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R v Franks

R v Franks

Case [2005] NSWCCA 196 20 May 2005

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CITATION:
REGINA v. FRANKS [2005] NSWCCA 196

HEARING DATE(S): Friday 20 May 2005

JUDGMENT DATE:

20 May 2005

JUDGMENT OF:
Simpson J at 41; Buddin J at 42; Hall J at 1

DECISION:
Leave to appeal granted; appeal granted in part; the sentence of four years imprisonment from 6 June 2003 to 5 June 2007 with respect to the offence under s.33B(1)(a), Crimes Act 1900 be quashed; in respect of the offence under s.33B(1)(a), Crimes Act 1900, a fixed term of three and a half years imprisonment from 6 June 2003 to 5 December 2006 be substituted in lieu of the sentence imposed of four years imprisonment; the sentence imposed with respect to the offence under s.97(2), Crimes Act 1900 be quashed; in respect of the offence under s.97(2), Crimes Act 1900, a total sentence of eight and a half years be substituted from 6 December 2004 to 5 June 2013 with a non-parole period of four years from 6 December 2004 to 5 December 2008. The eariest date on which the applicant will be eligible for release on parole of 5 December 2008.

CATCHWORDS:
Criminal law - appeal against sentence - aggravating factor - aggravating factor was an element of the offence - manifestly excessive sentence - Henry guideline - starting point.

LEGISLATION CITED:

Crimes Act 1900 - s.97(2)
Crimes (Sentencing Procedure) Act 1999 - s.21A
Criminal Appeal Act 1912

CASES CITED:
Foster (1995) 78 A. Crim. R. 517
Mohamadin [2004] NSWCCA 401
Milojevic [2001] NSWCCA 461
Henry (1999) 46 NSWLR 346
Hemsley [2004] NSWCCA 228

PARTIES:
REGINA v.
Cory Dean FRANKS

FILE NUMBER(S):
CCA 2005/525

COUNSEL:
Crown: G. Rowling
App: M. Bozic, SC.

SOLICITORS:
Crown: S. Kavanagh
App: S.E. O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/71/0097

LOWER COURT JUDICIAL OFFICER:
Norrish, DCJ.

2005/525

SIMPSON, J.
BUDDIN, J.
HALL, J.
FRIDAY 20 MAY 2005

REGINA v. CORY DEAN FRANKS

Judgment

1 HALL, J: By application dated 11 March 2005, the applicant, Cory Dean Franks, seeks leave to appeal on the sentence imposed by the District Court of New South Wales by his Honour Judge Norrish on 25 August 2004. On that date, his Honour sentenced the applicant as well as his co-offender, John Frederick McNamara. His Honour’s remarks on sentence included his consideration of sentences imposed in relation to both offenders.

2 The applicant pleaded guilty to five charges in all arising out of an armed robbery at the Australian Rules Football Club at 188 Fernleigh Road, Wagga Wagga that occurred on 6 June 2003. The sentence details in respect of the five charges are as follows.

Charge

Crimes Act 1900

Sentence:

3 In relation to the charge under s.33B(1)(a), there were three additional offences taken into account on a Form 1. They were:-

Crimes Act 1900;

(ii) Take and drive…

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 Franks

Details

AGLC: R v Franks [2005] NSWCCA 196
Case: [2005] NSWCCA 196
Decision Date: 20 May 2005

CaseChat Overview and Summary

The appeal in R v Franks was brought before the court by the respondent, Franks, who contested the sentence imposed by the lower court. The respondent had been found guilty of a crime that included an aggravating factor, which the lower court had considered in determining the sentence. Franks argued that the sentence was manifestly excessive, particularly in light of the Henry guideline, which is a tool used to establish a starting point for sentencing in cases involving similar aggravating factors. The appeal focused on whether the lower court had correctly applied the guideline and whether the sentence was indeed excessive.

The primary legal issue before the court was whether the sentence imposed on Franks was appropriate, given the aggravating factor that was part of the offence. The court needed to determine if the lower court had correctly identified the starting point for sentencing using the Henry guideline and if it had properly balanced the aggravating factor in its sentencing decision. Additionally, the court had to assess whether the sentence was manifestly excessive and, if so, whether it warranted a reduction.

The court found that the lower court had correctly identified the starting point for sentencing using the Henry guideline but had not adequately balanced the aggravating factor in the sentence. The court acknowledged that the aggravating factor was an element of the offence and thus had to be considered in the sentencing process. However, the court determined that the sentence imposed by the lower court was manifestly excessive. It noted that while the aggravating factor warranted a higher sentence, the extent to which the sentence exceeded the starting point was unreasonable. Consequently, the court reduced the sentence to a level that it considered appropriate, taking into account the mitigating factors and the Henry guideline.

In conclusion, the court reduced the sentence imposed on Franks, finding that it was manifestly excessive. The court's decision underscored the importance of correctly applying the Henry guideline and appropriately balancing aggravating factors when determining a sentence. The reduced sentence reflected a more balanced approach to the sentencing process, ensuring that it was commensurate with the nature of the offence and the circumstances surrounding it.

Orders