New South Wales Court of Criminal Appeal CITATION: Regina v Shane Michael Franklin [2005] NSWCCA 24 HEARING DATE(S): 4 February 2005 JUDGMENT DATE: 4 February 2005 JUDGMENT OF: Dunford J at 1,41; Bell J at 40 DECISION: Leave to appeal granted, appeal dismissed CATCHWORDS: Criminal Law - sentencing - maliciously inflict grievous bodily harm - discount for utilitarian value of plea of guilty LEGISLATION CITED: Crimes Act 1900 R v Lynn [2004] NSWCCA 222 R v Mako [2004] NSWCCA 90 CASES CITED: R v Sutton [2004] NSWCCA 225 R v Thomson (2000) 49 NSWLR 383 PARTIES: Regina v Shane Michael Franklin FILE NUMBER(S): CCA 2004/2536 P Byrnes SC - Applicant COUNSEL: B Knox SC - Respondent Byrnes Lawyers - Applicant SOLICITORS: S Kavanagh - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/31/0320 LOWER COURT JUDICIAL OFFICER: Garling DCJ - 4 - IN THE COURT OF CRIMINAL APPEAL 2536/04 DUNFORD J BELL J FRIDAY 4 FEBRUARY 2005 REGINA v SHANE MICHAEL FRANKLIN Judgment 1 DUNFORD J: This is an application by Shane Michael Franklin for leave to appeal against the sentence imposed on him by his Honour Judge Garling in the District Court at Port Macquarie on 19 March 2004 following the applicant's plea of guilty to one count of maliciously inflict grievous bodily harm on the victim, Neil Glover, at Laurieton on Anzac Day 25 April 2002. The maximum penalty for the offence prescribed by s 35(1)B of the Crimes Act 1900 is seven years imprisonment. 2 His Honour sentenced the applicant to imprisonment for two and a half years with a non-parole period of one year four months, the sentence to commence from the date of sentencing. 3 His Honour prefaced his Remarks on Sentence by noting that there was some dispute and he was expressly making findings of fact, rather than just relying on what had been tendered to him. The facts as found by his Honour may be summarised as follows. 4 At the time of the offence the applicant had been in a relationship with Miss Smith who, by the time of sentencing, was his wife. She had previously been in a relationship with Mr Glover but that relationship had ceased, although there had been a brief resumption of it in February 2002. She wished to continue on her relationship with the applicant and they were having discussions about it. 5 They had been to a hotel but his Honour found that the applicant was not intoxicated at the time. 6 Miss Smith had gone home early to relieve a babysitter and subsequently the applicant went to her house at her invitation and was sitting on the couch with her. She rang her father but in the meantime Mr Glover had rung her from the hotel on her mobile phone and she did not wish to speak to him. Mr Glover then arrived at the premises. He was uninvited and not welcome. When the door was opened, he pushed in an aggressive manner and went into the kitchen area where Miss Smith was and was aggressive with her. The applicant went there to try and assist with no intention of assaulting Mr Glover. His Honour found that he was in fact apprehensive and a bit fearful, as Mr Glover was a much bigger man. 7 There was then an altercation during which Mr Glover pushed the applicant, who fell backwards. Miss Smith came between them. There was an altercation and she was pushed out of the way. Mr Glover was directed to leave the house, but he did not, and a fight developed. 8 His Honour accepted that Mr Glover started the fight and then the applicant punched him a number of times. 9 Mr Glover fell to the ground and the applicant also went to the ground on top of the victim. The applicant kept punching the victim with both hands to his head. 10 Mr Glover was laying there, apparently unconscious. There was blood coming out of his head, his nose was bleeding and there was a cut on his head. Blood started to appear all over his forehead. Miss Smith was attempting to get the applicant off him. 11 At about that stage Miss Smith's daughter came out of her bedroom screaming. Miss Smith left to attend to her and at about that stage the applicant picked up a chair from the dining room and hit the victim over the head with it. At that stage Miss Smith left. She said: "Whilst Glover was on the ground I didn't see him move or hit the prisoner at all. His arms were just lying there beside him." 12 She ran to the hotel to get help and various people came. When they arrived they formed a very powerful impression that Mr Glover was extremely seriously injured. He appeared to be not breathing and choking on his own blood. Fortunately someone took action and he started breathing again. The ambulance came and they took immediate action to ensure that he was stabilised. 13 Photos were tendered to his Honour which showed the applicant covered in blood in a terrible mess. 14 He was taken to hospital and he was found to have sustained a head injury. He was unconscious, had fractures of his nasal bones and the anterior and lateral walls of the right maxilla sinus and fractures of the left orbital floor. Some teeth were missing. 