R v Franklin, Craig

[2009] NSWDC 313

CITATION:	R v Franklin, Craig [2009] NSWDC 313
HEARING DATE(S):	23/06/2009
JUDGMENT DATE:	18 September 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	1.Common Assault – Convicted - Sentenced 6 months fiexed term. 2.Take and Detain without consent – Convicted - Sentenced 24 months fixed term. 3.Sexual Intercourse without consent in circumstances of aggravation – Convicted - Non Parole Period 4 ½ years. Balance of term 3 years. 4.S. 166 CPA – AOABH – convicted sentenced 6 months fixed term.
CATCHWORDS:	Criminal Law - Sentence - after trial - Aggravated Sexual Assault (prior OABH) - detain for sexual advantage - common assaault - standard non parole considerations - domestic relationship - assault in circumstances where sexual advances rejected - detaining involved forced return to motor vehicle where sexual offence took place - non-consensual fellatio - passage of some hours between assault and sexual offending - offender well effected by alcohol for all offending - vulnerability in sexual assault discussed - assessed as falling in mid-range of seriousness - victim impact statement - purpose of - limitations to use of - strong subjective matters - prior good character - strong rehabilitation prospects - issues to be considered when applying Way's case.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80] R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Dunn [2004] NSWCCA 41 Alseedi v The Queen [2009] NSWCCA 185 Davis (1947) 75 CLR 409 at 416-417; per Latham CJ Davis (1962) 63 SR (NSW) 54 R v Way (2004) 60 NSWLR 168 Mulatto v Regina [2006] NSWCCA 282
PARTIES:	Regina Craig Andrew Franklin
FILE NUMBER(S):	2008/00011561
COUNSEL:	M Fox Crown Prosecutor Defence: I Barker Q.C. with P Kintominas

JUDGMENT

1. Craig Franklin graduated with BA Honours in philosophy in 1993. Ten years later he obtained his Master in Laws. The following year he graduated with a Diploma from the College of Law. He was admitted to the New South Wales Bar in June 2005. He set up his practice at Frederick Jordan Chambers. His arrival to the Bar was at the mature age of thirty-five.

2. Two years earlier he had met Tanya (not her real name) also a uni graduate working in human resources. A relationship developed; they shared accommodation. There were some tensions in the relationship. It took on some of the features of an “on-again-off-again” relationship with inappropriate behaviour coming from time to time from one party or the other. Some of that inappropriate behaviour within the relationship may well have had its origins in excessive alcohol consumption, at least so far as Franklin is concerned.

3. In the course of exploring the possibility of resuming the relationship, a weekend trip to the Canberra region was undertaken during Easter of 2007. During the course of this weekend Craig Franklin, who had never been in trouble with the law before, committed four criminal acts of violence upon Tanya.

4. He denied, and indeed still denies, he committed three of those acts. When arraigned in the Goulburn District Court in February of 2009 he pleaded not guilty to three indictable charges. After an eight-day trial the jury found him guilty of all three indictable offences. Today he is to be held accountable for those offences, together with the summary offence to which he earlier pleaded guilty. These offences reflect his criminal conduct during a twelve-hour period.

5. The charges are firstly on 9 April 2007 an assault upon “Tanya”; secondly, on the same date that he took the complainant without her consent and with the intent of obtaining an advantage; namely, sexual gratification, and thirdly that he had sexual intercourse with the complainant without her consent knowing that she was not consenting in circumstances of aggravation; namely, that immediately before the commission of the offence he did occasion to her actual bodily harm.

6. As sentencing judge it falls to me to determine a number of competing tensions as I strive to find the appropriate sentence for these offences committed by this offender harming this victim in our community, Gladue v The Queen [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offences before the court. I will also need to have regard to matters personal to the offender; that is, subjective matters. The starting point for such assessments requires me to make findings of fact from the evidence before the court relating to the offence and to the offender. My fact-finding task, at least in respect of the offence, necessarily requires me to find facts consistent with and reflective of the jury’s verdict. There is no obligation to find facts at either extreme of favourability or unfavourability to the accused.

7. In this case the contested evidence only fell from one witness for either side. It is clear from the jury verdict that not only did the jury reject the accused’s evidence, but it was satisfied beyond reasonable doubt of the complainant’s account; that is to say that it was both honest and accurate. That foundational finding by the jury should be reflected in my findings of fact. The offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly.

8. There will be technical questions relating in particular to whether a standard non-parole period should apply; if not, whether special circumstances should be found; the matter on the Form 1 and finally, of course, the ultimate term of imprisonment or other penalty to be imposed. None of these can be commenced until the primary facts are determined; what weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus, the protection of the community, will also have need to be determined, see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

The Facts
Count 1, the assault of complainant.

