R v Franklin
[2018] NZHC 1868
•19 July 2018
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 acquiesced.
[9] You drove to a Gull petrol station in Whangarei. Stopping there, you took the victim’s phone, questioning her about the messages it contained.
[10]You threatened to punch her in the face if she yelled at you. She was crying.
[11]You then drove north towards Paihia.
[12] While driving, you demanded the victim remove her shorts, which she refused to do. You were persistent with these demands, though she continued to refuse you. Clearly frustrated, you grabbed at the shorts, pulling them with enough force to cause them to rip. Feeling under immense pressure from you, the victim removed her shorts.
[13] You then demanded she remove her underwear. This demand was made numerous times, against her consistent refusal.
[14] You then grabbed your fishing knife, threatening that if she did not take her underwear off, you would cut it off.
[15] The victim decided to jump from the moving car and attempted to do so. You grabbed her, putting her in a headlock and forcing her head down onto your lap.
[16] She struggled and you pulled the vehicle over, at which point she jumped out of the car and refused to allow you to touch her. At this point, you began to cut yourself with the fishing knife in an attempt to make her come to your rescue.
[17] On 10 April 2017, you had an argument with the victim resulting in numerous text messages and phone calls between you. On 11 April 2017 at 2.00 am, the victim drove to your address. The reason she gave for this was the suicidal tendencies you had expressed to her the previous day. She was worried for your safety, felt responsible for how you were feeling and wanted to make it up to you.
[18] The two of you engaged in sexual intercourse. However, you became frustrated and aggressive towards her when you were unable to orgasm. You blamed the victim for this, claiming she was “not doing it right”.
[19] At this point the victim said that she would like to leave because of how you were behaving. She made several attempts to do so, but each time you shoved her back down onto the bed, telling her that she was not leaving.
[20] You spat in her face and called her a “nigger”. You took her pants and placed them under your pillow in an attempt to prevent her getting dressed. When she tried to get them back, you told her to “be fucken quiet” in an angry tone.
[21] You then placed your hand around the victim’s throat and threw her onto the bed. The force of your hand around her throat caused the victim to struggle to breathe. You removed your hand from her throat when she attempted to pull it away.
[22] You then told her that she did not love you, or care about you, at which point you swallowed between eight and 10 anti-depressant pills.
[23] The victim, feeling responsible for what had occurred, had sexual intercourse with you again in an attempt to make it up to you. However, it ended the same way as before, with you failing to achieve orgasm and blaming her. You left the bedroom, returned with blood on your arm and fell asleep shortly after.
[24] The injuries the victim experienced from the first assault included a sprained left hand and bruising to her arm. As a result of the second assault, the victim received a sore throat and bruising to her neck.
Victim Impact Statement
[25] As the victim impact statement makes clear, the harm to the victim cannot be understood solely in terms of physical harm. Consistent with the offending outlined above, the emotional and psychological harm to the victim exceeds the physical injuries.
[26] She now suffers from severe anxiety, which when it strikes feels as though she cannot breathe. She needs to constantly remind herself that she is safe. Since the strangulation, she is uncomfortable wearing tops that are close to her neck, and if she does, she becomes anxious and starts pulling at the neck line, as she feels as though your hands are around her throat.
[27] She has had dreams she is being held in a head lock, and is crying out for help from her mother. She wakes in tears. Other nights she cannot sleep at all. She has started taking antidepressants and sleeps better, but still feels tired. She has also lost a significant amount of weight and has lost confidence in herself.
[28] She panics in situations which remind her of the offending, such as when a car pulls into her driveway, or when there is a loud noise. She has gone over a safety plan with her daughter in case someone comes to the house who intends to do them harm.
[29] Her depression is significant. Some days she feels happy, while on others she says the depression is like a blanket over her, weighing her down. Most worrying is her admission that while the antidepressants make her tired, she is grateful to be on them as otherwise she would be dead.
[30] One thing that brings her joy is her daughter and she is determined to make sure she has a good life and will do her best to protect her.
Purposes and principles of sentencing
[31]I consider the following purposes of sentencing are relevant:
(a)Holding you accountable for harm done to the victim, s 7(1)(a);
(b)Promoting in you a sense of responsibility and acknowledgement of that harm, s 7(1)(b);
(c)Providing for the interests of the victim of your offending, s 7(1)(c);
(d)Denouncing your conduct, s 7(1)(d);
(e)Deterring yourself and others from committing further offences, s 7(1)(f); and
(f)Protecting the community from you, s 7(1)(g).
[32]The following principles of sentencing are also relevant:
(a)Taking into account the gravity of your offending, s 8(a);
(b)The seriousness of the type of offences committed, s 8(b);
(c)Consistency with appropriate sentencing levels, s 8(e);
(d)Taking into account the effect of the offending, s 8(f); and
(e)Imposing the least restrictive outcome appropriate in the present circumstances, s 8(g).
