R v Franklin - [2018] NZHC 1868

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2017-088-001732

[2018] NZHC 1868

THE QUEEN

v

MARK DAVID JOHN FRANKLIN

Hearing: 19 July 2018

Appearances:

M B Smith for the Crown N Leader for the Defendant

Sentence:

19 July 2018

SENTENCING NOTES OF HINTON J

Counsel/Solicitors:
Marsden Woods Inskip & Smith, Whangarei Nicholas Leader, Barrister, Auckland

R v MARK DAVID JOHN FRANKLIN [2018] NZHC 1868 [19 July 2018]

Introduction

[1] Mark Franklin, you appear today for sentencing having pleaded guilty in the District Court at Whangarei, on 13 February 2018, to four counts of offending. Those offences are:

(a)Kidnapping, under s 209 of the Crimes Act 1961;

(b)Two charges of male assaults female, under s 194 of the Crimes Act 1961; and

(c)Assault with a weapon, under s 202C of the Crimes Act 1961.1

[2] On 22 May 2018, Judge Glubb, in the District Court at Whangarei, declined jurisdiction to sentence and removed the matter to the High Court. This was because the prosecution had obtained two health assessors reports, from which the Judge was persuaded that a sentence of preventive detention may be appropriate.

Facts

[3] Mr Franklin, you have known the victim for approximately 10 years. During this time, the two of you were in an on-again/off-again relationship. The relationship between the two of you was always dysfunctional, to say the least.

[4] You were in prison between September 2009 and December 2016 for rape of another woman. Shortly after your release on 8 January 2017, you were placed on an extended supervision order, which I refer to as an ESO, until 27 January 2027, a special condition of which was to not associate with the victim in this case.

[5] Despite this, in February 2017, you made contact with the victim via a payphone. You made sure she would not tell Probation, and the two of you resumed a relationship in secrecy.

1 The charge list and submissions refer in error to s 202A, which relates to possession of offensive weapons, but the matter has proceeded throughout on the basis of “assault with a weapon”, which is provided for under s 202C.

[6] Phone calls and sexual intercourse occurred almost daily. You regularly made threats that you would kill yourself if the victim was slow to respond to your text messages, or if she ended the relationship. You became possessive, controlling and obsessed, isolating the victim from her social group and studies in early childhood education, and placing pressure on her to sexually gratify you in ways which made her uncomfortable.

[7] On 2 April 2017, you picked up the victim in your vehicle. You were annoyed that she had been to church. An argument began between the two of you and you called her a “whore, “faggot” and “cunt”.

[8] The victim jumped out of the stationary vehicle, and you threatened her that if she did not get back in, you would drag her back in. She…

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

Details

AGLC: R v Franklin [2018] NZHC 1868
Case: [2018] NZHC 1868
Decision Date: 19 July 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Franklin concerned the sentencing of Mark Franklin, who had pleaded guilty to multiple charges including kidnapping and assault. The court was tasked with determining an appropriate sentence for Franklin, considering the severity of his crimes and the risk he posed to the community. The legal issues centered on whether a finite sentence of imprisonment or an indeterminate sentence of preventive detention would be more suitable to protect the community from Franklin's potential future offending.

The court considered the aggravating factors of Franklin's crimes, including the abuse of trust, the significant harm caused to the victim, and the use of violence. The court also examined the history of Franklin's offending, which revealed a pattern of controlling and manipulative behavior towards female partners, often accompanied by violence. Health assessors concluded that Franklin posed a high risk of reoffending, particularly due to his controlling nature and lack of sustained progress in treatment programs.

After weighing the arguments from both the Crown and Franklin's counsel, the court decided that a finite sentence of imprisonment would not adequately protect the community. The history of serious offending, the significant harm caused, and the high likelihood of reoffending led the court to conclude that preventive detention was necessary. The court sentenced Franklin to preventive detention, with a minimum period of imprisonment of five years, and issued a first-strike warning regarding the consequences of further serious violent offenses. Charges 1 and 5 on the charge list were withdrawn.

Orders