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District Court 29 May 2024

R v Franklin

[2024] NSWDC 356

Sexual offences
CRIME SENTENCE SEXUAL INTERCOURSE WITH CHILD 10 POSSESS CHILD ABUSE MATERIAL

Citation: R v Franklin [2024] NSWDC 356
Court: District Court of New South Wales
Date: 29 May 2024
Judge: Bourke SC DCJ

Background

The offender was tried in the District Court at Parramatta in March 2024 and convicted by jury on two counts: sexual intercourse with a child aged between 10 and 14 years (count 1), and possession of child abuse material (count 2). The victim, referred to as GS, was 13 years old at the time of the offending in July 2022.

The offending arose from a series of events on 22 July 2022, when the offender and the victim, along with others, travelled between Liverpool, the Sydney CBD, and Casula. Late that night, the offender had penile-vaginal sexual intercourse with the victim on the floor of a motel room in Casula while another adult was present and intoxicated. A photograph sent by the victim to the offender, depicting her in a sexual pose while straddling him and wearing only underwear, formed the basis of the child abuse material possession charge.

Additionally, the offender pleaded guilty before sentencing to a third count of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (count 3). This arose because the offender had been placed on the Child Protection Register following an earlier conviction in March 2022 for possessing child abuse material, yet never reported his contact with GS to police.

  • Whether the offender genuinely and reasonably believed the victim was 18 years old at the time of the sexual intercourse, or knew she was approximately 13
  • The objective seriousness of each offence and how they should be weighed in sentencing
  • The appropriate aggregate sentence, including head sentence and non-parole period, having regard to totality principles
  • Whether the commencement date of the sentence should be backdated to account for time served on an earlier, revoked parole matter

Decision

On the question of the offender's belief about the victim's age, his Honour rejected the offender's evidence that he believed her to be 18. The victim had given firm and consistent evidence that she told the offender she was 13 before the sexual intercourse occurred. Her appearance in photographic and audio-visual trial exhibits was also consistent with her being approximately 13 years old. The court was satisfied beyond reasonable doubt that the offender knew the victim was around 13 and under 14 at the relevant time. That conclusion was further supported by tendency evidence admitted at trial, which indicated the offender had a sexual interest in girls under 14.

On the question of the sentence commencement date, the court declined to backdate the sentence to an earlier point in the offender's custody. The revocation of the offender's parole in September 2022 was not solely attributable to the current offences: it also reflected breach of conditions requiring participation in treatment. The court also noted that, given only four months remained on the prior sentence when parole was revoked, it was unlikely parole would have been restored. The offender's institutional offending between August 2023 and April 2024 further weighed against additional leniency on this point. The sentence was directed to commence on 25 May 2023.

Applying totality principles across all three counts, the court imposed an aggregate sentence rather than separate consecutive or concurrent terms. The indicative individual sentences were: two years and ten months (with a non-parole period of one year and ten months) for count 1; ten months for count 2; and nine months for count 3 (reflecting a 10% guilty plea discount). Those indicative sentences were then moderated into a single aggregate term.

Orders Made

  • Aggregate head sentence of three years' imprisonment, commencing 25 May 2023 and expiring 24 May 2026
  • Non-parole period of two years, expiring 24 May 2025
  • Indicative sentences: count 1, two years and ten months (non-parole period one year and ten months); count 2, ten months; count 3, nine months (after 10% plea discount)

Key Takeaways

  • The District Court rejected the offender's claim of honest and reasonable belief that the victim was 18, finding beyond reasonable doubt that he knew she was approximately 13, based on the victim's consistent trial evidence, her appearance in exhibits, and tendency evidence of sexual interest in underage girls.
  • A prior conviction for possessing child abuse material, resulting in registration under the Child Protection (Offenders Registration) Act 2000, can give rise to a separate reporting obligation offence where the registrant fails to disclose contact with a child victim.
  • Where parole revocation was attributable to multiple grounds (not solely the offences being sentenced), the sentencing court may decline to backdate the current sentence to account for time spent in custody following that revocation.
  • Institutional offending during remand is a relevant consideration weighing against the grant of additional leniency through sentence backdating.
  • Under the aggregate sentencing regime in NSW, the court is required to state indicative individual sentences before pronouncing the final aggregate term, with totality principles applied to ensure the overall sentence is proportionate.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- BP v R [2010] NSWCCA 159
- Bugmy v The Queen [2013] HCA 37
- Field v R [2020] NSWCCA 105
- R v Gavel [2014] NSWCCA 56
- R v Gray [2018] NSWCCA 241
- R v Hutchison [2018] NSWCCA 152
- R v Lau [2022] NSWCCA 131
- R v McClymont (unreported, NSWCCA, 17 December 1992)
- TM v R [2023] NSWCCA 185