9. Franklin and Tanya had arrived at Rydges Eagle Hawk Resort about 8 April and had stayed overnight. The night of 8 April was a night where, so far as the court is concerned, nothing untoward occurred. The day of 9 April they spent viewing various places in Canberra. They returned after that to the Rydges Eagle Hawk Resort where they were staying. It is located on the New South Wales side of the ACT border. The couple had drunk at the restaurant; there was more drinking at the suite. In fairness to her, I should note the complainant was not as focused upon alcohol as was the accused; she had gone to bed at about 11pm. The accused continued to watch TV; sometime between 12.30 and 1 o’clock in the morning he came to bed. He made physical approaches to her consistent with indicating a desire for sexual activity. Her response was “No”.

10. From there matters deteriorated. He spoke dismissively to her; she told him to “fuck off”. There was ongoing abuse. She left the bedroom and used the sofa bed in the lounge room. He followed her. There were further exchanges. He returned to the bedroom in a heightened emotional state. She left the apartment to have a cigarette. He joined her. There were further heated words outside. He returned to the apartment. She followed shortly afterwards, returning to the sofa bed. He came to the bed saying further offensive things. I am satisfied she more than held her own in this heated discussion. He started to slap her several times, perhaps as many as five, to her face and head. She pushed him in the chest causing him to nearly lose balance. He began to leave but returned and resumed hitting her with an open hand.

11. The complainant estimates the whole episode lasted three minutes. If it lasted as long as that, most of it would have been occupied with verbal abuse. I do not accept the offender struck the complainant with an open hand more than say ten times. I am satisfied during this episode many disparaging and offensive comments were made by him towards her. I am satisfied when the criminal conduct happened Franklin was very well affected by alcohol, that he had consumed alcohol continuously since dinner, including the best part of two bottles post dinner.

Count 2, the second charge, taking without consent with intent of obtaining advantage; namely, sexual gratification.

12. At the behest of the complainant the couple left the resort to return to Sydney early the following morning. As they travelled along the Federal Highway, Franklin was still abusive towards her. He struck her several times. One of his blows dislodged the lens from her glasses. They had not travelled far when he directed her to turn left off the highway. He directed her to pull over and in effect park the vehicle on the offside of the road so that it was pointing back towards the highway. She turned off the engine and lights. She was hit again and told, “Get in the back seat.”

13. The complainant’s assessment of the situation is important. She assessed that the accused now intended to drive. She was concerned at his capacity to do so because of what she believed was his high level of intoxication from the prior nights drinking. She said, “Please, Craig, no, you can’t drive.” It should be remembered that the vehicle they were using belonged to her. The offender responded, “Just get in the fucking back seat.” She took the keys from the ignition, escaped the car, snatched her handbag from the back seat and started running towards the highway. She had made some fifteen to twenty metres; she was grabbed, turned around and pulled towards the car. She said, “I’m sorry, I just don’t want you to drive.” He was striding quickly. When they reached the car he pushed her towards the driver’s side rear door; “Get in”, he said. She opened the door, he slammed the door behind her, then made his way to the passenger door, entered the car and began to strike her to the face and head with closed fists. She sought to protect herself with her arms and hands shielding her face. She raised her left foot against his chest. Franklin told her, “Move your fucking foot or I’m going to kill you.” Terrified she moved her foot. He demanded that she perform fellatio. I cannot be satisfied beyond reasonable doubt when he ordered her into the back seat from the driver’s seat he had any sexual intent. Nor am I satisfied he had such an intent when he set off to capture her. But I am satisfied somewhere on the return journey of fifteen to twenty metres he formed the intent to have her fellate him and his forcing her into the back seat was for that purpose.

The third count, sexual intercourse without consent knowing she was not consenting in circumstances of aggravation.

14. The offender undid the top button of his pants and undid his zipper. He lowered his pants enough to expose his penis which at that time was flaccid; he told her to suck it. She said, “I can’t, I can’t, I don’t have any saliva.” He replied, “I don’t care, just suck it. I don’t want any of that shit you did last time, just sucking on my knob, put my whole cock in your mouth.” The complainant suffers from a condition that causes her to have difficulty making saliva. The complainant was also told to wipe her nose. The offender gave her water from a bottle he had.

15. She performed oral sex. As his penis became more erect he told her “to put it in, to put it all in” and pushed the back of her head onto his penis. She was unable to accommodate him, gagged and had difficulty breathing. She was told to remove her hands from his penis, thus exposing more of his penis for her mouth. Her head was again pushed onto the penis. She was unable to breathe, she took her head from the penis, her body was shaking, her face was hurting. He told her a second time he was going to kill her; he punched her to the head. There was blood on his knuckles. He told her “Lick the blood off.” As she exposed her tongue he dragged his knuckles across her tongue. He told her to return to the driver’s seat. He returned to the passenger seat and the car was returned to its journey along the Federal Highway.