Submissions
[33] Counsel for the Crown submits that a sentence of preventive detention is the only way to mitigate the ongoing risk to the community that you represent, Mr Franklin.
[34] In lieu of a sentence of preventive detention, they contend that a sentence of four years and three months’ imprisonment, before deducting between 15 to 20 per cent for your guilty plea, would be appropriate in light of the case law cited to the Court.
[35] Your counsel’s submissions focus on arguing against a sentence of preventive detention. He argues that there was no pattern of serious offending as contemplated by the legislation; that the risk of your future offending can be mitigated by specific and intensive therapy and newly-recognised acceptance of your homosexuality; and that a finite sentence of imprisonment in the present case is preferable.
[36] Against the Crown’s submissions on a sentence of imprisonment, your counsel suggests that a three-year starting point to reflect the entirety of your offending is appropriate. To this he accepts that uplifts of three months and two months, respectively, are appropriate considering your present offending and the fact that the most recent offending occurred while you were subject to an ESO. Finally, your counsel submits you are entitled to the full guilty plea discount of 25 per cent.
Approach
[37] I intend to undertake the sentencing exercise in the following manner. First, I will consider what sentence of imprisonment should be imposed by reference to ordinary sentencing principles. Following that, I will consider whether in any case, a finite sentence of imprisonment should be rejected in favour of preventive detention.
Sentencing analysis
[38] In determining the appropriate sentence, I will take the offence of kidnapping as the lead offence, from which I will set a starting point. I then assess uplifts to be applied to that starting point to reflect the totality of your offending overall.
[39]The aggravating features of the kidnapping offending are:
(a)The vulnerability of the victim and an abuse of trust. She was in a relationship with you, and in spite of the fact that the relationship was
clearly troubled and you had previously offended against her, she was entitled to put trust and confidence in you to not harm her and to respect her wishes. Moreover, some of the offending happened inside your own house, where she could not readily get help.
(b)The extent of harm to the victim. As outlined above, your offending has had significant negative effects on the victim, including depression and anxiety.
(c)The offending involved violence, to which I have already referred, including strangulation.
[40] While I understand the Crown’s point, I do not agree that there was any premeditation as such involved in the kidnapping offending, but I accept Mr Smith’s point that your behaviour was deliberate and manipulative, which is not much different.
[41] I agree with Downs J in the case of Cassidy-Gugich v R, cited to me by the Crown in written submissions, where he stated that starting points of approximately two-and-a-half years’ imprisonment are appropriate in relation to offenders who briefly detain a former partner, where there is associated violence or threats of violence.2 A starting point of two-and-a-half years was subsequently upheld in that case.
[42] In R v Yates, a starting point of two years and nine months’ imprisonment was adopted in relation to two charges of kidnapping, the first involving locking the victim in a shipping container for a few minutes, and the second involving dragging the victim back inside after she attempted to escape.3
[43] Your counsel contended in written submissions that these cases exhibited more serious offending than your own. I do not agree. Your offending involved a significant abuse of trust and was carried out by use of physical force.
2 Cassidy-Gugich v R [2016] NZHC 3027.
3 R v Yates [2012] NZHC 3387.
[44] For those reasons, I am satisfied that a starting point of two years and nine months’ imprisonment is appropriate.
[45] To that starting point, I accept the Crown submission that an uplift of nine months is appropriate to reflect the totality of your present offending. That includes the use of the knife against the victim in the car, which has quite clear sexual overtones, as your statement that you would cut off her underwear reveals. That brings me to an updated sentence of three years and six months’ imprisonment.
[46] I also accept Crown counsel’s submission that an uplift of six months is appropriate to take into account personal aggravating features, including your previous offending, and the fact that at the time of the offending you were subject to an ESO and were in direct contravention of the special condition that you not contact the victim. That brings me to a further updated sentence of four years’ imprisonment.
[47] Your counsel argues that a discount for remorse should be made, with no indication of how much that should be. The PAC report says you showed no remorse or insight into the effect your offending had on the victim. I accept on the basis of your remarks to both Dr Ian Goodwin and Mr van Rensburg, and the letter you wrote to the Court, that you have displayed some remorse, however, not such that I consider any distinct discount to be appropriate.
[48] In light of the submissions made by both counsel as to the appropriate discount to be allowed for the guilty plea, I consider that a discount of 20 per cent is appropriate in the circumstances. The charges were laid in June 2017 and a guilty plea not entered until February 2018, though I accept that discussions had been taking place in the meantime. Also, the evidence was strong.
