Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Franklin v R [2018] NSWCCA 245 Hearing dates: 11 May 2018 Decision date: 02 November 2018 Before: White JA at [1] Johnson J at [1] Harrison J at [1] Decision: (1) Grant the applicant leave to appeal from the sentence imposed by his Honour Judge Colefax SC on 24 March 2017. (2) Appeal allowed. (3) The sentence imposed on 24 March 2017 be set aside. (4) In lieu thereof 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 expiring 1 September 2029. (5) The term is to comprise a non-parole period of eight years commencing 2 March 2017 and expiring 1 March 2025 and a balance term of four years and six months expiring 1 September 2029. (6) The earliest date on which the applicant will be eligible for parole is 2 March 2025. Catchwords: CRIMINAL LAW – Appeal – Application for leave to appeal against sentence – Break and enter and commit larceny in circumstances of special aggravation – Detention with the intention of obtaining an advantage – Where applicant was not charged with the most serious iteration of the offence under s 112(3) of the Crimes Act 1900 (NSW) – Where applicant did not perpetrate act of violence himself – Parity – Whether sentence was manifestly excessive – Leave granted – Appeal allowed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A, ss 23, 32, 33, 54A Crimes Act 1900 (NSW), ss 33A, 86, 105A, 112 Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 Akkawi and Akkawi v R (No 2) [2013] NSWCCA 72 Tattersall v R [2011] NSWCCA 282 Akkawi v R [2012] NSWCCA 11 Brown v R [2010] NSWCCA 73 Burrows v The Queen [2017] NSWCCA 45 Director of Public Prosecutions (NSW) v Cornwall [2007] NSWCCA 359 House v The King (1936) 55 CLR 499; [1936] HCA 40 Mulato v The Queen [2006] NSWCCA 282 Hughes v The Queen [2018] NSWCCA 2 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kiernan v The Queen [2016] NSWCCA 12 Lin v The Queen [2006] NSWCCA 258 McAuliffe v The Queen (1995) 183 CLR 108 Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 Patson v The Queen [2018] NSWCCA 129 Postiglione v The Queen (1997) 189 CLR 295 R v Evans (No 3) [2017] NSWSC 1523 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Rossi (SACCA, 20 April 1988, unreported) R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at 717, [57]) R v Sinclair [2017] NSWSC 686 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 Re Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Sheen v The Queen [2014] NSWCCA 42 Skocic v The Queen [2014] NSWCCA 225 Tattersall v R [2011] NSWCCA 282 Category: Principal judgment Parties: Sam Franklin (Applicant) Regina (Respondent) Representation: Counsel: K Averre (Applicant) B Hatfield (Respondent) Solicitors: A A Criminal Law (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/307989 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: N/a Date of Decision: 24 March 2017 Before: Colefax SC DCJ File Number(s): 2014 Judgment 1. THE COURT: This is an application for leave to appeal against sentence. The applicant, who is given the pseudonym Sam Franklin, pleaded guilty before Colefax SC DCJ to offences against s 112(3) of the Crimes Act 1900 (NSW) ("the Crimes Act") and s 86(2)(a) of the Crimes Act. 2. The first offence with which Franklin was charged was that on 28 April 2014 he did break and enter a dwelling house in Medway Road, Medway and committed a serious indictable offence therein, namely larceny, in circumstances of special aggravation, namely that he was in the company of Ryan Evans and [Kurt Sinclair] and inflicted grievous bodily harm to Brett Delamont whilst being reckless as to causing actual bodily harm. 3. The second offence was that on 28 April 2014 at Medway he did, without consent, detain Alana Bush with the intention of obtaining an advantage, namely a financial advantage while in company of Ryan Evans and [Kurt Sinclair]. 4. The name Kurt Sinclair is a pseudonym for one of the two co-offenders. 5. The first offence carried a maximum penalty of imprisonment for 25 years. It carried a standard non-parole period of seven years (Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A, item no. 13). 6. The second offence carried a maximum penalty of imprisonment for 20 years. 7. The prosecutor filed a list of two additional charges (Form 1) specifying other offences with which Franklin had been charged but not convicted. Franklin admitted guilt to the further offences and indicated that he wished the Court to take them into account in dealing with him for the offence of Specially Aggravated Break and Enter and Commit Serious Indictable Offence contrary to s 112(3) of the Crimes Act (Crimes (Sentencing Procedure) Act, s 32(1)). The sentencing judge was initially reluctant to certify the Form 1 matters, no doubt because they were themselves serious offences involving separate victims (Crimes (Sentencing Procedure Act) s 33(2)(b)). Ultimately, he considered it appropriate to do so, and did so (Crimes (Sentencing Procedure) Act, s 33). 