AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 2 November 2018

Franklin v R

[2018] NSWCCA 245

Assault & violenceTheft & property
CRIMINAL LAW APPEAL PARITY LEAVE GRANTED APPEAL ALLOWED

Citation: Franklin v R [2018] NSWCCA 245
Court: NSW Court of Criminal Appeal
Date: 2 November 2018
Judges: White JA, Johnson J, Harrison J

Background

The applicant, identified by the pseudonym Sam Franklin, pleaded guilty in the District Court to two offences arising from a violent home invasion at a rural property in Medway in the early hours of 28 April 2014. The first offence was specially aggravated break, enter and commit larceny under s 112(3) of the Crimes Act 1900 (NSW), carrying a maximum of 25 years and a standard non-parole period of seven years. The second offence was detaining a person in company with intent to obtain a financial advantage under s 86(2)(a), carrying a maximum of 20 years.

Franklin entered the property with two co-offenders, Evans and Sinclair (both pseudonyms). Evans carried a wooden axe or pick handle and beat one victim unconscious, bound him with tape, and threatened further violence. Franklin's role was characterised as more passive: he carried a torch, bound a victim's hands with tape, and participated in demanding money. The sentencing judge rejected Franklin's account that he believed the enterprise was only to steal machinery rather than to commit a home invasion.

The sentencing judge imposed an aggregate sentence of 14 years with a non-parole period of eight years and five months, incorporating a 45 per cent discount for an early guilty plea and assistance to law enforcement. Franklin applied to the Court of Criminal Appeal for leave to appeal on three grounds: error in assessing objective seriousness, parity with co-offenders, and manifest excess.

  • Whether the sentencing judge erred in his assessment of the objective seriousness of the s 112(3) offence, given that Franklin did not personally perpetrate the act of violence.
  • Whether Franklin had a justifiable sense of grievance arising from parity with the sentences imposed on co-offenders Evans and Sinclair.
  • Whether the aggregate sentence of 14 years was manifestly excessive.

Decision

The Court of Criminal Appeal granted leave and allowed the appeal, finding the original sentence was excessive when measured against the sentences imposed on the co-offenders and the proper assessment of Franklin's individual culpability.

On objective seriousness, the Court accepted that while the offending was serious and well above the midrange, the sentencing judge's indicative pre-discount sentence of 20 years for the s 112(3) count (taking into account the Form 1 matters) was too high. Franklin did not personally wield the weapon or inflict the grievous bodily harm. His liability for those consequences arose through the principles of joint criminal enterprise rather than direct perpetration. The Court considered this a meaningful distinction in calibrating the indicative sentence, even accepting the sentencing judge's rejection of Franklin's attempt to minimise his role.

On parity, the Court found that the disparity between Franklin's sentence and those of Evans and Sinclair was not sufficiently explained by any relevant difference in their circumstances. A co-offender who personally committed the violence should not attract a sentence so close to the one imposed on a participant whose role was more limited. Franklin had a justifiable sense of grievance.

The Court re-sentenced Franklin by reducing the indicative sentence for the s 112(3) offence (with Form 1 matters) from 20 years to 18 years and 6 months before discount, producing an indicative head sentence of 10 years after the 45 per cent reduction. The indicative sentence for the s 86(2) offence was reduced to 12 years before discount, yielding approximately 6 years and 7 months after discount. Applied together with substantial accumulation, the Court fixed an aggregate sentence of 12 years and six months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed on 24 March 2017 set aside.
  • In lieu thereof, the applicant sentenced to an aggregate term of 12 years and six months imprisonment commencing 2 March 2017 and expiring 1 September 2029.
  • Non-parole period of eight years commencing 2 March 2017 and expiring 1 March 2025.
  • Balance term of four years and six months expiring 1 September 2029.
  • Earliest eligible parole date: 2 March 2025.

Key Takeaways

  • A participant in a joint criminal enterprise who does not personally inflict violence remains liable for that violence, but the sentencing court should calibrate the indicative sentence to reflect the nature and degree of that individual's participation rather than treating all participants as equally culpable in every respect.
  • The parity principle requires that differences in sentence between co-offenders be explicable by genuine differences in their circumstances or culpability. Where the co-offender who directly committed the violence receives a sentence close to that imposed on a less violent participant, the latter may establish a justifiable sense of grievance sufficient to ground an appeal.
  • The Court of Criminal Appeal confirmed that the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) operates as a guidepost, not a floor: an offence may be well above the midrange of seriousness while still attracting an indicative sentence below the starting point used by the sentencing judge.
  • A 45 per cent sentencing discount (combining an early guilty plea and a significant assistance component under s 23 of the Crimes (Sentencing Procedure) Act) was preserved on re-sentencing, the Court finding no error in the sentencing judge's approach to that reduction.
  • Rejecting a defendant's self-serving account of limited involvement does not automatically justify placing the offending at the highest point of objective seriousness; the court must still assess each offender's actual participation against the full range of conduct captured by the charged offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86, 105A, 112
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A, ss 23, 32, 33, 54A

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Akkawi and Akkawi v R (No 2) [2013] NSWCCA 72
- Akkawi v R [2012] NSWCCA 11
- Brown v R [2010] NSWCCA 73
- Burrows v The Queen [2017] NSWCCA 45
- Director of Public Prosecutions (NSW) v Cornwall [2007] NSWCCA 359
- House v The King (1936) 55 CLR 499
- Hughes v The Queen [2018] NSWCCA 2
- Kentwell v The Queen (2014) 252 CLR 601
- Kiernan v The Queen [2016] NSWCCA 12
- McAuliffe v The Queen (1995) 183 CLR 108
- Miller v The Queen (2016) 259 CLR 380
- Patson v The Queen [2018] NSWCCA 129
- Postiglione v The Queen (1997) 189 CLR 295
- R v Evans (No 3) [2017] NSWSC 1523
- R v JW (2010) 77 NSWLR 7
- R v Simpson (2001) 53 NSWLR 704
- R v Sinclair [2017] NSWSC 686
- Tattersall v R [2011] NSWCCA 282