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District Court 18 September 2009

R v Franklin, Craig

[2009] NSWDC 313

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE AFTER TRIAL AGGRAVATED SEXUAL ASSAULT (PRIOR OABH) DETAIN FOR SEXUAL ADVANTAGE COMMON ASSAAULT

Citation: R v Franklin, Craig [2009] NSWDC 313
Court: District Court of New South Wales
Date: 18 September 2009
Judge(s): Nicholson SC DCJ

Background

The offender, a barrister admitted to the New South Wales Bar in 2005, was convicted after an eight-day trial of three indictable offences arising from events during a weekend trip to the Canberra region at Easter 2007. The offences were committed against his partner (referred to as "Tanya"), with whom he had been in an on-and-off domestic relationship for approximately two years. A fourth, summary offence was the subject of an earlier guilty plea.

The offending occurred over a twelve-hour period. It began with a physical assault at a resort following the complainant's rejection of his sexual advances, continued with a forced return to a parked vehicle along the Federal Highway, and culminated in non-consensual fellatio. The offender was heavily affected by alcohol throughout all four episodes of criminal conduct.

The offender denied committing three of the four offences. The jury rejected his evidence entirely and accepted the complainant's account as both honest and accurate. The sentencing judge was required to make findings of fact consistent with the jury's verdicts.

  • What was the objective seriousness of each offence, including the aggravated sexual assault charge to which a standard non-parole period potentially applied?
  • How should the passage of time between the initial assault and the sexual offending be treated for the purposes of the aggravation element?
  • What weight should be given to the victim impact statement, and what are the limits on its use in sentencing?
  • How should strong subjective factors, including prior good character and rehabilitation prospects, be balanced against the objective seriousness of the offending?
  • Whether special circumstances existed to justify a departure from the standard non-parole period, and how the principles in R v Way applied.
  • How should the vulnerability of the complainant be assessed in the context of the sexual assault?

Decision

Objective seriousness: The sentencing judge assessed the aggravated sexual assault as falling in the mid-range of seriousness. The aggravation arose from the actual bodily harm inflicted on the complainant immediately before the sexual offence. The judge considered the complainant's vulnerability, noting that she had been forcibly returned to the vehicle in an isolated location, was physically shaken from the preceding assault, and had no realistic means of escape. The non-consensual sexual act consisted of fellatio performed in those circumstances.

The detention offence: The taking and detaining of the complainant without consent, for the purpose of obtaining sexual gratification, involved the offender directing the complainant to leave the highway and parking in a location pointing back towards it. The judge treated this as a discrete and serious offence warranting a fixed term of 24 months.

Subjective matters and rehabilitation: The offender presented strong subjective factors: no prior criminal history, tertiary qualifications, prior good character supported by numerous references, and assessed prospects of rehabilitation described as strong. The judge acknowledged these matters carried significant weight but could not displace the need for an appropriate custodial term reflecting the gravity of the sexual offending.

Victim impact statement and standard non-parole period: The judge discussed the proper purpose of victim impact statements, noting their use is limited and that they cannot be used to increase a sentence beyond what the objective facts warrant. The judge applied the principles from R v Way in considering whether to set a non-parole period above, at, or below the standard, and ultimately set a non-parole period of four and a half years for the aggravated sexual assault, with a balance of term of three years. The judge also noted the passage of several hours between the initial assault and the sexual offending as a relevant factual circumstance in assessing the overall criminality.

Orders Made

  • Count 1 (Common Assault): Convicted. Fixed term of 6 months imprisonment, commencing 18 September 2009, expiring 12 December 2009.
  • Count 2 (Take and Detain Without Consent): Convicted. Fixed term of 24 months imprisonment, commencing 18 September 2009, expiring 17 September 2011.
  • Count 3 (Sexual Intercourse Without Consent in Circumstances of Aggravation): Convicted. Non-parole period of 4 years and 6 months, commencing 18 September 2009, expiring 17 March 2014. Balance of term of 3 years, expiring 17 March 2017.
  • s 166 CPA matter (AOABH): Convicted. Fixed term of 6 months, commencing 18 September 2009, expiring 17 March 2010.
  • The sentencing judge recommended urgent classification of the offender by custodial authorities, with caution exercised in initial placement given his former profession.

Key Takeaways

  • The District Court confirmed that, in assessing objective seriousness for aggravated sexual assault, the vulnerability of the complainant at the time of the offence is a relevant consideration, including circumstances where the complainant had been isolated, detained, and physically assaulted immediately beforehand.
  • A conviction for aggravated sexual assault under this factual pattern required the sentencing court to make findings of fact consistent with the jury's verdict without necessarily adopting the extreme of either the prosecution's or the defence's account.
  • Strong subjective factors, including prior good character, professional standing, and genuine rehabilitation prospects, carry significant weight in sentencing but do not displace the need for a custodial term commensurate with the objective gravity of serious sexual offending.
  • Victim impact statements serve a defined purpose in the sentencing process: the court here reaffirmed that they illuminate the harm suffered but cannot be used to inflate a sentence beyond what the established facts otherwise justify.
  • Applying R v Way, the sentencing court must engage with the standard non-parole period as a reference point and articulate reasons for any departure, with the ultimate sentence reflecting the full range of relevant objective and subjective considerations.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- s 166, Criminal Procedure Act 1986 (NSW)

Cases:
- R v Way (2004) 60 NSWLR 168
- Gladue v The Queen [1999] 1 SCR 688
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] 1 NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Dunn [2004] NSWCCA 41
- Alseedi v The Queen [2009] NSWCCA 185
- Davis (1947) 75 CLR 409
- Davis (1962) 63 SR (NSW) 54
- Mulatto v Regina [2006] NSWCCA 282