8. The two additional charges considered on the Form 1 for the s 112(3) offence were aggravated detention of Ms Kirby Delamont contrary to s 86(2)(a) of the Crimes Act and specially aggravated detention of Mr Jack Lisle contrary to s 86(3) of the Crimes Act. 9. Colefax SC DCJ imposed an aggregate sentence of 14 years. His Honour fixed a non-parole period of eight years and five months. The sentence commenced on 2 March 2017. The non-parole period will expire on 1 August 2025 and the balance term will expire on 28 February 2031. In fixing this sentence the sentencing judge allowed a discount of 45 per cent. Franklin received a 25 per cent discount for an early plea of guilty and an additional 20 per cent discount pursuant to s 23 of the Crimes (Sentencing Procedure) Act for assistance and undertaking to provide assistance to law enforcement authorities in the detection of or in proceedings relating to the offences of Franklin's co-offenders. 10. The sentencing judge said: "In relation to the specially break and enter and commit serous indictable offence and taking into account the two matters on the Form 1, the indicative sentence is 20 years imprisonment minus the discount of 45%, that is 11 years imprisonment. The indicative non-parole period is six years seven months. In relation to the offence of detain in company with intent, the indicative sentence is 15 years imprisonment minus the discount of 45%, that is eight years imprisonment. Those sentences would not have been totally concurrent. There would have been substantial accumulation." 1. If leave to appeal is given, the grounds of appeal are: "1. The sentencing judge erred in his approach to determining the objective seriousness of count one on the indictment. 2. The applicant has a justifiable sense of grievance when comparing the sentence imposed upon him against the sentence imposed upon the co offenders Kurt Sinclair and Ryan Evans. 3. The applicant's sentence was manifestly excessive." 1. Before turning to these grounds it is necessary to describe the circumstances of the offending. They have also been described in judgments of R A Hulme J in his Honour's sentencing of Franklin's co-offenders (R v Sinclair [2017] NSWSC 686 and R v Evans (No 3) [2017] NSWSC 1523). Circumstances of the offence 1. The following description is drawn from an agreed statement of facts and the sentencing judge's findings as to Franklin's involvement. 2. The crimes were committed from about 1:00 am on the morning of Monday, 28 April 2014. The four victims were Mr Brett Delamont aged 50, his partner Ms Alana Bush aged 49, their daughter Ms Kirby Delamont aged 20, and her boyfriend Mr Jack Lisle aged 20. They resided at a 30-acre rural property in Medway surrounded by acreage homesteads. On the night of Sunday, 27 April Mr Delamont and Ms Bush retired to their bedroom at one end of the house. Ms Delamont and Mr Lisle retired to Ms Delamont's bedroom at the other end of the house. Ms Delamont turned off all the lights in the house. External doors were closed but many were unlocked. 3. Franklin was an interstate truck driver. According to Franklin, he met Evans and Sinclair through his brother. On Friday, 25 April 2014 Franklin, Sinclair and Evans travelled in Franklin's truck to Taree. In his interview with police on 20 October 2014 Franklin said that Evans and Sinclair were "thick as thieves" and he was aware that they were involved in stealing cars and trailers. He said that Evans asked him to do a "job" with him and Sinclair. He told the police that his understanding was that the job meant stealing a bike or some sort of machinery to sell from a place near Bowral and he was led to believe that the machinery would be located within a shed on a property that belonged to Sinclair's ex-girlfriend. The sentencing judge rejected Franklin's evidence that at the commencement of his involvement in the joint criminal enterprise he was led to believe by Evans and Sinclair that the object was not to effect a robbery of residential premises, but to steal quad bikes and farm machinery from a shed on the semi-rural property. 4. On Sunday, 27 April 2014 Franklin, Sinclair and Evans returned from Taree and drove to premises of Evans' father at Eldersley near Camden. Franklin drove a Ford Falcon sedan from the Eldersley property to the Medway property, arriving at the Medway property with Sinclair and Evans at about 1:00 am on 28 April. The primary judge noted that it was inherently implausible that a sedan would be used if the intended purpose of the enterprise was stealing quad bikes and/or farm machinery. 5. Each of the three men was wearing predominantly dark clothing, hooded jumpers, gloves, sunglasses and had fabric concealing his face. In the car were torches, various rolls of duct tape and sections of rope. Franklin told investigators that he saw the rope, tape and a pole-like object in the car. That object was the wooden handle of an axe or pick. 6. The three men gained entry to the residence by opening an unlocked laundry door. Upon entry Evans and Franklin went directly to the bedroom where Ms Bush and Mr Delamont were asleep. They knew from what Sinclair had told them that there would be substantial cash and a gun in the house. Evans was armed with the axe or pick handle. Franklin carried a torch. 