Franklin v R [2016] NSWCCA 319

Franklin v R [2016] NSWCCA 319

The appeal was allowed because the sentencing judge did not articulate an assessment of the objective seriousness of the individual offences and did not explain why abuse of trust or authority and the commission of offences in the applicant's home were aggravating in the circumstances, particularly where being under the applicant's authority was an element of some offences. On resentencing, a less severe aggregate sentence was warranted after assessing the individual offences, the applicant's guilty pleas, disclosure of otherwise unknown offending, remorse, guarded rehabilitation prospects, Form 1 matters, deterrence, denunciation, punishment, harm to the victim, and totality.

Jurisdiction
Australia
Judgment Date
23 December 2016
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court; Resentencing
Outcome
Leave to appeal against sentence granted; appeal allowed; District Court sentence quashed; applicant resentenced to an aggregate term of imprisonment of 24 years with a non-parole period of 18 years.
Legal Topics
['child Sexual Assault' 'child Abuse Material' 'objective Seriousness' 'aggravating Factors' 'abuse of Trust or Authority' 'offences Committed in a Home' 'aggregate Sentence' 'totality Principle']
['criminal Law' 'sentencing'] ['child Sexual Assault' 'child Abuse Material' 'objective Seriousness' 'aggravating Factors' 'abuse of Trust or Authority' 'offences Committed in a Home' 'aggregate Sentence' 'totality Principle']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court; Resentencing

Legal Issues

  1. 1 ['Whether the sentencing judge erred by making a blanket assessment of the objective seriousness of the offences without articulating assessment of the individual offences.' "Whether the sentencing judge erred by taking abuse of a position of authority or trust into account as an aggravating factor for offences where the victim being under the applicant's authority was an element of the offence." "Whether the sentencing judge erred in treating the fact that offences were committed in the applicant's home as an aggravating feature without explaining why it was aggravating in the circumstances." 'Whether a lesser aggregate sentence was warranted on resentencing.']

Ratio Decidendi

The appeal was allowed because the sentencing judge did not articulate an assessment of the objective seriousness of the individual offences and did not explain why abuse of trust or authority and the commission of offences in the applicant's home were aggravating in the circumstances, particularly where being under the applicant's authority was an element of some offences. On resentencing, a less severe aggregate sentence was warranted after assessing the individual offences, the applicant's guilty pleas, disclosure of otherwise unknown offending, remorse, guarded rehabilitation prospects, Form 1 matters, deterrence, denunciation, punishment, harm to the victim, and totality.

Court Disposition

Leave to appeal against sentence granted; appeal allowed; District Court sentence quashed; applicant resentenced to an aggregate term of imprisonment of 24 years with a non-parole period of 18 years.

Orders

  • ['Grant leave to appeal against sentence and allow the appeal.' 'Quash the sentence imposed in the District Court on 18 September 2015.' 'Sentence the applicant to an aggregate term of imprisonment of 24 years with a non-parole period of 18 years. The sentence is to date from 21 May 2014. The non-parole period will...