[49] The end sentence is therefore three years, two-and-a-half months, allowing for the discount of 20 per cent.
Preventive detention
[50] I now turn to consider preventive detention. Preventive detention is an indeterminate sentence. If it is imposed, I have to specify a minimum term which you will be required to serve. It then falls to the discretion of the Parole Board to decide whether you should be released, if they are satisfied you no longer pose an undue risk to the safety of the community.
[51] Section 87(2) of the Sentencing Act 2002 imposes three conditions to the imposition of preventive detention. Those are:
(a)a person is convicted of a qualifying sexual or violent offence;
(b)the person was 18 years of age or over at the time; and
(c)the Court is satisfied that the person is likely to commit another qualifying sexual or violence offence if released at the sentence expiry date.
[52] It is uncontested that you have committed a qualifying offence, being kidnapping under s 209 of the Crimes Act 1961.
[53]Further, you were well over the age of 18 years at the time.
[54] In considering the third condition, whether you are likely to commit another qualifying offence if released at the sentence expiry date, I must have regard to the s 87(4) factors. These are:
(a)Any pattern of serious offending disclosed by your history;
(b)Seriousness of harm to the community caused by the offending;
(c)Information indicating a tendency to commit serious offences in the future;
(d)Absence or failure of efforts by you to address the cause of the offending; and
(e)The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[55] This overall s 87(4) analysis is to be determined using reports from at least two appropriate health assessors about the likelihood of the prisoner committing a further qualifying sexual or violent offence.4
[56] The assessment of the risk that the offender poses is the central focus of the preventive detention enquiry.5 The offender’s entire criminal history is to be considered in assessing his pattern of offending.6
Pattern of serious offending
[57] I now consider whether there is a pattern of serious offending. Your previous offending, which is relevant for present purposes, involved the rape of a young woman, aged 17 years, with whom you had been in a relationship. The lead-up to the offending, as described in the Police caption sheet, shows you to have been jealous and controlling, calling that victim and telling her to, “Get your fucking ass home”; abusing her and her male associates upon her arrival, and asking the two men with her, “What the fuck are you doing here? Leave my missus alone. Why are you with my missus?” You then physically assaulted the victim, grabbing her by the throat, and dragging her into the bedroom by her hair. The victim struggled, but was unable to get away. You placed your hand over her mouth and nose, preventing her from breathing. You then removed her underwear and raped her. During, and after the ordeal, you persistently told the victim that if she did not shut up, or if she told anyone, you would kill her. You then forced the victim’s mouth onto your penis and physically manipulated her to perform oral sex on you. Shortly after, with you failing to achieve orgasm, you relented, following which the victim was able to escape, but not without your giving chase and attempting to stop her from escaping.
4 Sentencing Act, s 88(1)(b).
5 Sentencing Act, s 87(2)(c).
6 R v McGee (1995) 13 CRNZ 108.
[58] Your counsel argued it could not be established that there is a pattern of serious offending disclosed by your criminal history, despite, as he put it, Mr van Rensburg’s opinion that there is a clear pattern of such. Mr van Rensburg, in his report, described the pattern of your offending as taking place against women with whom you are in a relationship, in the context of your need to control the relationship, both in terms of how you wanted those women to behave generally and sexually.
[59] Your counsel argues that these background factors, of controlling and manipulating your victims, should not overshadow this Court’s assessment as to whether your criminal history discloses a pattern of serious offending. I take his point. I do, however, consider that those background factors are important to understanding and identifying your pattern of offending. I accept Mr van Rensburg’s analysis that your offending takes place against women with whom you are in a relationship, and that the driver of your offending is a need to manipulate and control your victims, both physically and mentally, as you have displayed in both cases, through threats of violence against your victims and by the use of physical force.
[60] Though your most recent offending is not as serious as your previous offending, it is nonetheless serious. I do not consider the less serious nature of this offending to be determinative against identifying a pattern of serious offending.
[61] I am satisfied that there is a clear pattern of serious violent or sexual offending, against female victims, with whom you are in a relationship, and that the driver for your offending is a need to manipulate your victims and control the terms of the relationship.
Seriousness of the harm
[62] I now turn to consider the seriousness of the harm. Your counsel argues that the harm in this instance was not serious, as your victim only received a sprained wrist, sore throat and two bruises.
[63] In offending of this type, however, the focus of the harm cannot be solely on the physical injuries suffered by the victims. More fundamentally, the focus must be on the psychological harm the victim has suffered.
[64] As is painfully clear from the impact statement of your victim in the present case, the psychological effects of your offending against her are profound. She is heavily depressed, suffers anxiety, has struggled with her studies and most worryingly, has intimated that were it not for the anti-depressants she is currently taking, she might have taken her own life. Similar remarks were expressed by Mr van Rensburg, who had access to the sentencing notes in relation to your conviction for rape, concerning your first victim. He noted that the victim could not return to her mother’s home, where the offending took place, was suffering at work and had lost trust in intimate relationships.
