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Court of Criminal Appeal 24 May 2013

Franklin v R

[2013] NSWCCA 122

Sexual offences
CRIMINAL LAW SENTENCE APPEAL OFFENCES OCCURRED ON ONE NIGHT WHETHER PRINCIPLE OF TOTALITY OBSERVED DECISION A DISCRETIONARY ONE SENTENCE NOT EXCESSIVE

Citation: Franklin v R [2013] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 24 May 2013
Judge(s): Hoeben CJ at CL (lead judgment); Hall J and Davies J (agreeing)

Background

The applicant pleaded guilty to four offences of aggravated sexual intercourse and aggravated indecent assault committed against a 14-year-old girl on a single evening in September 2009. The offences occurred at the home of the applicant and his partner (the co-offender), where the victim was staying overnight and was in their care. The applicant and co-offender had a longstanding friendship with the victim's family through a shared involvement in a youth aviation organisation.

The offences involved a sequence of sexual acts performed on the victim in the bedroom. These included touching the victim's breasts, digital penetration, cunnilingus, and directing the victim to touch the applicant's penis during a further sexual act involving the co-offender. Additional offences were taken into account on a Form 1, including insertion of a vibrator and further indecent touching.

At sentencing in the District Court, the judge imposed partially cumulative sentences, producing a total effective sentence of 8.5 years imprisonment with a non-parole period of 5.5 years. The applicant sought leave to appeal, arguing the structure and extent of the accumulation was excessive and that the overall sentence was manifestly excessive.

  • Whether the extent of accumulation of the individual sentences was excessive in the circumstances
  • Whether the sentencing judge adequately applied the principle of totality (that is, whether the overall sentence appropriately reflected the total criminality without being disproportionately severe)
  • Whether the total effective sentence of 8.5 years was manifestly excessive

Decision

Hoeben CJ at CL dismissed the appeal, with Hall J and Davies J agreeing. The Court reaffirmed that there is no general rule of law requiring sentences to be served either concurrently or consecutively. The decision is a discretionary one for the sentencing judge, and the fundamental question is whether the criminality of one offence can be encompassed within the criminality of another.

The Court applied the principle confirmed in Cahyadi v R and R v Jarrold: sentences should not be made concurrent merely because offences are similar in nature or form part of one course of conduct. Where each offence involves discrete criminality that cannot be absorbed into another, at least partial accumulation is required to reflect the full extent of the offending.

On the facts, the Court found each sexual act carried its own distinct criminal significance. Although the offences occurred within a single evening, the applicant persisted in a series of separate, escalating acts against a terrified and vulnerable child who was under his care. The Court accepted that some degree of accumulation was conceded as necessary by the applicant's own counsel.

While acknowledging that other judges might have structured the sentences differently, the Court held the sentencing judge's approach was plainly open and disclosed no error warranting appellate intervention.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed there is no rule of law requiring that sentences for multiple offences arising from a single episode be served concurrently; the question turns on whether the criminality of one offence is wholly encompassed in another.
  • Where each offence involves discrete and separately identifiable criminal conduct, partial accumulation may be required to ensure the sentence properly reflects the totality of the offending, even when all offences occur on a single occasion.
  • A sentence should not be made concurrent simply because the offences are similar in character or form part of a single course of criminal conduct (R v Jarrold; Cahyadi v R).
  • In dismissing the appeal, the Court applied the established principle that the sentencing discretion will not be disturbed merely because an appellate court might have structured the sentences differently, provided the structure adopted was open to the sentencing judge.
  • The co-offender's parallel appeal had been dismissed by the Court of Criminal Appeal in LG v R [2012] NSWCCA 249 on identical grounds, lending consistency to the outcome.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 61O(1), 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
- Ibbs v R [1987] HCA 46; 163 CLR 447
- LG v R [2012] NSWCCA 249
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v Jarrold [2010] NSWCCA 69
- R v MAK [2006] NSWCCA 381; 167 A Crim R 159