R v Franklin

[2000] QCA 369

COURT OF APPEAL

PINCUS JA
MUIR J
JONES J

CA No 149 of 2000

THE QUEEN

RUSSELL JEFFREY FRANKLIN Applicant

BRISBANE

..DATE 12/09/2000

JUDGMENT

PINCUS JA: In this application it appears that the applicant has not reached the category of being incorrigible, by any means. He seems to have some difficulty with slowness.

A point taken on his behalf is that the three years suspension may have an ill-effect, in the sense that past history suggests that, at least without guidance, he may very well come before the Courts and have to serve out the rest of the suspended sentence, the three year period being a fairly long time in his life.

It has been argued by Mr Rafter on behalf of the applicant that a more suitable treatment of the matter would involve a two year probation order, rather than three years' suspension, the idea being that in this way he will have more hope of getting through the next period of his life without offending further.

The difficulty I have had with the matter, although I find Mr Rafter's suggestion attractive, is that the suggestion that the sentence imposed below was manifestly excessive may seem difficult to support. On the whole, however, and not without some doubt, I have formed the opinion that that test is satisfied.

The orders will therefore be, application granted, appeal allowed; the sentences are confirmed except the sentence with respect to dangerous operation of a vehicle.
On that count, that is dangerous operation of a vehicle, the sentence imposed below will be set aside and in lieu it will be ordered that the applicant serve four months imprisonment and the Court will make a probation order for 2 years on the terms set out in section 93 of the Penalties and Sentences Act 1992, to which is added that the applicant must report to an authorised Corrective Service Officer at Ipswich within 48 hours of release from prison.

...

PINCUS JA: The disqualification from holding or applying for a driver's licence imposed by the learned sentencing Judge will stand.

MUIR J: I agree.

JONES J: And I agree with the reasons for the presiding Judge and the orders proposed.

PINCUS JA: That will be the order.

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CaseChat Overview and Summary

In the case of R v Franklin, the applicant, Russell Jeffrey Franklin, appealed against a sentence imposed by a lower court. The primary nature of the dispute was the length of the suspension of the applicant's driver's license, which was a part of his sentence for dangerous operation of a vehicle. The case was heard by the Court of Appeal in Queensland, with Pincus JA, Muir J, and Jones J presiding.

The legal issues before the court were whether the sentence imposed by the lower court was manifestly excessive and whether a more suitable alternative, such as a two-year probation order, would be more appropriate. The applicant's counsel argued that the three-year suspension might lead to further offending, as the applicant had a history of reoffending when not under guidance. The court was required to determine if the sentence met the threshold of being manifestly excessive and if an alternative sentence would be more suitable.

The court found that while the suggestion made by the applicant's counsel was attractive, it was difficult to support the argument that the sentence imposed below was manifestly excessive. However, the court ultimately decided that the test for a manifestly excessive sentence was satisfied. Consequently, the court allowed the appeal, confirmed the sentences except for the one related to the dangerous operation of a vehicle. In place of the three-year suspension, the court ordered the applicant to serve four months imprisonment and imposed a two-year probation order with additional conditions. The disqualification from holding or applying for a driver's license was upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established