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…

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, Craig

Details

AGLC: R v Franklin, Craig [2009] NSWDC 313
Case: [2009] NSWDC 313
Decision Date: 18 September 2009

CaseChat Overview and Summary

The case of R v Franklin, Craig, involved a dispute over multiple criminal charges, including aggravated sexual assault, common assault, and taking and detaining without consent. The accused was sentenced following a trial in a relevant Australian court. The central issues before the court involved the determination of appropriate sentences for the multiple charges, taking into account the unique circumstances and seriousness of the crimes.

The legal issues that the court had to decide included the standard non-parole considerations applicable to each offence, the relevance of the domestic relationship between the offender and the victim, and the effect of the offender’s intoxication on the assessment of culpability. Additionally, the court considered the implications of prior good character and the prospects for rehabilitation. The court had to balance these considerations with the necessity of sentencing to reflect the gravity of the offences, particularly the sexual assault, and the impact on the victim.

In reaching its decision, the court assessed the severity of the crimes, noting that the aggravated sexual assault, which involved forced return to a motor vehicle and non-consensual fellatio, was in the mid-range of seriousness. The court also considered the passage of time between the assault and the sexual offence, the vulnerability of the victim, and the offender's intoxication. The victim impact statement was examined within the constraints of its purpose and relevance. The court acknowledged the offender’s prior good character and strong rehabilitation prospects but emphasised the importance of deterrence and denunciation. Ultimately, the court applied the principles set out in Way's case to determine the sentences.

The final orders of the court were that the accused was convicted and sentenced to six months for the common assault, a fixed term of 24 months for taking and detaining without consent, and a sentence of seven and a half years in total, with a non-parole period of four and a half years, for the aggravated sexual assault. Additionally, the court sentenced the accused to six months for the offence of assault occasioning actual bodily harm, to run concurrently with the other sentences.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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