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15
Court of Criminal Appeal 23 December 2016

Franklin v R

[2016] NSWCCA 319

Sexual offences
CRMINAL LAW SENTENCE CHILD SEXUAL ASSAULT CHILD ABUSE MATERIAL ERROR ESTABLISHED APPLICANT RESENTENCED

Citation: Franklin v R [2016] NSWCCA 319
Court: NSW Court of Criminal Appeal
Date: 23 December 2016
Judges: Macfarlan JA; R A Hulme J (principal judgment); Bellew J

Background

The applicant (referred to by the pseudonym "Franklin" to protect the victim's anonymity) was sentenced in the District Court at Nowra on 18 September 2015 for 18 indecent and sexual assault offences committed against his niece between 2007 and 2013. Three further offences were taken into account on a Form 1. The victim was aged between 7 and 13 during the offending period, and the applicant was aged between 29 and 35.

The offending began when the victim was around 7 years old and escalated significantly over time, progressing from touching to digital penetration and ultimately to penile and anal intercourse. The applicant also made video recordings of the offending and filmed the victim and her sister showering. The offences occurred predominantly at the applicant's home, where the victim regularly stayed on weekends from a very young age.

The sentencing judge imposed an aggregate term of 27 years' imprisonment with a non-parole period of 18 years. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred by making a "blanket" assessment of the objective seriousness of all 18 offences without separately assessing each offence
  • Whether the sentencing judge impermissibly took into account "abuse of a position of trust" as an aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for offences where the victim being under the authority of the offender was already an element of the offence
  • Whether treating the commission of offences in the applicant's home as an aggravating circumstance was available on the facts and, if so, whether the judge adequately explained why it was aggravating
  • Whether errors in the sentencing process warranted a reduction in the aggregate sentence

Decision

The Court of Criminal Appeal identified multiple sentencing errors. First, the sentencing judge assessed the objective seriousness of the 18 offences collectively rather than individually. This was an error of principle: each offence requires its own seriousness assessment, particularly where offences span multiple statutory provisions carrying different maximum penalties and attract different standard non-parole periods.

Second, the sentencing judge impermissibly treated "abuse of a position of trust" as an aggravating factor under s 21A(2)(k) for several offences charged under s 66A(2) and s 66C(2) of the Crimes Act 1900 (NSW), where the victim being "under the authority" of the offender was already a specified element of those offences. Section 21A(2)(k) is not available as an aggravating factor where the relevant circumstance is already embedded in the offence itself.

Third, while the Court accepted that committing offences within a home can in principle be an aggravating factor (recognising that a home is ordinarily a place of safety), the sentencing judge failed to explain adequately why that circumstance was aggravating in the context of these particular offences. The failure to articulate the reasoning constituted a further error.

Having found error, the Court re-sentenced the applicant. R A Hulme J assessed each offence individually and took into account all relevant sentencing factors, including the applicant's guilty pleas (attracting a 25% discount), his partial assistance to authorities on certain counts, the lack of prior criminal history, expressions of remorse, and the need for lengthy rehabilitation. A less severe aggregate term was warranted, although the non-parole period remained the same.

Orders Made

  • Leave to appeal against sentence granted and the appeal allowed
  • The sentence imposed in the District Court on 18 September 2015 was quashed
  • The applicant was re-sentenced to an aggregate term of imprisonment of 24 years with a non-parole period of 18 years, commencing 21 May 2014, with the non-parole period expiring 20 May 2032 and the total term expiring 20 May 2038

Key Takeaways

  • A sentencing judge must assess the objective seriousness of each individual offence separately; a single "blanket" assessment across multiple offences of differing character and statutory footing constitutes an error of principle.
  • Under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), "abuse of a position of trust" cannot be applied as an aggravating factor where the victim being under the authority of the offender is already a statutory element of the charged offence.
  • Committing sexual offences within a victim's place of safety (such as a home) may, in appropriate cases, constitute an aggravating circumstance, but the sentencing court must explain the reasoning that makes it so on the particular facts.
  • Where multiple sentencing errors are established, the Court of Criminal Appeal will re-sentence the offender itself rather than remit the matter, applying each applicable sentencing factor to the individual counts.
  • Errors that, when combined, produce an aggregate sentence that is more severe than warranted will result in a reduced total term, even where, as here, the non-parole period remains unchanged.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61M(2), 66A, 66A(2), 66C(2), 91G(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 21A(2)(k), 21A(2)(eb), 23(4), 44(2B), 44(2C), 53A(2)(b), 54B(4)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
- Criminal Appeal Act 1912 (NSW): s 6(3)

Cases:
- CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 356
- EK v R [2010] NSWCCA 199; 79 NSWLR 740
- Ingham v R [2011] NSWCCA 88
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Jonson v R [2016] NSWCCA 286
- JRM v R [2012] NSWCCA 112
- Melbom v R [2013] NSWCCA 210
- Montero v R [2013] NSWCCA 214; 234 A Crim R 532
- MRW v R [2011] NSWCCA 260
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Panetta v R [2016] NSWCCA 85
- R v Comert [2004] NSWCCA 125
- R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- R v Van Ryn [2016] NSWCCA 1
- R v XX [2009] NSWCCA 115; 195 A Crim R 38