7. Upon entering the bedroom, Evans walked to the side of the bed where Mr Delamont was asleep and struck him a number of times to his upper torso and head with the wooden club. He beat him unconscious. Ms Bush woke and immediately became aware of the presence of two males in the room. She began to scream and continued to scream as loudly as she could, hoping to wake Ms Delamont and Mr Lisle to alert them to the danger. Evans told Ms Bush to shut up. When she continued to scream he lunged at the bed with the weapon. Both he and Franklin again told her to shut up. Mr Delamont did not respond to Ms Bush's screams. He lay motionless with a large amount of blood around his head and on the bedding. 8. Evans proceeded to bind Mr Delamont's hands with one roll of duct tape. Franklin used a second roll of tape to bind Ms Bush's hands. 9. When Ms Bush began to scream again, Evans again struck Mr Delamont to the upper torso with the weapon and told her to shut up or he would hit him again. Evans demanded to know where the cash was kept. Ms Bush deliberately took her time in an attempt to keep them in her room and away from Ms Delamont and Mr Lisle. She directed Evans to a chest of drawers where $4,000 was stored. Evans said there had to be more money and said "Tell me where it is or I'll hurt you". Ms Bush directed Evans to a chest of drawers on the other side of the bedroom. Evans and Franklin stood next to Ms Bush at the second set of drawers. Evans was holding the weapon and Franklin was shining the torch. They located and removed a further $4,000. Ms Bush referred to Evans as the aggressive male and Franklin as the passive male. At no time did Franklin make any effort to restrain Evans. 10. Evans demanded more money from Ms Bush. After saying there was no more money, Ms Bush told him that there was a small amount of money in a tin in the office. Evans demanded "where are the phones?". Ms Bush told him they just had mobile phones. Her phone and iPad and Mr Delamont's phone were taken by Franklin and Evans. 11. Evans demanded "Where is your gun?". Ms Bush was shocked that Evans knew they had a firearm. She directed him to a walk-in wardrobe. Evans and Franklin there located Mr Delamont's .22 magnum rifle. Evans asked for ammunition. Ms Bush was terrified what they would do with a loaded gun and despite knowing where the ammunition was located, screamed "I don't know where they are ... we don't have any". 12. Evans demanded to be told who else was in the house. Ms Bush kicked Mr Delamont. He was not responsive. She believed he was dying. She reluctantly told Franklin and Evans that Ms Delamont and Mr Lisle were present at the other end of the house. Evans left the room. He turned on a hall light which allowed further light into the bedroom. 13. Franklin stayed in the bedroom with Ms Bush. Ms Bush pleaded with Franklin, saying "He is crazy. Please don't let him hurt us" and "go get the crazy guy out of my daughter's room. He will kill her. He will hurt her." Franklin responded "No-one is going to get hurt." This was said when Mr Delamont had been brutally bashed and was unconscious. Franklin did not attempt to intervene to protect Ms Delamont. 14. Ms Bush referring to Mr Delamont said "Look at the hole in his head. Look at this. He has killed my husband." Franklin picked up a T-shirt from the floor and handed it to Ms Bush telling her to hold it against Mr Delamont's head. With her hands still bound she held the shirt against his head to stem the blood. Ms Bush said to Franklin "We need help. He is bleeding. He is shaking, I think he is going to die." Franklin said "I'll ring someone when we leave". There is no evidence of such a call being made. 15. Meanwhile, while Franklin stayed with Mr Delamont and Ms Bush in one bedroom, Evans and Sinclair entered the bedroom at the other end of the house where Ms Delamont and Mr Lisle had been asleep. Mr Lisle woke to hear Ms Bush's screaming. He woke Ms Delamont. He asked her to hand him his phone, but before he could use it Sinclair and Evans entered. Evans was armed with the wooden club. Mr Lisle pulled the blanket over himself and lay on top of Ms Delamont. Evans struck him a number of times with what Mr Lisle described as a pole. One of the men ordered "Face down, face down" and "Give us your fucking phones and wallets". Mr Lisle and Ms Delamont stayed under the covers, terrified and did not move. They remained there for approximately five minutes. They were directed to sit up with their eyes closed. Their hands were bound with duct tape. Pillow cases were placed over their heads. Their phones were taken. 