Form 1 matter, assault occasioning actual bodily harm.

16. In respect of this matter the accused’s account is predicated upon a claim of no earlier offending conduct; the complainant’s account is predicated upon an account of several hours of ongoing violence. I am satisfied beyond reasonable doubt the complainant’s account is correct.

17. On the return journey to Goulburn the complainant stopped at Anderson VC Reserve to obtain some water. Apparently there was none available but she retrieved some Coke from the car boot and gave it to the offender who was then sitting on the passenger side of the vehicle. She returned to the driver’s seat; there was further verbal abuse which graduated to physical abuse. Franklin smacked the complainant a number of times. This physical assault was accompanied by demeaning comments. As a consequence of the slapping there was bruising to the complainant’s face.

Objective Criminality

18. The most serious offence before the court is the charge of sexual intercourse without consent in circumstances of aggravation. The circumstance of aggravation occurs in the course of taking and detaining the complainant with the intention of obtaining advantage. Although the offence of take and detain for advantage was rendered slightly differently to the jury, than I have taken it on sentence, I am satisfied the jury must have been satisfied beyond reasonable doubt that actual bodily harm was occasioned to the complainant before the commission of count 3. On more careful analysis, it is obvious the occasioning of actual bodily harm occurs as part of the taking and detaining offence; that is to say, the physical violence in addition to the sexual assault was not administered during the period covered by the sexual assault, that becomes obvious by virtue of the words of the charge.

19. The sexual assault was committed against the complainant by a person who had been in a domestic relationship with her. It was committed by one who had been sexually intimate with the complainant as part of that relationship, and indeed as recently as the prior night. Adams J speaking about domestic violence made comments that are well apposite to the present case. He noted in R v Dunn [2004] NSWCCA 41, a domestic violence case, two characteristics, the first being this:

“The offender usually believes that in a real sense what [he does is justified even that he is the true victim]”.

He made this further comment,

“That usually means that the victim never feels truly safe as a consequence, at least in any ongoing relationship.”

20. This offence constitutes a monumental exploitation of the offender’s physical power and dominance over a physically weaker human being. That unlawful exercise of physical power and dominance, at least so far as the sexual assault offence is concerned, began when he grabbed the complainant and physically dragged his ever-reluctant companion to the back seat of the vehicle. There was a callousness demonstrated by him in the unusual circumstances of this case. Her mouth was dry and her capacity to produce saliva was impaired. Water from a bottle was a most unsympathetic and ineffectual solution. Twice he forced his erect penis in beyond any comfort zone; indeed, to a point where she gagged and had difficulty breathing. The offender used the occasion to demean and humiliate the complainant.

21. Professor Starmer puts Franklin’s blood alcohol content somewhere between 0.124 and 0.267 millilitres per 100 millilitres of blood during the period 5.30 to 6am. Some support for a high reading is to be found in the complainant's evidence. It is to be remembered she was concerned that he was too drunk to drive when the car was first pulled over. Necessarily, there will be a lack of precision as to the degree of inebriation. Necessarily, the degree to which his cognitive abilities, demeanour, verbal responses, emotional ability and inappropriate aggression levels were impacted will also lack precision. Nonetheless, against a background of no other violence against women I am prepared to find all of these were significantly impaired during the period of his offending in and around the motor vehicle.

22. The take and detain offence was an offence that began when Franklin first began to return the complainant to her car and must have ended when she commenced to drive on. This is an offence that results in her being accessible and available for the sexual gratification. But the criminality of the 61J offence is limited to the period of time commencing after the actual bodily harm had been committed until she begins to drive on.

23. The Crown sought to argue the complainant was vulnerable. Necessarily, the nature of this offence is one whereby virtue of power imbalance an offender has his way with the victim; that is, exploits the vulnerability of the physically weaker victim. That is this case. But the complainant was not vulnerable in the sense of being physically fragile, such as the aged or physically disabled. Nor was she impaired by drug or alcohol or any mental condition. I do not regard the vulnerability that existed in being alone and physically weaker as constituting the sort of vulnerability captured in s 21A(2)(l) of the Crimes (Sentencing Procedure) Act.