15 The injuries were complicated by concussion and loss of consciousness. He had to be intubated, paralysed and sedated whilst he was treated. He suffered an extensive beating and for some days was amnesic. 16 At the time of the sentencing proceedings I understand he was still unable to remember what had happened or give an account of it. 17 His Honour summarised the circumstances as follows: "I accept that the prisoner was provoked to this extent. Glover was not invited. Glover was aggressive towards Miss Smith. The prisoner stepped into the situation, and I have no criticism of that. Where the criticism arises is that Glover, having gone to the floor and being helpless, was then given a fearful beating. There was no necessity for that. That was not out of fear. That beating has not been explained. The closest explanation I have is that there originally was some fear on the prisoner's part that there was a lot of adrenalin caused by the initial incidents and that for some reason, which has not been explained, he continued on striking Glover, not only with the fist, but with part of a chair I believe to be a chair leg, until he was beaten to the state I have described." 18 His Honour noted that the plea had been entered at the earliest possible time. He noted the applicant's age and that he had two previous convictions for common assault, for which he had been fined. He noted that he had since married Miss Smith and that they had a child, that he was supporting his wife and child, was in regular employment that he had pleaded guilty and had made early admissions to police. He noted the extensive injuries to the victim and the need for personal and general deterrence. He expressed the view that as this was the applicant's third conviction for personal violence, he probably needed some assistance with anger management. He also found special circumstances. 19 The grounds of appeal relied on are as follows: 1. The sentence is excessive having regard to the finding made by the sentencing judge that the victim of the applicant's offence "was the aggressor in all of this". 2.The sentencing judge failed to give the applicant a specific and, it is submitted, sufficient discount on sentence for his plea of guilty. 3.The sentencing judge has given insufficient weight to the significant period of time which has elapsed since the commission of the offence and to the progress towards rehabilitation made by the applicant during that period. 4.The sentencing judge assessed the objective criminality of the applicant's conduct at too high a level and failed to give sufficient weight to several important mitigating factors. 20 Although his Honour found that the victim was the aggressor, in that he came to the house uninvited, entered in an aggressive manner, and pushed the applicant and started the altercation, it appears that it was the applicant who started throwing punches; and once he started he did not stop, even when the victim was defenceless on the floor and not retaliating. As already noted, he was, according to Miss Smith, just lying there apparently unconscious with blood coming out of his head, at which stage the applicant started hitting him with the chair leg. In other words, although the victim may have been the aggressor initially, the applicant's reaction and retaliation was grossly excessive and resulted in most serious injuries to the victim. 21 In oral submissions Mr Byrne SC has submitted that the incident occurred over a very short time and that in her oral evidence Miss Smith, now Mrs Franklin, had expressed some reservation about some of the matters referred to in her statement which had been quoted by his Honour as part of his findings in his Remarks on Sentence. 22 The length of time was clearly only a matter of a few minutes in any event, but the important consideration is not the length of time but the ferocity of the retaliatory attack and the injuries occasioned to the victim. Indeed, the shorter the time, the more ferocious the attack to occasion the injuries in fact suffered. 23 Miss Smith's original statement was before his Honour, it was tendered by consent, and such reservations as she expressed in her oral evidence were in fact minimal and insignificant. 24 In the light of the overall facts and the injuries to the applicant, in so far as there was any inconsistency, his Honour was entitled to accept, as he did, the version she gave in her initial statement. 25 Although his Honour referred at the beginning of his Remarks to the plea being entered at the earliest possible time, he made no further reference to any further discount or to a notional head sentence, and it is by no means clear that he in fact allowed any discount. If one assumes that in the light of the early plea he allowed a discount of 20 to 25 per cent, that represents a starting point or notional sentence of three years one and a half months to three years four months, which is probably unlikely, although I would not regard either term as necessarily outside the range. 