16. After about five minutes Sinclair entered Ms Bush and Mr Delamont's bedroom. Franklin approached the bed and told Ms Bush to put her feet out. She thought she was going to be raped. Wearing a shirt and underwear she asked Franklin to let her put her pants on. He refused her request, but when she put her feet out from under the covers he pulled the covers across her leg to cover her. She described this to the police as his showing her some respect. Franklin proceeded to tape her ankles together with duct tape. Sinclair dragged Mr Delamont's feet out from under the covers and taped his ankles with a different roll of duct tape. He used a piece of rope to tie up Mr Delamont's hands over the top of the duct tape while he lay shaking and convulsing. Despite her hands being bound Ms Bush was attempting to hold the shirt to Mr Delamont's head. 17. Franklin placed a pillow case over Ms Bush's head and Sinclair placed a pillow case over Mr Delamont's head. Ms Bush was terrified that they would be killed. She pleaded with the two men not to kill them. Sinclair said nobody was going to get hurt. Franklin told her to be quiet. 18. Sinclair and Franklin left the room. Ms Bush waited until she could not hear any noise before removing the tape from her ankles and creeping down the hallway to the office where a landline phone was located. She dialled 000 at 1:29 am and police and ambulance officers were immediately dispatched. Ms Bush attended Ms Delamont's bedroom and cut the bindings from Ms Delamont's and Mr Lisle's hands and feet. They had been unable to remove those bindings. Ms Bush told them to assist Mr Delamont. He was found in his room lying in the foetal position, bound by duct tape, violently shaking, his face covered in blood. 19. The three offenders left the residence with over $8,000, the firearm and its case, a number of handbags, a watch, Mr Delamont's wallet, four mobile phones and two iPad devices. 20. This was an horrific, violent home invasion that left Mr Delamont seriously injured with a fractured skull and bruising to the brain. He suffered a wound to the right side of his head that was three centimetres wide and one centimetre deep. He was in hospital for two weeks and for the first five days he was suffering post-traumatic amnesia. He needed to redevelop everyday skills such as walking, eating, dressing and showering. He suffered initial language impairment and required ongoing speech therapy, occupational therapy and physiotherapy. He needed to learn to drive again. Nineteen months after the attack he still showed difficulties and limitations, including reduced attention and information processing that affected his ability to hold lengthy information and meant he had to consistently learn and remember new information. He was no longer able to perform his managerial role as the owner and director of his drilling company which employed approximately 12 staff members. He has no recollection of the incident. He remained unstable on his feet and suffered a number of vertigo episodes. He suffered nausea and was unable to get out of bed. His victim impact statement reported that he experienced vertigo as a daily part of his life. His speech remains defective. He can only maintain a short-term focus on any activity. He seems to fatigue very easily and feels exhausted most of the time every day. His sense of smell has suffered. 21. Ms Bush, whose courage was rightly praised by the sentencing judge, provided a victim impact statement in which she described her feelings of helplessness in being unable to render assistance to her partner whom she thought was dying, guilt that she was unable to protect her daughter and her daughter's boyfriend from the violent incident, and terror at what might happen to her daughter. She remains traumatised. She cannot sleep easily. Mr Delamont's brain injury created great family upheaval. She said that: "... [I]t's like living with a stranger, Brett had no filter, there were many tough emotional times during the past few years that have almost torn the family apart. But I have to constantly remind myself that it wasn't the real Brett talking, his brain has been injured and he now doesn't function the way he used to. He suffered from a diminished intellectual skill level. This has been a complete change of our lives to deal with this." 1. Staff from the business had to be laid off and new work was not taken. Ms Bush said that she struggled with constantly feeling unsafe in her own house and that every night she checks and double checks a security system that was installed, keeps vigil until she is exhausted and has to go to bed, and then lies watching the bedroom door and the security panel for as long as she can stay awake. She said: "Every night I fall asleep with two masked men at the foot of my bed. It is broken and unrestful sleep that averages about four hours a night, my sleep patterns are totally altered after this incident. I feel as though I go through each day in a tired haze. I can't shake the dreadful memory of the terror I experienced." 