Brigida suggests an overall moderate risk of future sexual offending. I note further however that the offender's custodial record includes a number of offences committed whilst in custody. I do not suggest in making that comment that any of them however were sexual offences. Taking all of this into account, as well as the offender's criminal history and minimal social supports, I am of the view that he remains an appreciable risk of reoffending in sexual and other ways. I am unable to make a positive finding about his prospects of rehabilitation.

YOUTH AND MORAL CULPABILITY

31. Another factor that I have taken into account and which is of some importance is the offender's relative youth. As I have said, he is only now 20 years of age and he was 18 at the time of the offences. As was said by Hodgson JA in BP v R [2010] NSWCCA 159 at para 4:

"Considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution."

32. His Honour went on to say at para 5, "In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties." It has been observed in other cases of course that this aspect of development is more marked in males than it is in females. As I have indicated, the offender's relative youth is important because it means that greater focus needs to be given to rehabilitation and less weight to other factors such as punishment, general deterrence and retribution. A person's youth or relative youth may also reduce that person's moral culpability; see Yehia J in TM v R [2023] NSWCCA 185. I am satisfied that in this case the offender's moral culpability is reduced to some degree by reason of his relative youth at the time of offending.

33. However, of course I need to balance these aspects against the importance of the protection of the community. I earlier made reference to the decision of the High Court of Australia in Bugmy. I accept that the principles discussed in that case have application in this sentencing exercise. While none of the offences today before the Court involved a sudden loss of control, the offender's deprived and abusive background is such that in my view it has left him with a compromised ability to make wise choices and to think through the consequences of his actions. This further reduces to some degree his moral culpability and also has the result of reducing to some degree the importance of general deterrence. However, and as I have earlier noted, I still need to balance these considerations against the importance of personal deterrence and community protection which are both of importance in my view in this case.

DETERMINATION

34. In determining the ultimate sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I do not intend to set out the terms of that section. As I have said, although I have taken into account the Bugmy type factors and also the offender's relative youth, I remain of the view that personal deterrence is of significant importance, as is the protection of the community, and that all of the other factors in s 3A remain of some importance as well.

35. In terms of the s 5 threshold in that Act, it was argued for the offender that this was not crossed in relation to the count 2 and count 3 offences. If those two offences were looked at in isolation, then this submission would have some greater merit. However, having regard to all of the circumstances, which includes the fact that these offences were committed very shortly after the offender was released on parole, and having regard to the offender's questionable prospects of rehabilitation, the importance of personal deterrence and community protection as well as the fact that I will be imposing a sentence of imprisonment for the count 1 offence, I am satisfied that a term of imprisonment is the only appropriate outcome in relation to all offences.

36. I intend to impose an aggregate sentence. In determining the ultimate aggregate sentence, I have given close consideration to totality principles, in other words, the importance of ensuring that the ultimate sentence is not inappropriately crushing but that it adequately reflects the overall criminality involved in the offences and gives appropriate weight to the various purposes and principles of sentencing. This involves, among other things, assessments about the degree to which the penalty for any offence should be cumulative upon or concurrent with that imposed for other offences. In applying totality principles, however, I must try to avoid the perception that a discount is being given for multiple offending.

37. The offences in counts 1 and 2 arise out of the same landscape of facts in the sense that the image that involved child abuse material was created around the same time as the commission of the count 1 sexual intercourse offence. In these circumstances I am of the view that the indicative sentence that I would have imposed for the count 1 offence largely incorporates the appropriate punishment for the count 2 offence, and any notional accumulation ought therefore be very minimal. In my view, however, there should be a degree of notional accumulation in relation to the count 3 offence. I come to this view because although that offence is based in part on the contact between the offender on 22 July 2022 when the sexual intercourse offence took place and when the child abuse material image was created, the offender's failure to comply with his reporting obligations continued beyond that day and for several days later while the victim stayed at his residence. It therefore represents to some degree a separate episode of offending.

38. I have made a finding of special circumstances for adjusting to some degree the ordinary ratio between head sentence and non parole period. I have made this finding based upon the offender's relative youth, his intellectual and psychological issues, and the risk of institutionalisation. I earlier made reference to the offender's moral culpability being reduced to some degree by reason of his relative youth and also by reason of Bugmy factors. I have also, in making those findings, had regard to the evidence of the psychologist to the effect that the offender has a mild to moderate intellectual disability. That is also of course a factor which to some extent reduces the importance of general deterrence.

39. I have given careful consideration to the question of to what extent the commencement date for the sentences ought to be backdated. The offender was arrested on 2 August 2022, however, his period in custody since that time has not been due solely to the offences before the Court because on 14 September 2022 the State Parole Authority revoked his parole effective from 29 July 2022 in relation to an existing sentence for assault, assault occasioning actual bodily harm, and intimidation. That sentence did not expire until 13 December 2022. Also, the offender was until 25 May 2023 bail refused in relation to offences of failing to comply with reporting obligations. I have a discretion to exercise in determining the date on which this new sentence should commence. The Crown argued that it should commence on 25 May 2023, while counsel for the offender suggested it should be backdated to at least 13 December 2022 based partly on the argument that the revocation of parole was solely due to the offences now before the Court. Having examined the Parole Authority's "order revoking a parole order" dated 14 September 2022, I do not accept that the offences now before the Court were the sole reason for parole revocation, because the document refers also to the breach of reasonable directions concerning participating in treatment and related activities. Also, while there is always the possibility, as noted by Hamill J in R v Gray [2018] NSWCCA 241, that an offender may not be required to serve the entire remaining term of imprisonment for revocation of parole, it seems to me that in this case it is unlikely that the offender's parole would have been restored, given the relatively short period of just over four months between its revocation and the expiry of the term. Furthermore, the offender's custodial history records that between August 2023 and April 2024, he has committed various institutional offences whilst in custody. This does not in my view provide support for a conclusion that the offender should be afforded additional leniency by backdating the current sentence so as to take into account time served in relation to other matters. I intend therefore to direct that the sentence commence on 25 May 2023.

40. Given that I am imposing an aggregate sentence, I am required to set out the indicative sentences that would otherwise have been imposed, and those indicative sentences are as follows. These are not the ultimate sentence, that ultimate sentence will be announced clearly in a moment.

41. The indicative sentences are as follows. For count 1, a period of imprisonment for two years ten months, and I specify a non parole period of one year ten months. For count 2, a period of imprisonment of ten months. For count 3, after the discount of 10%, a period of imprisonment of nine months.

42. Instead of those, I impose, having regard to totality principles, an aggregate head sentence of three years' imprisonment. I specify a non parole period of two years. Each of those will date from 25 May 2023. The head sentence therefore will expire on 24 May 2026 and the non parole period on 24 May 2025.

43. Mr Crown, Ms Bahsa, anything to raise about any of those orders?

44. WALDMANN: No, your Honour.

45. BAHSA: No, your Honour.

46. HIS HONOUR: Thank you. Ms Bahsa, you no doubt will speak to your client and explain all of that if needs be?

47. BAHSA: Yes, I will, your Honour.

48. HIS HONOUR: Thank you. Court will adjourn.

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Decision last updated: 19 August 2024