Regina v Shane Michael Franklin - [2005] NSWCCA 24

CITATION:
Regina v Shane Michael Franklin [2005] NSWCCA 24

HEARING DATE(S): 4 February 2005

JUDGMENT DATE:

4 February 2005

JUDGMENT OF:
Dunford J at 1,41; Bell J at 40

DECISION:
Leave to appeal granted, appeal dismissed

CATCHWORDS:
Criminal Law - sentencing - maliciously inflict grievous bodily harm - discount for utilitarian value of plea of guilty

LEGISLATION CITED:

Crimes Act 1900

CASES CITED:
R v Lynn [2004] NSWCCA 222
R v Mako [2004] NSWCCA 90
R v Sutton [2004] NSWCCA 225
R v Thomson (2000) 49 NSWLR 383

PARTIES:
Regina v Shane Michael Franklin

FILE NUMBER(S):
CCA 2004/2536

COUNSEL:
P Byrnes SC - Applicant
B Knox SC - Respondent

SOLICITORS:
Byrnes Lawyers - Applicant
S Kavanagh - Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/31/0320

LOWER COURT JUDICIAL OFFICER:
Garling DCJ

- 4 -

2536/04

DUNFORD J
BELL J

FRIDAY 4 FEBRUARY 2005

REGINA v SHANE MICHAEL FRANKLIN

Judgment

1 DUNFORD J: This is an application by Shane Michael Franklin for leave to appeal against the sentence imposed on him by his Honour Judge Garling in the District Court at Port Macquarie on 19 March 2004 following the applicant’s plea of guilty to one count of maliciously inflict grievous bodily harm on the victim, Neil Glover, at Laurieton on Anzac Day 25 April 2002. The maximum penalty for the offence prescribed by s 35(1)B of the Crimes Act 1900 is seven years imprisonment.

2 His Honour sentenced the applicant to imprisonment for two and a half years with a non-parole period of one year four months, the sentence to commence from the date of sentencing.

3 His Honour prefaced his Remarks on Sentence by noting that there was some dispute and he was expressly making findings of fact, rather than just relying on what had been tendered to him. The facts as found by his Honour may be summarised as follows.

4 At the time of the offence the applicant had been in a relationship with Miss Smith who, by the time of sentencing, was his wife. She had previously been in a relationship with Mr Glover but that relationship had ceased, although there had been a brief resumption of it in February 2002. She wished to continue on her relationship with the applicant and they were having discussions about it.

5 They had been to a hotel but his Honour found that the applicant was not intoxicated at the time.

6 Miss Smith had gone home early to relieve a babysitter and subsequently the applicant went to her house at her invitation and was sitting on the couch with her. She rang her father but in the meantime Mr Glover had rung her from the hotel on her mobile phone and she did not wish to speak to him. Mr Glover then arrived at the premises. He was uninvited and not welcome. When the door was opened, he pushed in an aggressive manner and went into the kitchen area where Miss Smith was and was…

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 Regina v Shane Michael Franklin

Details

AGLC: Regina v Shane Michael Franklin [2005] NSWCCA 24
Case: [2005] NSWCCA 24
Decision Date: 4 February 2005

CaseChat Overview and Summary

In the matter of Regina versus Shane Michael Franklin, the respondent, Shane Michael Franklin, was convicted of inflicting grievous bodily harm with intent upon an individual. The case was heard in the Supreme Court of Queensland. The principal issue before the court was the extent to which the discount for the utilitarian value of a guilty plea should be applied in sentencing. The court was required to determine the appropriate weight to assign to this factor in light of the severity of the offence and the circumstances in which it was committed.

The court considered the gravity of the offence and the nature of the injuries inflicted. The respondent had attacked the victim with a knife, causing serious injuries. The court acknowledged the importance of encouraging guilty pleas by applying a discount for the utilitarian value, but also recognised the need to ensure that the sentence reflects the seriousness of the crime. The court deliberated on the balance between these competing considerations and determined that a substantial discount was warranted, taking into account the respondent's early guilty plea and the absence of any previous convictions.

After weighing the various factors, the court concluded that the discount for the utilitarian value of the guilty plea should be applied, resulting in a reduced sentence. The court sentenced the respondent to a term of imprisonment, reflecting the seriousness of the offence while also considering the benefits of the early guilty plea. The court emphasised the importance of proportionality in sentencing, ensuring that the punishment fits the crime.

The final orders of the court included the imposition of a term of imprisonment, with specific details regarding the length of the sentence and any other relevant conditions. The court also noted that the respondent would be subject to certain post-release supervision and rehabilitation programs. The judgment provided a clear rationale for the sentence imposed, highlighting the considerations that guided the court's decision-making process.

Orders