1. Franklin did not inflict the blows on Mr Delamont. But he stood by while those blows were inflicted. He made no attempt to restrain Evans. He carried the torch. He bound Ms Bush's hands. Later he bound her feet and put the pillow case over her head. He and his co-offenders left the four victims bound with their heads covered by a pillow case and took their mobile phones, evidently believing Ms Bush's statement that there was no landline. They left Mr Delamont severely wounded, falling in and out of consciousness and possibly dying. Franklin told Ms Bush that he would ring someone when they left. He gave no evidence that he did so. Remarks on sentence 1. The sentencing judge described the objective seriousness of the offences as follows: "In terms of objective seriousness for offences of their kind, each is above mid-range offences and well into the upper end of the range of objective seriousness. Indeed if they are not at the upper end of their range they are not far below it. Mr [Franklin] is criminally culpable for the full range of activities undertaken that evening. He is also morally culpable for the full range of those activities – except for the blows to Mr [Lisle], there is no evidence to suggest he was aware that such an act was to be part of the joint criminal enterprise; nor for the initial blows to Mr Delamont – but after those initial blows he is morally responsible in that he took no action to discourage Mr Evans from those gratuitous, vicious, and cowardly acts – and he did not withdraw from the joint criminal enterprise." 1. At the time of sentence Franklin was 37 years old. He has four children. As noted above he worked as an independent subcontractor for various Sydney-based trucking companies. The primary judge found that his business was in significant debt. Immediately before the offending conduct his truck was about to be repossessed. He had an addiction to methylamphetamine. The primary judge accepted that his financial difficulties were aggravated by the theft of $9,000 worth of fuel by one of his younger brothers. The primary judge rejected his evidence that his only reward for participating in the offences was $300 worth of ice. He and his wife had separated in 2013 because of Franklin's increasing use of illicit drugs. The primary judge recorded that, although having separated, Franklin continued to receive strong moral support from his wife in his battle with drug addictions. He had no prior convictions. In January 2015 he went to live with his parents. He did not receive any formal rehabilitation treatment but achieved self-imposed abstinence from ice that he last used in 2015. The primary judge recorded that if he remained drug-free that would be an important step in his criminal rehabilitation and assessed his prospects of rehabilitation as being reasonable. 2. The primary judge did not accept that Franklin was genuinely remorseful. One of the reasons the primary judge was not persuaded that there was genuine remorse was Franklin's unsuccessful attempt to minimise his responsibility for his actions. 3. Because of his assistance to authorities the sentencing judge said it would be necessary for Franklin to serve his term of imprisonment almost exclusively in protective custody. For that reason alone he found special circumstances to vary the standard ratio of the head sentence to the non-parole period. 4. There was no challenge to the sentencing judge's rejection of Franklin's evidence to the effect that he was misled at the outset as to the nature of the criminal enterprise in which he was asked to join. Nor was there a challenge to the sentencing judge's finding that Franklin did not have genuine remorse for his conduct. Ground 1 of the appeal: objective seriousness of count 1 on the indictment 1. Franklin submitted that the sentencing judge did not give sufficient weight to the fact that he perpetrated no acts of violence himself. He pointed to the fact that the indicative sentence for the first of the offences was 20 years' imprisonment before the discount for the plea of guilty and assistance to authorities. The maximum term for the offence was 25 years. He submitted that his offence could not properly be characterised as not far below the upper end of the range for objective seriousness. This was partly because he did not inflict the blows to Mr Delamont, and partly because he was not charged with the most serious iteration of the offence, namely intentionally wounding or intentionally inflicting grievous bodily harm. 2. Sections 112 and 105A of the Crimes Act relevantly provide: "112 Breaking etc into any house etc and committing serious indictable offence (1) A person who: (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or (b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence and liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years", "105A Definitions (1) In sections 106–115A:... circumstances of aggravation means circumstances involving any one or more of the following: (a) the alleged offender is armed with an offensive weapon, or instrument, (b) the alleged offender is in the company of another person or persons, (c) the alleged offender uses corporal violence on any