[65] I am satisfied on the foregoing that the risk of harm your offending poses to the community is therefore significant. It is a terrible thing for young women to have to struggle through their day-to-day lives, fight against depression, lose faith in the people around them and contemplate taking their own life.
Risk of future offending
[66] Dr Ian Goodwin, applying the HCR-20 Version 3, concluded that you represent a moderate to high risk of reoffending in a similar manner in the future. Factors mitigating this risk include appropriate psychological treatment, as he considers that you exhibit a borderline antisocial personality disorder.
[67] Mr van Rensburg, in his report, considering the results of several risk assessment tools, was of the opinion that your risk of both violent and sexual reoffending against women victims was high. Employing the Violence Risk Scale, he estimated that you are at a high risk of violent reoffending within the next five years. Using the Static 99-R actuarial tool, he assessed you as posing an above average risk of violent and sexual reoffending. The STABLE-2007 tool was also used, upon which you were assessed as posing a high risk of sexual reoffending.
[68] The only mitigating factor against your risk of reoffending, identified by Mr van Rensburg, was your claim to have recently come to accept that you are in fact homosexual. Therefore, if you are sincere in your new-found identification, Mr van Rensburg assumed that, at the very least, relationships you engaged in with men would not be sexually unfulfilling for you, and therefore would not result in the same violent outcomes as your relationships with women. However, he also noted that there is no guarantee that the same controlling and manipulative behaviour you have exhibited towards women, would not also form the basis of your relationships with men.
[69] I am of the opinion that your tendency towards controlling your partners is a significant driver of your offending, and I therefore cannot discount the possibility that you will not also offend against men in a like manner. Nor, more importantly, can I discount the possibility that while you may engage in such relationships with men, as I understand you have at some time in the past, you may well also continue to engage in relationships with women, which invariably poses a high degree of risk to those women.
Efforts to address the causes of your offending
[70] As noted in the report of Mr van Rensburg, while previously incarcerated, you attended an adult sex offender treatment programme between 2013 and 2015. You were said to have made good gains in the areas of sexual compulsivity, cognitive distortions and interpersonal aggression. Clearly, and as your counsel conceded, you have been unable to sustain those gains.
[71] Your counsel contended that now that you have come out as gay, you will be able to receive more specific and appropriate treatment to mitigate the likelihood of your reoffending in the future. He was supported in this by the opinion of Mr van Rensburg who noted that the treatment you received was not focused towards your conflicted and undisclosed sexual identity. Mr van Rensburg was of the opinion that your chance of achieving long term treatment gains will be higher in light of this.
Finite sentence preferable if it provides adequate protection for the community
[72] Your counsel contends that a finite sentence of prison, together with an ESO upon your release, should provide sufficient community protection from your offending. The obvious problem with that argument is that you were previously subject to a sentence of eight years’ imprisonment and a subsequent ESO, which you contravened when you almost immediately contacted the victim and continued a relationship with her in secrecy. Clearly, in that instance, the ESO was insufficient in protecting the community from your offending.
[73] The concern for the Court in this regard, is the incongruity between the sentence you would receive for your offending, and the minimum period of imprisonment of at least five years, which I am obliged to impose.
[74] However, considering the principle enunciated by Heath J in R v Tahuriorangi that where the end sentence will be insufficient to achieve protection for the public, preventive detention is necessary to manage the future risk of offending, I am ultimately of the view that a finite sentence in this case is not preferable.7 The clear pattern of your offending, with the significant harm it causes to your victims and the high likelihood of your reoffending, convinces me that a sentence of preventive detention is necessary to protect the community from your offending.
[75] A minimum period of imprisonment is required to be imposed on any sentence of preventive detention. That minimum period can be no less than five years. Considering that I would otherwise not have imposed a sentence above five years, I consider that a five-year minimum period of imprisonment is appropriate.
Conclusion
[76]Mr Franklin please stand.
[77] I sentence you to preventive detention, with a minimum period of imprisonment of five years.
7 R v Tahuriorangi HC Hamilton CRI-2010-019-6286, 22 August 2011.
[78] I am required to give you a first-strike warning, which I now do. Given your conviction for kidnapping, you are now subject to the three-strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violent offences.
(a)If you are convicted of any serious violent offences, other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.
(b)If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole, unless it would be manifestly unjust. In that event, the Judge must sentence you to a minimum term of imprisonment.
[79]Finally, I record that charges 1 and 5 on the charge list are hereby withdrawn.
[80]You may stand down.
------------------------------------------------------
Hinton J
2
0