24. Within a relationship that had been ongoing for three years, albeit with ups and downs, sexual intimacy, as experienced in the relationship, will necessarily mean the complainant was aware of and usually would have experienced the various sexual practices that excite the offender. That being so, the varying degrees of intimacy achieved within the experience of a normal sexual relationship by oral, vaginal and, if it be the case, anal penetration have less impact than they might have in cases where the offender and victim are strangers. It is not open to the defence to argue, nor as I recall did it seek to do so, that oral intercourse is less serious than penile- vaginal or penile- anal intercourse.

25. The parties drew my attention after submissions had been completed sometime last week to a Court of Criminal Appeal decision Alseedi v The Queen [2009] NSWCCA 185. In this case a passage from the remarks on sentence by Berman DCJ were referred to. His Honour said:

“I am satisfied the appropriate way of looking at the various forms of sexual intercourse is not to apply blanket determinations that one form is always more serious than another, but to look at all the circumstances in which the particular form of intercourse occurs. Thus, for example, while it may be thought that digital penetration will usually be less serious than other forms of sexual intercourse, that would not automatically be the case. In order to decide the seriousness of a particular act of intercourse much more needs to be looked at than the form of the intercourse.”

26. To his Honour’s remarks I would also add “although clearly the form of intercourse will necessarily be one of the matters taken into account”. Giles JA, Hidden and McCallum JJ agreeing, observed in respect of Berman DCJ’s remarks (absent my addendum),

“...the judge was correct to have regard to the circumstances of the particular offence rather than place the form of sexual intercourse in some kind of hierarchy. Forced fellatio is quite capable of achieving or exceeding the midpoint of objective seriousness. The physical force used by the appellant cannot correctly be described as minimal and failure to persist when he appeared to have achieved his objective of stimulation did not lessen the seriousness of the offence...”

at para 61.

27. This offence demonstrates a violent instance of penile oral intercourse. For the purposes of assessing the criminality of the sexual assault offence, I take into account adverse to the accused that it was done in course of criminal conduct, namely the taking of the complainant against her will back to the car. I also take into account that the offence was committed in the context of earlier assaults reaching back to the early hours of the morning. During the period of sexual assault his conversation was markedly aggressive culminating in a threat to kill her. The impact upon her was such as to terrify her; her body was shaking. The humiliation of her included having him wipe his bleeding knuckles clean against her outstretched tongue. I do not aggravate the offence on the account of the objective criminality of the two other offences I have just referred to. Each must be separately assessed and weighed when the question of totality comes into play its part in the sentencing outcome, but it is appropriate to have regard to the context in which this offence was committed.

28. The Crown submitted the offence fell just above a midrange of seriousness. The starting point is the hotel room where the violence started. That violence was not violence to achieve the particular sexual assault that attracted the standard non-parole period. Indeed, the particular sexual assault was not even contemplated at that stage on anyone’s case.

29. While those background circumstances may be taken into account, as I have indicated in context as matters that may aggravate the offending, it is important to recognise the parameters of the 61J offence. For example, the Crown submitted that it was clearly the offender had the intent of using an isolated location for sexual purposes when he ordered the complainant off the Federal Highway. While I can accept the possibility that that may well be so, I cannot be satisfied beyond reasonable doubt of that.

30. Where a couple had been arguing and violence has been displayed, and given the early hour of the morning and his drunken condition, there may well be other explanations equally feasible. For my part I am satisfied beyond reasonable doubt that at some time when he was returning the complainant to the car, he had an intent to sexually assault her. I do not rule out that he was aroused in some way by the struggle between the complainant and he on the return to the car when she bolted. I am satisfied the isolation, the use of force upon a non-compliant female and the availability of a back seat were factors that manufactured an intent to sexually abuse her.

31. Again, this finding impacts upon the criminality. Had he chased after her for the purpose of having sexual intercourse, the offence would have been more serious; had he left the highway for that purpose, it would have been more serious still. His chasing after her may well have been because it was her car, because he was in no fit state to drive or because he was wanting to return to Sydney at that point.

32. The use of threat to kill and violence towards the complainant at the car for the purposes of having sexual intercourse are aggravating features. True, they establish an essential element that he knew she was not consenting, but they go beyond that to aggravate the violent nature of the non-consensual intercourse.

33. Given the parameters of the offence, I have found they do not extend to the boundaries the Crown sought in its submissions. The Crown defines the offence more expansively than do I. That may account for the difference in my view of the criminality. Nonetheless, my finding is the offence on its objective circumstances falls marginally above the lower border of the midrange of seriousness. That is to say it is within the midrange of seriousness but close to the lower rung of that midrange.

The Victim Impact Statement

34. I have received a victim impact statement. The material contained in the victim impact statement is not sworn evidence and has not been subject to cross-examination. To the extent that opinions are expressed in the statement I recognise they are not opinions of a qualified expert. The victim impact statement coming as it does from the primary victim may if I accept it as reliable, provide unsworn evidence as to facts of the offences and their effect upon her.

