Franklin v R
[2018] NZCA 495
•12 November 2018 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA411/2018 [2018] NZCA 495 |
| BETWEEN | MARK DAVID JOHN FRANKLIN |
| AND | THE QUEEN |
| Hearing: | 1 October 2018 |
Court: | Miller, Woolford and Collins JJ |
Counsel: | D J Blaikie for Appellant |
Judgment: | 12 November 2018 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed. The sentence of preventive detention is quashed.
BConcurrent sentences of three years and two and a half months’ imprisonment on the charges of kidnapping and assault with a weapon, and one year’s imprisonment on the charge of male assaults female, are substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Mr Franklin appeals a sentence of preventive detention imposed in the High Court at Whangarei, saying that he ought to have received the determinate sentence of three years and two and a half months’ imprisonment that Hinton J would have imposed had she not been satisfied that he is likely to commit another qualifying offence if released at the end of a determinate sentence.[1]
The index offending
[1]R v Franklin [2018] NZHC 1868.
Mr Franklin has known the victim for about 10 years, during which time he has conducted a dysfunctional on‑again off‑again relationship with her. On 8 January 2017, he was released from prison on an extended supervision order, a special condition of which was that he must not associate with the victim. He breached that condition within a month, making contact with her via a pay phone and securing a promise that she would not tell his probation officer. They resumed a relationship. He also breached another condition of the ESO, which was that he must not consume alcohol.
The relationship was characterised by intense, controlling and manipulative behaviour on Mr Franklin’s part. He would make threats to kill himself if she was slow to respond to his text messages or should she end the relationship.
On 2 April 2017, he picked her up in his car and abused her for going to church. She jumped out of the car, then returned to it when threatened. He drove her north towards Paihia and forced her, while the car was moving, to remove her shorts. She refused to remove her underwear, so he grabbed his fishing knife and threatened to cut the underwear off. She attempted to jump from the moving car and a struggle ensued. He pulled over and she jumped out, whereupon he began to cut himself with the fishing knife in an attempt to make her come to his rescue. This incident resulted in charges of kidnapping, assault with a weapon and male assaults female.
On 10 April 2017, Mr Franklin had an argument with the victim. It resulted in her driving to his address at around 2 am the next day because he had expressed suicidal tendencies. They engaged in intercourse and he became frustrated and aggressive toward her. She attempted to leave but he restrained her, spat in her face and abused her. He placed his hand around her throat and threw her onto the bed. He then swallowed antidepressant pills, claiming that she did not care about him. This induced her to have intercourse with him again. This incident resulted in a second charge of male assaults female.
The Judge recorded that the victim now suffers from severe anxiety, some of it associated with the memory of being strangled or held in a headlock. She panics in circumstances that remind her of the offending, and she experiences depression.[2]
Mr Franklin’s circumstances
[2]At [26]–[29].
The pre-sentence report recorded Mr Franklin was aged 30. He was born in Australia but moved back and forth between Australia and New Zealand because of his father’s employment. His parents separated shortly after his birth and he was raised by his father and stepmother in what seems to have been a rigidly Christian environment. He was placed in a boys’ home in Australia at the age of about 15 because of disruptive behaviour and he appears to have lived on the streets in Australia for about three years after that time. His family circumstances were clearly difficult. He perceives that his father and stepmother rejected him.
Mr Franklin has a reasonably lengthy criminal history beginning in 2006. It includes convictions for assault, apparently within the family, in 2007 and 2008. The offending for which he was released from prison in 2017 occurred in 2008, as did one offence of male assaults female which was committed at the end of that year but was sentenced on 13 February 2009.
On 24 September 2009, he was sentenced in the Gisborne District Court to eight years’ imprisonment for rape, unlawful sexual connection, assault and injury with intent to injure. The victim was a woman (not the victim of the present offences) with whom he was in a relationship at the time. That offending displayed certain similarities to the present offending: Mr Franklin had an obsessive and controlling attitude toward the victim, whom he raped after she refused to commence a sexual relationship with him. The ESO was imposed following his release after serving his sentence for this offending.
The reports
The pre-sentence report
The probation officer recommended imprisonment, stating that offending‑related factors were a sense of entitlement, antisocial attitudes, offence‑supportive sexual arousal, and a propensity for violence. Mr Franklin appears to have unresolved personal issues and showed no remorse or insight into the offending. He was assessed as being at very high risk of further offending and high risk of harm to others, especially women, with the potential to cause serious injury to a vulnerable female.
The psychological report
The first health assessor’s report was prepared by Jim van Rensburg, a registered clinical psychologist. Notably, he recommended that the court impose a lengthy prison sentence rather than preventive detention. He reviewed Mr Franklin’s family background and medical and psychiatric history. It seemed likely that Mr Franklin suffered from ADHD as a child, and as a younger man he was thought to show strong signs of borderline personality disorder, evidenced by poor emotional regulation, inability to maintain relationships and several attempts at self-harm. He has a pattern of using alcohol and cannabis although he claims he is no longer doing so.
Mr van Rensburg found strong indications that Mr Franklin has suffered from ADHD from childhood. The condition is marked by mood swings and extreme emotions which may be expressed in obsessive and compulsive behaviour and a propensity for aggression. He grew up with strong Christian values enforced by his father, which contributed to feelings of guilt and failure. His relationships with women were mostly short‑term and marked by very controlling behaviour on his part. He would form relationships with women via internet dating sites and rapidly become infatuated with them and then possessive.
During his interview with Mr van Rensburg Mr Franklin revealed that he had very recently come out as gay. This was something he had never felt free to talk about because of his family’s strong religious background. There is some evidence that he has had sexual encounters with men. He has now disclosed his sexuality to his family.