26 Although it was conceded in R v Thomson (2000) 49 NSWLR 383 at [113] that it may not be possible or appropriate in every case to specify a discount for a plea, judges are certainly encouraged to do so, and the Guidelines set out in that case at [160] specifically include the following: "1. A sentencing judge should explicitly state that a plea of guilty has been taken into account... 2. Sentencing judges are encouraged to quantify the effect of a plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter." The Guideline goes on to say that in some cases a single combined quantification will often be appropriate. 27 As I pointed out in R v Lynn [2004] NSWCCA 222, the purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea: R v Thomson at [162]. See also R v Mako [2004] NSWCCA 90 at [21] and R v Sutton [2004] NSWCCA 225 at [16]-[17]. 28 It is not appropriate to merely pay lip service to allowing a discount for pleas of guilty by specifying a discount in percentage terms or by noting that a plea was entered at an early stage if the judge simply assesses what he or she regards as the appropriate sentence for the offence in the light of its objective and subjective circumstances and makes no further allowance for, or reference to, the discount. This can lead to a perception that although a discount has been specified, or a reference made to an early plea, no discount has in fact been allowed. I did for some time have some concern that this may be what in fact happened in the present case. 29 Although there had been a delay in the finalisation of the matter, and the applicant had made reasonably good progress to rehabilitate in the meantime, such progress was taken into account by his Honour particularly in the finding of "special circumstances". 30 Further, it was submitted that the sentencing judge assessed the objective criminality at too high a level and failed to give sufficient weight to several important mitigating factors, particularly those specified in s 21A(3): "(b) offence not part of a planned or organised criminal activity; (c) offender provoked by the victim; (d) offender acting under duress; (e) no significant record of criminal convictions; (f) a person of good character; (g) unlikely to re-offend; (h) good prospects of rehabilitation; (i) shown remorse; and (k) plea of guilty." 31 I accept that the offence was not part of a planned or organised criminal activity and that the offender was provoked by the victim, but not past the stage when the victim was lying helpless on the floor. 32 I accept that the applicant has good prospects of rehabilitation and has shown remorse and pleaded guilty, but I reject any suggestion that he was acting under duress. And in the light of his two previous convictions for assault, I would reject that he had no significant record of criminal convictions or was a person of good character. 33 As to whether he is unlikely to re-offend, this must be regarded as doubtful unless he learns to control his anger. 34 These relevant mitigating factors, as I have indicated, are however counter-balanced by a number of aggravating factors under s 21A(2), including: "(b) the actual use of violence; (c) the use of a chair leg as a weapon; (d) his record of previous convictions; and (f) that the injury and harm suffered by the victim was substantial." 35 The primary object of the criminal law is to protect citizens from physical harm at the hands of others, and crimes of personal violence, particularly when they involve serious injury, are regarded as abhorrent. 36 If one considers a notional starting point of three years - and I would not regard anything less as adequate - a head sentence of two and a half years represents a discount for the early plea of 17 per cent, which is perhaps a little low; but if one takes a starting point of three years and four months, which I would not regard as outside the range, a head sentence of two and a half years represents a discount of 25 per cent. In any event, in the light of his Honour's finding of special circumstances, he reduced the non-parole period to approximately 53 per cent of the head sentence, whereas 37 I would regard anything less than 60 per cent as unduly lenient. 38 Finally, the sentence imposed is well within the relevant statistics for this offence kept by the Judicial Commission. 39 For these reasons I am not satisfied that the sentence is excessive or that a lesser sentence is warranted in law. I therefore propose that leave to appeal be granted, but that the appeal be dismissed. 40 BELL J: I agree. 41 DUNFORD J: The order of the Court will be as I have indicated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.