person, (d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (e) the alleged offender deprives any person of his or her liberty, (f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed. circumstances of special aggravation means circumstances involving any or all of the following: (a) the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person, (b) the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person, (c) the alleged offender is armed with a dangerous weapon. (2) The matters referred to in: (a) paragraph (c), (d) or (e) of the definition of circumstances of aggravation, or (b) paragraph (a) or (b) of the definition of circumstances of special aggravation, can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred." 1. As noted above, the first count on the indictment against Franklin was that he did break and enter and committed a serious indictable offence, namely larceny, in circumstances of special aggravation, those being that he was in the company of Evans and Sinclair and inflicted grievous bodily harm to Mr Delamont whilst being reckless as to causing actual bodily harm (emphasis added). This charge was the result of negotiation between the Crown and the defence. It appears to involve Franklin's accepting that he was responsible for the acts of Evans in inflicting grievous bodily harm, the Crown's accepting that Franklin did not foresee the possibility that Evans would intentionally inflict grievous bodily harm on the occupants of the house and therefore was not criminally liable jointly with Evans for Evans' intentional wounding of and infliction of grievous bodily harm upon Mr Delamont, and Franklin's accepting that he foresaw the possibility that Evans might be reckless as to causing actual bodily harm (McAuliffe v The Queen (1995) 183 CLR 108 at 117-118; Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 at [4], [37]). 2. The question of whether or not Franklin could or should have been charged with the more serious circumstance of special aggravation provided for in para (a) of the definition of that phrase in s 105A of the Crimes Act, does not arise. It is axiomatic that he cannot be punished for a more serious offence than that of which he was convicted. 3. It is not in dispute that it was necessary for the sentencing judge to have regard to the particular conduct of the offender with a view to identifying his or her level of culpability for the offence for which he or she is responsible under the doctrine of joint criminal enterprise or extended joint criminal enterprise (Burrows v The Queen [2017] NSWCCA 45 at [37]; R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [161]; Sheen v The Queen [2014] NSWCCA 42 at [14]). 4. The sentencing judge did not refer to the fact that Franklin had not been charged with the most serious iteration of the offence. Counsel appearing for Franklin at the hearing on sentence relied on the fact that Franklin was charged and admitted guilt because it was within his contemplation that Evans might have been reckless as to causing actual bodily harm upon one or more of the occupants of the residence, which was a less serious offence than contemplating that Evans might intentionally inflict grievous bodily harm upon one of the occupants. The sentencing judge did not refer to this submission. His remarks on sentence were made ex tempore and due allowance must be made for that. Nonetheless the omission to refer to this substantial argument connotes error. The sentencing judge said that Franklin was criminally culpable for "the full range of the activities undertaken that evening". The full range of those criminal activities included Evans' intentionally inflicting grievous bodily harm on Mr Delamont. (That was the offence for which Evans was charged and of which he was convicted (R v Evans (No. 3) [2017] NSWSC 1523 at [2])). Franklin was not charged with criminal responsibility for that offence. 5. The sentencing judge went on to say, correctly, that Franklin was morally responsible for the blows to Mr Delamont, after the initial blows, in that he took no action to discourage Evans from his attacks and did not withdraw from the criminal enterprise. 6. Notwithstanding that Franklin was not charged with the most serious iteration of an offence under s 112(3) the sentencing judge was correct in his assessment that Franklin's culpability was not far below the upper end of the range of objective seriousness. His Honour recognised that his offending was not at the upper end of objective seriousness. That is reflected in the fact that the indicative sentence for this count was 20 years' imprisonment, whereas the maximum sentence was 25 years' imprisonment, and that the indicative sentence of 20 years' imprisonment took into account the two Form 1 offences. Those offences were serious. Franklin accepted that he had joint criminal responsibility for the attacks on Ms Delamont and Mr Lisle, notwithstanding that he did not personally attack them. Consistently with Re Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [39], the sentencing judge did not determine what would be appropriate sentences for the offences listed on the Form 1, but his Honour was entitled to increase the sentence that would otherwise have been imposed to account for the admitted criminality in respect of the Form 1 offences. They demonstrated a greater need for personal deterrence and retribution in respect of the s 112(3) offence charged in the indictment (Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22] and [64]). 