Mr van Rensburg noted that Mr Franklin attended an adult sex offender treatment programme between 2013 and 2015, where he was said to have made good progress in a wide range of areas. He had also attended a drug treatment unit in 2012. However, those gains were not sustained upon release.
Mr van Rensburg assessed Mr Franklin using the usual tools. On the Violence Risk Scale (VRS) his reoffending risk was high, and static risk above average. He fell within a high-risk group on the STABLE-2007 instrument, which assesses dynamic predictors of sexual recidivism. However, Mr Franklin appeared genuine in expressing hope that his risk of reoffending could be significantly reduced.
Mr van Rensburg concluded that if Mr Franklin continues to identify as gay and ceases to engage in relationships with women, his typical offence cycle is not likely to continue, but it may do so if he has obsessive control issues in gay relationships. The failure of past programmes could likely be ascribed to the fact that treatment programmes were not addressed at one of the key reasons for his offending, namely his difficulties coming to terms with his sexual identity.
The psychiatric report
The second health assessor’s report was prepared by Dr Ian Goodwin, a psychiatrist. Dr Goodwin identified no cognitive impairment. Mr Franklin’s presentation and history is consistent with a diagnosis of borderline and antisocial personality disorder. He displays some insight into his difficulties but has not had specific treatment for personality disorder. He currently presents a moderate to high risk of reoffending in a similar manner in the future, but appropriate psychological treatment and ongoing absence from substance abuse would mitigate that risk. Dr Goodwin recommended therapies that may assist in management of Mr Franklin’s personality disorders.
The sentence
After surveying the facts, the Judge adopted a starting point of two years and nine months’ imprisonment.[3] Aggravating features of the kidnapping were vulnerability of the victim, abuse of trust, the extent of harm and the violence used, which included strangulation.[4] She uplifted the starting point by nine months for totality and by a further six months for personal aggravating features, including previous offending and the fact that at the time of this offending he was subject to an ESO and was in contravention of its terms.[5] This resulted in a total of four years’ imprisonment, from which she deducted 20 per cent for the guilty plea to arrive at a determinate sentence of three years and two and a half months.[6]
[3]At [44].
[4]At [39].
[5]At [45]–[46].
[6]At [48]–[49].
Turning to preventive detention, the Judge noted similarities between this offending and the offences for which Mr Franklin was sentenced in 2009.[7] She was satisfied that there is a clear pattern of serious violent or sexual offending against female victims with whom Mr Franklin is in a relationship, and that the driver for such offending is the need to manipulate and control the victims.[8] The risk of harm that his offending poses to the community is significant.[9] With respect to the risk of future offending, the Judge referred to the health assessors’ reports and concluded that Mr Franklin’s tendency toward controlling his partners is a significant driver of his offending, and that it might lead Mr Franklin to offend against men in a like manner. Nor could she discount the possibility that he might continue to engage in relationships with women.[10] She noted the failure of previous attempts to address the causes of Mr Franklin’s offending.[11]
[7]At [57]–[60].
[8]At [61].
[9]At [65].
[10]At [69].
[11]At [70].
The Judge noted that the determinate sentence was less than the minimum period of at least five years which she must impose in conjunction with a sentence of preventive detention.[12] However, the offending demonstrated a clear pattern, with significant harm and a high likelihood of reoffending.[13]
Risk assessment
[12]At [73].
[13]At [74].
We turn to the reasons why we differ from the Judge. They concern the pattern of past offending, the seriousness of the index offending as reflected in the determinate sentence that the Judge would have imposed, the apparent failure of past treatment, and the prospects of mitigating risk through treatment during and after a determinate sentence.
While Mr Franklin reoffended very soon after his release from prison for similar offending, he cannot be said to exhibit an entrenched pattern of past offending. Since 2006, when he became an adult, he has otherwise only convictions for assault in 2007 and 2008, and one conviction for male assaults female. We accept that he has had limited opportunity to exhibit such pattern given his age and time spent in prison, but the fact remains that his record does not display a pattern of serious sexual or other violent offending.
The index offending was undoubtedly serious, and traumatic for the victim. Mr Franklin’s attempt to control her by strangling her is of particular concern. His conduct is highly manipulative. That said, the offending was not especially serious by the standards of such cases. The fishing knife was used to prevail on the victim by threatening self-harm, not harm to her, and the kidnapping took the form of refusing to let her out of his car for a time. These considerations are reflected in the relatively modest starting point.
The Judge was undoubtedly correct that preventive detention may be ordered although the minimum period would exceed the length of the determinate sentence that would otherwise be imposed.[14] It must be borne in mind however that the minimum period exceeds the determinate sentence that would otherwise be thought necessary to protect the community in this case.[15]
[14]R v Tahuriorangi HC Hamilton CRI-2010-019-6286, 22 August 2011 at [43].
[15]See for example R v Bailey CA102/03, 22 July 2003 at [19]–[21].
Based on the health reports, we are unable to say that treatment is unlikely to help Mr Franklin. Past treatment had some success, and while the Judge was entitled to be sceptical about his change of sexual identity, the psychologist considers that it may account for the failure of past treatment. Nor has Mr Franklin undergone treatment addressed to his personality disorder. For these reasons, the principle that a determinate sentence is preferable applies. Treatment will plainly have to persist beyond the term of the sentence, but an ESO is available.
This is a finely balanced case, but we must make our own evaluation.[16] Having done so, we conclude that a determinate sentence is the better course.
Result
[16]Kumar v R [2015] NZCA 460 at [83].
The appeal against sentence is allowed. The sentence of preventive detention is quashed.
Concurrent sentences of three years and two months’ imprisonment on the charges of kidnapping and assault with a weapon, and one year’s imprisonment on the charge of male assaults female, are substituted.
Solicitors:
Crown Solicitor, Christchurch for Respondent
3
0
0