Franklin v R [2018] NSWCCA 245

Franklin v R [2018] NSWCCA 245

The sentencing judge erred because he failed to account for the fact that Franklin was not charged with the most serious iteration of the offence and did not foresee intentional infliction of grievous bodily harm; appellate intervention was also required due to considerations of parity. The appropriate aggregate sentence is 12 years and six months with a non-parole period of eight years.

Jurisdiction
Australia
Judgment Date
02 November 2018
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence; Resentencing
Outcome
Leave to appeal granted; appeal allowed; sentence set aside; applicant resentenced.
Legal Topics
['appeal Against Sentence' 'break and Enter' 'larceny' 'special Aggravation' 'detention for Advantage' 'parity' 'manifestly Excessive Sentence']
['criminal Law'] ['appeal Against Sentence' 'break and Enter' 'larceny' 'special Aggravation' 'detention for Advantage' 'parity' 'manifestly Excessive Sentence']

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Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence; Resentencing

Legal Issues

  1. 1 ['Whether sentencing judge erred in determination of objective seriousness for count one' 'Whether applicant has a justifiable sense of grievance regarding parity of sentence with co-offenders' 'Whether sentence was manifestly excessive']

Ratio Decidendi

The sentencing judge erred because he failed to account for the fact that Franklin was not charged with the most serious iteration of the offence and did not foresee intentional infliction of grievous bodily harm; appellate intervention was also required due to considerations of parity. The appropriate aggregate sentence is 12 years and six months with a non-parole period of eight years.

Court Disposition

Leave to appeal granted; appeal allowed; sentence set aside; applicant resentenced.

Orders

  • ['Grant the applicant leave to appeal from the sentence imposed by Judge Colefax SC on 24 March 2017.' 'Appeal allowed.' 'The sentence imposed on 24 March 2017 be set aside.' 'Order that the applicant be sentenced to imprisonment by way of an aggregate sentence of 12 years and six months commencing 2 March 2017 and...