35. The functions of statements such as this is firstly to give victims an opportunity of having their voice heard in sentencing proceedings by publicly identifying the impact of the trauma visited upon them by the actions of an offender. Secondly, it enables sentencing proceedings to assist victims as they move towards some closure of grief, resentment and brooding arising from the criminal conduct of an offender. Thirdly, a victim impact statement may contribute to an offender at least hearing firsthand and perhaps gaining insight into the impact his offending conduct had upon her. Finally, the victim impact statement keeps this court mindful of the impact crimes have upon the ordinary men and women who are its victims.

36. The complainant says this: Physical injuries, impact on health and medical treatment, and a series of bullet points.

• Due to head injuries I suffered I had a great amount of difficulty in lying in any position that did not cause pain and therefore I had trouble sleeping.
• I underwent a number of tests including CAT scans and X-rays to determine whether any permanent head damage had occurred, in addition to requiring eye tests and new glasses.
• I was unable to open my mouth for a period of time which prevented me eating and talking normally.
• I have been receiving ongoing chiropractic treatment as a result of the constant tension I hold my body in since the event.
• I had stress-related tonsillitis which caused me to be taken to an emergency room on one occasion prior to undergoing tonsillectomy operation in October 2008.
• I continue to experience loss of energy and motivation and lack of interest in daily life and goals and I now take antidepressant medication which I did not do prior to the event.
• I frequently suffer with insomnia and I have been prescribed sleeping tablets, while other times I suffer with oversleeping and not taking any sleeping tablets.
• I regularly see my GP regarding depression.

37. I pause here to note that in respect of requiring new glasses and in respect of undergoing a tonsillectomy operation in October; my view is in the absence of expert evidence relating those causally to this event, I will not be taking them into account.

Emotional impact:

• Increased anger
• Heightened irritability
• Amplified impatience
• My ability to deal with small level stressful situations was diminished even though I thrived on this before the event.
• My temper is shorter and I am much, much less tolerant of situations I would have easily tolerated before.
• I suffer with a diminished level of self esteem which affects my general thinking and behaviour.
• Even though I can rationally explain most outcomes I often revert to self blame.
• I experience heightened irritability to cope with every day stresses while previously I handled these situations without difficulty, I have since struggled with these things.
• My outlook even as perceived by those closest to me is often that of general apathy.
• Since the event my attitude has of times been one of defiance, this can make both social and work situations difficult as I do not wish to compromise.

Psychological and mental health impact:

• A counsellor has advised me that I suffer with post traumatic stress disorder. Some of the symptoms I display include hyper vigilance, looking around on the streets or cars at number plates in fear of seeing him. I suffer with ongoing nightmares and flashbacks.
• Medically I have been diagnosed with depression. Some of the symptoms include flatness of mood. I find it difficult to leave the house at times.
• I lack motivation in general. I have poor focus and concentration and I am constantly fatigued and lethargic and suffer with both insomnia and oversleeping. I did not suffer with these symptoms prior to the event
• From the optimistic person I have always been since the event I have become cynical and often pessimistic.
• While I previously always looked for good in people I have become less trusting and I’m looking for reasons that they are being deceitful.
• I express irritability at dealing with everyday situations and easily feel stretched.

Changes in normal coping skills:

• My ability to concentrate on tasks has been severely compromised.
• I have great difficulty and of times am unable to handle stressful situations and conflict.
• My self doubt and constant questioning of my own ability to make decisions often results in inactivity. This is completely the opposite of how I coped previously.
• Since the event I have lost interest in daily life and regular activities. Again this is completely the opposite of how I behaved previously.

Changes in social life and impact on relationships with others:

• Due to my significant issues with trust as a result of the event I endure great difficulty in building and maintaining new relationships and suffer even more so with intimacy.
• Even with existing relationships with family and friends I have become more detached. Previously I enjoyed being physically and emotionally close with others while I now generally keep people at distance.
• I do not gain the same level of joy from social interactions as I did prior to this event. Whereas before I would go out of my way to get to many social functions I now select few to go to.
• Although I previously held many close relationships and enjoyed empathising and spending time with others I have been less emotionally available and possess very low tolerance in general.
• I now avoid sitting in the back seat of any car.

