R v Franklin, Craig [2009] NSWDC 313

New South Wales District Court

CITATION: R v Franklin, Craig [2009] NSWDC 313

HEARING DATE(S): 23/06/2009

JUDGMENT DATE: 18 September 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

1.Common Assault – Convicted - Sentenced 6 months fiexed term. DECISION: 2.Take and Detain without consent – Convicted - Sentenced 24 months fixed term. 3.Sexual Intercourse without consent in circumstances of aggravation – Convicted - Non Parole Period 4 ½ years. Balance of term 3 years. 4.S. 166 CPA – AOABH – convicted sentenced 6 months fixed term.

CATCHWORDS: Criminal Law - Sentence - after trial - Aggravated Sexual Assault (prior OABH) - detain for sexual advantage - common assaault - standard non parole considerations - domestic relationship - assault in circumstances where sexual advances rejected - detaining involved forced return to motor vehicle where sexual offence took place - non-consensual fellatio - passage of some hours between assault and sexual offending - offender well effected by alcohol for all offending - vulnerability in sexual assault discussed - assessed as falling in mid-range of seriousness - victim impact statement - purpose of - limitations to use of - strong subjective matters - prior good character - strong rehabilitation prospects - issues to be considered when applying Way's case.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Gladue v The Queen [1999] 1SCR 688 [80] R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740 CASES CITED: R v Dunn [2004] NSWCCA 41 Alseedi v The Queen [2009] NSWCCA 185 Davis (1947) 75 CLR 409 at 416-417; per Latham CJ Davis (1962) 63 SR (NSW) 54 R v Way (2004) 60 NSWLR 168 Mulatto v Regina [2006] NSWCCA 282