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

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.
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.
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…

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 356
Case: [2024] NSWDC 356
Decision Date: 29 May 2024

CaseChat Overview and Summary

In the case of R v Franklin, the defendant was convicted and sentenced for engaging in sexual intercourse with a child aged between 10 and 14 years and for possessing child abuse material. The case was heard and determined by the relevant court, which rendered its judgment on 25 May 2023. The court was required to address the sentencing of the defendant, who had pleaded guilty to several charges. The court imposed an aggregate term of imprisonment of three years, with a non-parole period of two years, effective from 25 May 2023 until 24 May 2025. The court determined that special circumstances existed.

The primary legal issue before the court was the determination of an appropriate sentence for the defendant's crimes. The court needed to consider the nature and seriousness of the offences, the culpability of the defendant, and any relevant aggravating or mitigating factors. Additionally, the court had to decide on the appropriate non-parole period, which is the minimum time the defendant must serve before becoming eligible for parole. The court also needed to consider the indicative sentences for each offence and the discount applied to the plea count.

In reaching its decision, the court thoroughly examined the facts of the case and the applicable sentencing principles. The court found that the offences were of significant gravity, involving the exploitation and abuse of a child. The court also took into account the defendant's guilty plea, which resulted in a discount to the sentence for the plea count. The court considered the defendant's background and any relevant mitigating factors but ultimately found that the seriousness of the offences warranted a substantial term of imprisonment. The court determined that an aggregate sentence of three years, with a non-parole period of two years, was appropriate. The court further found that special circumstances existed, which justified the imposed sentence.

The final orders of the court included the conviction and sentencing of the defendant, with an aggregate term of imprisonment of three years and a non-parole period of two years. The court did not take any action on the breaches of the community correction orders. The court's decision was based on the nature and seriousness of the offences, the culpability of the defendant, and the applicable sentencing principles.

Orders

Orders of the court

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.

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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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