And her final heading is,

Impact on financial situation and employment:

• Prior to the event I demonstrated sharpness and clarity of mind. I was confident, driven and successful at work. I would often travel alone around Australia, New Zealand and South East Asia. Since the event I refuse to travel alone. My thinking has slowed and it is not sequential. I have lost confidence in myself, am not motivated, and lack direction which makes it very difficult to carry out work.
• Prior to the event I constantly exceeded targets. Since then I have not even gotten close to reaching targets which has resulted not only in terrible financial loss but caused me to have my job threatened regularly thereby continuing to escalate my stress levels.
• While I initially tried to continue with full time employment, the difficulty in getting out of bed, the diminished standard and quality of my work, and my lack of ability to focus, concentrate, make decisions, be responsive as required plus my suffering intrusive symptoms such as flash backs resulted in my attempting to work in a part time capacity. Due to these continuing issues and inability to handle the stress of even reduced every day work life I have stopped working altogether. This has severe financial implications.

Subjective Matters, Family Dynamics, Personal Background and Relationships

38. Craig Franklin is a 42 year old expectant father with his new partner, Emma Burke. He and Burke met at an AA meeting during the course of each undergoing rehabilitation from alcoholism. He is the eldest of four siblings, two sons, two daughters. His parents are still alive. The family appear relatively close knit with the youngest son, father (Garry), daughter (Danielle), and now the offender all involved in the youngest son Trent’s family business, Enziron Insurance Solutions. The appointment to the family firm must have been relatively recently. More importantly however, it will be available to him upon release from custody. All family members, particularly the siblings, present as high achievers.

39. Emma Burke and the offender appear to have met about mid 2008. Within three months they were residing together at Franklin’s family home and more recently living independently in a rented accommodation. Their first child is expected in January of 2010. There is no history of domestic violence between her and the offender.

40. His first relationship commenced when he was twenty-one and lasted ten years. There was no domestic violence in that relationship. There was a second relationship in 1997 that lasted sixteen months with a solicitor. Again no violence.

41. The third long term relationship was with the complainant. That relationship commenced about 2003 and ended with the matters before the court in 2007. But for the events at Easter 2007 there has been no history of domestic violence in any of his prior relationships.

Education, Skills and Employment

42. Franklin obtained a Bachelor of Arts (Honours) Sydney University 2003, LlM 2002, Graduate Diploma in Law 2003, admitted initially as a solicitor and subsequently admitted in May 2005 as a Barrister practising, as I said, out of Frederick Jordan Chambers. So far as I can recall there was no work history of any significance prior to his legal practice. Even so it is likely the offender will settle into the family business.

43. I should note that it is likely the Bar Association will ensure the offender does not practise law, as least as a Barrister, in the foreseeable future. He has already taken his name from the roll of practising barristers and has not sought to practise since the allegations were first ventilated against him. By virtue of his actions he now fails to meet the criteria of “fit and proper person” necessary to practise law as a barrister. His exclusion from the profession is said to constitute extra curial punishment. That appears to me a valid argument. The Crown has not sought to be heard against him. No matter how he should rehabilitate, nor that he serves his sentence, the door to his practising will remains closed for the foreseeable future, see in re Davis (1947) 75 CLR 409 at 416-417; per Latham CJ; ex parte Davis (1962) 63 SR (NSW) 54.

General Health

44. The offender’s physical health does not appear to present him with any problems. He is probably overweight. During his period of heavy alcoholism his liver was under stress; but since he began abstaining it has recovered.

45. As a child he stuttered which caused numerous issues for him (see later). That stutter appears to have resolved itself or become so harnessed into his speech patterns that it is hardly noticeable. He has given evidence before the jury, and again before me on sentence. He presents as articulate and fluent in his replies to questions.

Mental Health

46. Franklin’s father says that he first became aware in Franklin’s early twenties that his son was stricken by the blight of extreme anxiety which progressively developed into clinical depression. Over the last twenty years he has lived for long periods in the family home, at times living in a darkened room under covers for twenty-four hours continuous, for weeks, with minimal food and no interest in accessing help. That is not to say Franklin has not sought help in the past for his anxiety and depression. In 2002-2003 and again it seems in 2006 he has seen psychiatrists who have prescribed varying forms of ante-depressants.

47. During his recovery period from alcoholism in 2008 he was assisted by Dr Glenys Dore, consultant psychologist and a clinical doctor from North Sydney Drug and Alcohol Service and Dr Noeleen Latt a drug and alcohol physician. Dr Dore’s overview of his history was that Franklin had a long history of recurrent episodes of Major Depressive Disorder with onset in childhood when he was having difficulties with stuttering. Dr Westmore, gives the most recent diagnosis obtained for the defence, AXIS 1, alcohol abuse in remission; depression, in remission. It is probable he has suffered reactive depression known as adjustment disorder. He was not suffering depression at the time of conferring with Dr Westmore.

