Citation: R v Franklin [2024] NSWDC 637
Court: District Court of New South Wales
Date: 19 September 2024
Judge: D Barrow SC DCJ
Background
Following a jury trial at Gosford District Court, the offender was convicted of manslaughter arising from events on or about 7 July 2018. The victim was a young man who worked as a chef and was described in the victim impact statement as bright, creative, and full of promise. His death left a profound and lasting impact on his immediate family and extended relatives.
The prosecution alleged that the offender and his de facto father-in-law, acting together in a joint criminal enterprise, caused the victim's death through a dangerous and unlawful act. The co-participant died before proceedings concluded, meaning the offender was sentenced alone.
The sentencing hearing took place on 23 August 2024. The court received a sentence summary, criminal and custodial histories, a pre-sentence report, a victim impact statement read by the deceased's aunt, a forensic mental health report, and character references from the offender's employer and supervisor.
Legal Issues
- What factual basis, consistent with the jury's verdict, could be established beyond reasonable doubt for the purposes of sentencing?
- How should the offender's individual culpability be assessed within the context of a joint criminal enterprise?
- What weight should be given to the applicable sentencing purposes, including general deterrence, denunciation, rehabilitation, and community protection?
- Whether special circumstances justified a departure from the standard ratio between the non-parole period and the total sentence term?
- What sentence was appropriate having regard to comparable cases?
Decision
The court approached fact-finding on sentence in accordance with the principles restated in Cheung v The Queen, confirming that findings adverse to the offender must be established beyond reasonable doubt, while the sentencing view need not necessarily adopt the version of facts most favourable to the offender in every respect. The court assessed the offender's individual role within the joint criminal enterprise to determine the extent of his personal culpability.
Reviewing comparable cases, the court positioned this offending as more serious than R v Kerr (where the offender was younger and had limited interaction with the victim) but less serious than R v Patterson; R v O'Brien (where both offenders directly struck or kicked the victim, rendering him unconscious on a roadway). The court noted that no single case provided a definitive range and that each matter turned on its particular facts.
The court found that no sentence other than imprisonment was appropriate. In assessing the length of the non-parole period, the court applied the principle from Power v The Queen that the non-parole period represents the minimum time justice requires the offender to serve, having regard to all circumstances of the offence.
The court found special circumstances warranted, based on the offender's PTSD diagnosis (which would make custody harder than usual), the fact that he had never previously served a custodial sentence, and his lifelong dependence on alcohol and illicit substances, which the court considered would require a lengthy period of supervised release. The forensic mental health report was directed to be forwarded to Justice Health.
Orders Made
- The offender was convicted and sentenced to imprisonment comprising a non-parole period of 3 years commencing 30 May 2024, with an earliest release date of 29 May 2027.
- A balance of term of 2 years and 6 months follows, meaning the total sentence expires on 29 November 2029.
- The forensic mental health report by Ms Knight dated 17 July 2024 was directed to be forwarded to the CEO, Justice Health.
Key Takeaways
- Manslaughter by unlawful and dangerous act does not require an intention to kill or cause grievous bodily harm, but the act must be intentional and voluntary, and a reasonable person in the offender's position must have appreciated an appreciable risk of serious injury to the victim, per Wilson v The Queen.
- Where an offender is sentenced after a trial in a joint criminal enterprise case, the sentencing court must identify findings of fact consistent with the jury verdict and assess the individual's particular contribution to the criminal enterprise, not simply the collective conduct.
- Special circumstances can be established through a combination of an offender's mental health condition, absence of prior custodial experience, and entrenched substance dependence, each bearing on the appropriate structure of the sentence.
- The District Court confirmed that comparable manslaughter cases are instructive but rarely determinative in isolation, noting that two cases alone do not define a sentencing range and that the weight of individual factors drives the ultimate assessment.
- Under the Crimes (Sentencing Procedure) Act 1999 s 3A, the seven sentencing purposes are overlapping and potentially conflicting, with no statutory hierarchy among them, consistent with the High Court's analysis in Muldrock v The Queen.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases:
- R v Lavender (2005) 222 CLR 67
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Wilson v The Queen (1992) 174 CLR 313
- Muldrock v The Queen (2011) 244 CLR 120
- Cheung v The Queen (2001) 209 CLR 1
- Power v The Queen (1974) 131 CLR 623
- Z v R [2015] NSWCCA 274
- R v Colomer [2014] NSWCCA 51
- Wallace v R [2014] NSWCCA 54
- R v Dennis [2015] NSWCCA 297
- R v Kiernan [2016] NSWCCA 12
- Blanco (2002) 106 A Crim R 303
- Qutami [2001] NSWCCA 353
- Blacklidge (Unreported, NSWCCA, 12 December 1995)
- R v Wood [2014] NSWCCA 184
- R v Kerr [2004] NSWSC 75
- R v Patterson; R v O'Brien [2020] NSWSC 221
- R v White [2023] NSWSC 611
- R v Sutcliffe and Others [2000] NSWSC 825
- Young v R [2009] NSWCCA 298