Character

48. This offender is one of four high achieving children. He has battled since his twenties with depression. He overcame his stuttering. He was probably affected during his school years with social anxiety, perhaps even subsequent. Even though he repeated a year or more at school he chose to study Law having obtained an honours level, Bachelor of Arts degree. He was admitted to the Bar in 2005 and was beginning to establish his practice in Law. Until these offences he was regarded as a “fit and proper person” to practise law. A standard of character deliberately demandingly high for the protection of the profession.

49. There are no criminal convictions. I am satisfied his conduct over Easter was entirely out of character for him. There seems little doubt the relationship with the complainant presented problems for him. Having committed the offences he immediately set about dealing with the areas of his behaviour and personality profile that contributed to his offending conduct. He is to be commended for that.

Rehabilitation Prospects

50. The Probation and Parole Service obtained a report from the Department of Corrective Services Forensic Psychology Services who reviewed Franklin for the purposes of assessing his risk of re-offending sexually. In a very thorough and detailed report Craig Baird assessed him at low risk of re-offending. Given the offender’s commitment to alcohol rehabilitation and dealing with depression and other personality profile type problems I am satisfied on all material before me, including Mr Baird’s report, that Franklin’s risk of re-offending is low to negligible. I should also note he attended and completed a relationships course entitled “Taking Responsibility”; that course lasting for some six months.

Attitude to Offence

51. Franklin admitted occasioning actual bodily harm to the complainant. That admission may well have been sincere. On the other hand the circumstances of his arrest and the presentation of the complainant at that time made any course other than a frank admission difficult for him in the extreme. He has, however, denied, and still denies, the earlier assault at the motel, the detaining and sexual intercourse offences. In respect of these offences he cannot claim contrition. He does say he is genuinely sorry for the assault occasion actual bodily harm- s 166 offence and will be given credit for that contrition when sentenced for this offence.

52. Co-incidentally I noted, I think in Alseedi [2009] NSWCCA 185, that that appeal turned upon a proposition that there can be rehabilitation without confession and offenders found guilty after trial are not all but automatically deprived of a finding of good prospects on rehabilitation, when they acknowledge their guilt. For my own part I have sought to give emphasis to that in any event. But I also take a view that sometimes publicly claimed contrition may be missing when silent, or contrition sub silentio, is really being experienced. I have not ruled that out as a possibility in this case.

Totality

53. All of this offending conduct has been captured by four charges. Three on indictment and one being dealt with pursuant to s 166 of the Criminal Procedure Act. The criminality takes place over a period of less than twelve hours. Of course that is substantially longer than other episodes of ongoing criminal conduct the courts frequently deal with when dealing with multiple charges. An example close at hand is Alseedi. However, concurrent sentences would reflect the closeness in time of the offending conduct and the impact of alcohol consumption that helped cause it. The sentence for the sexual assault, while still reflecting its criminality, will be weighted somewhat to reflect the total criminality. The standard non-parole period does not apply.

54. The aggravated sexual intercourse offence carries a standard non-parole period of seven years. That applies to an offence falling within the mid range of seriousness. I have assessed this offence as falling just within the mid range. On that basis the offence would attract a standard non-parole period. There are though, three other bases that would excuse the offence from a standard non-parole period. The offender’s prior good character, including no record for similar offences. His highly assessed rehabilitation prospects would also have the effect of bringing the sentence outside the requirement of a standard non-parole period, if I understand the reasoning in Way (R v Way (2004) 60 NSWLR 168) correctly.

55. If I have understood Way, it holds that the effect of s 54D of the Crimes (Sentencing Procedure) Act is to pose a question: “Are there any reasons for not imposing the standard non-parole period?” That question is answered first by a consideration of the objective seriousness of the offence considered in the light of the factors which relate directly to the commission of the offence, and secondly by a consideration of the circumstances of aggravation and mitigation in this case which applied to this offender as set out in s 21A(2) and s 21A(3). Consideration in either or both of the categories may provide justification for departure from the standard non-parole period as otherwise required by s 54B.

56. In the light of the three matters which I have mentioned and in my view should be given substantial weight at sentencing proceedings, I have determined that the standard non-parole period will not apply. Nonetheless the standard non-parole period remains an important reference point even where the standard non-parole period does not apply. Mulatto v Regina [2006] NSWCCA 282 at [20] per Spigelmann CJs, Simpson agreeing.

Setting the Sentence

57. In setting the sentence I regard the total objective criminality of Franklin’s offending as greater than Alsidee’s. I regard Franklin’s subjective features as being more favourable than Alsidee’s. I noticed the sentence imposed on Alsidee by the Court of Criminal Appeal when determining his appeal against severity was an overall sentence of seven years with a four-year non-parole period. That sentence was not meant to be a benchmark but an expression of the exercise of the Court of Criminal Appeal’s judgment and discretion. Of course I would take proper notice of that Court’s reasons and the result of those reasons as expressed in the sentencing discretion.

58. The maximum penalties available are the assault two years, the detain fourteen years, the aggravated sexual assault without consent 20 years and the assault occasioning actual bodily harm when treated summarily I have two years but I am not confident of it.

FOX: It is two years if it could be dealt with summarily Your Honour - did note earlier that the standard non-parole for the aggravated sexual intercourse was seven years, my understanding is ten.

HIS HONOUR: Ten--

FOX: The offence of sexual intercourse without consent is seven--

HIS HONOUR: Wait a minute. Let me have a look at it. I thought I read somewhere seven, that is why I put it down. You are right. Aggravated sexual assault ten years standard non-parole period. Thanks for that.

59. It should be noted that my attention has just been drawn to my references of a seven year standard non-parole period as being incorrect and I am advised, and in fact have confirmed, the standard non-parole period for this offence, that is the aggravated sexual intercourse offence, is one of ten years.

60. Finding special circumstances this is an appropriate case to find special circumstances. Dr Westmore, an experienced forensic psychiatrist well versed in prison culture makes the following point in his report,

“Obviously incarceration will be very difficult for this man. I note at his age his educational and professional background and the nature of the offence itself. All of these factors will make him a prisoner at risk. He does not have an anti-social personality disorder, despite the nature of the matters before the court, and that will also separate him from a large part of the prison population and make him more vulnerable.”

61. I also note his child will be born in the first few months of his incarceration. Having a first born child the community at a time when he is excluded from it will make his custody the harder. That is a matter that I have taken into account in fixing special circumstances rather than in otherwise mitigating the penalty. Finally, his rehabilitation is best achieved in the community. There was a fourth reason, which I have in my notes here, in finding special circumstances and it was that this was his first time in custody.

62. It will be seen from the sentences that I impose that I have rejected Mr Barker of Queen’s Counsel's submission of a suspended sentence. When counsel as eminent as Mr Barker makes a submission it must be seriously considered. However, the criminality exhibited in the major offence and the impact of legislative intent in the introduction of standard non-parole periods are forces so strong as to make that submission of Mr Barker unworkable even with prior good character, strong family support, and most impressive rehabilitation progress.

63. Would you stand up please Mr Franklin?

64. Craig Franklin I convict you of the offence that you on or about 9 April at Sutton in the state of New South Wales did assault the complainant. For that offence I set a sentence of three months to date from today’s date 18 September 2009 and to expire on 12 December 2009.

65. I also convict you that on 9 April 2007 at Sutton you took the complainant without her consent and with intent of obtaining an advantage, namely sexual gratification. In respect of that sentence I set a fixed term of twenty-four months imprisonment to date from today 18 September 2009 and to expire on 17 September 2011.

66. I likewise convict you that on 9 April 2007 at Sutton the same time and place you had sexual intercourse with the complainant without her consent knowing she was not consenting in circumstances of aggravation namely that immediately before the commission of that offence you did occasion actual bodily harm to her. For that offence I set a non-parole period of four and a half years to date from 18 September 2009 and to expire on 17 March 2014. I set a balance of term of three years to expire on 17 March 2017.

67. In respect of the 166 matter I set a sentence of six months to commence on 18 September 2009 and to expire on 17 March 2010. Please sit down. I must tell you that I cannot order your parole or your release, the Parole Board will do that. They will only do that in circumstances where they are satisfied that it is safe to release you, and it is safe for you to be released, that is your own health will not be undermined by you being released. You can best achieve that particularly by doing a sex offender’s program. It will be a matter entirely for you what you do but I have been around for a while and you may think there is some value to that, it’s a matter for you.

You may say goodbye to your family before I remit you to the custody of the custodial officers.

Would you go into the dock now please.

Is there any other order Mr Crown?

FOX: No, your Honour.

HIS HONOUR: Is there any other order Mr Kintominas?

KINTOMINAS: No, your Honour. Sorry, a moment your Honour. Your Honour, I don’t know in the form of an order as such but It occasionally happens that prisoners are at slightly more risk in the first twenty-four hours or forty-eight hours before the gaol authorities assess the situation. If there’s any recommendation that your Honour can make to ensure it’s safe.

HIS HONOUR: I recommend the urgent classification of this offender by the custodial authorities and I recommend that caution be taken in placing him anywhere in the interim on account of his profession, or past profession.

KINTOMINAS: Thank you, your Honour.

HIS HONOUR: He should not be placed in protective custody unless he requests it, incidentally.