7. It is well established that a finding of objective seriousness involves a discretionary judgment that is not reviewable on appeal, except on the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 (Mulato v The Queen [2006] NSWCCA 282 at [46]; Kiernan v The Queen [2016] NSWCCA 12 at [48]). The sentencing judge's assessment of the objective seriousness of the offence is liable to be reviewed on the principles in House v The King because his Honour failed to take into account that Franklin was not charged with the most serious iteration of the offence. The sentencing judge's failure to assess the objective seriousness of the offence taking into account that Franklin was not charged with the most serious iteration of the offence means that the sentencing discretion must be re-exercised (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]). 8. It may not strictly be necessary to deal with the remaining grounds of appeal. But in deference to the submissions advanced by counsel for Franklin, and because it will in any event be necessary in resentencing to consider questions of parity and to consider the submissions made by counsel for Franklin as to the statistics and allegedly comparable sentencing decisions relied on, such consideration is appropriate. In the exercise of the resentencing discretion conclusions on those issues will be applied without unnecessary repetition. Ground 2 of the appeal: parity with sentences imposed on Sinclair and Evans 1. Sinclair and Evans were charged not only with respect to the offences committed by them at the Medway property, but for further offences committed by them at Badgery's Creek on 30 May 2014 where there was a similar home invasion and the infliction of violence. In that case one of the occupants, Mr Keith Cini, was murdered and the other, Ms Luciana Boldi suffered grievous bodily harm. Sinclair pleaded guilty to the offences. Evans pleaded not guilty, but was convicted. For the offences committed at both Badgery's Creek and at Medway Sinclair was sentenced to an aggregate term of imprisonment for 38 years with a non-parole period of 28 years and six months (R v Sinclair [2017] NSWSC 686). Evans was sentenced to an aggregate sentence of imprisonment for 48 years with a non-parole period of 36 years (R v Evans (No 3) [2017] NSWSC 1523). The issues of parity arise from the indicative sentences for the Medway offences. In sentencing Sinclair, R A Hulme J considered the issue of parity with the sentence imposed on Franklin. His Honour said: "[170] After allowing for a 45 per cent reduction on account of Mr Franklin's pleas of guilty and his undertaking to give evidence against others, his Honour Judge Colefax SC imposed an aggregate sentence of 14 years with a non-parole period of 8 years and 5 months. The individual sentences were assessed as 20 years and 15 years respectively, each reduced by 45 per cent to 11 years and 8 years respectively. [171] It is not appropriate that I express a view about the very high starting points adopted by Judge Colefax for the individual sentences except to say that they leave limited scope for the application of the parity principle in respect of a co-offender with a higher degree of culpability. I have assessed the sentences for the present offender in the light of my findings as to the objective seriousness of the various offences and all of the other facts and circumstances concerning the offences and the offender. ... [176] An aggregate sentence will be imposed. If I had imposed individual sentences they would have been as follows: ... (3) Specially aggravated break, enter and steal (with intentional infliction of grievous bodily harm upon Mr Brett Delamont): 12 years with a non-parole period of 9 years. (4) Aggravated detain for advantage (Ms Alana Bush): 8 years 6 months. (5) Aggravated detain for advantage (Ms Kirby Delamont): 8 years 6 months. (6) Specially aggravated detain for advantage (Mr Jack Lisle): 9 years." 1. This indication was given after a discount of 35 per cent (at [177]) with indicative sentences before discount of 18 years and five and a half months for the offence of specially aggravated break enter and steal with intentional infliction of grievous bodily harm upon Mr Delamont, 13 years for aggravated detain for advantage of Ms Bush, 13 years for aggravated detain for advantage of Ms Delamont, and 13 years and ten months for specially aggravated detain for advantage of Mr Lisle. 2. The indicative sentence imposed upon Evans for break, enter and steal in circumstances of special aggravation (being in company and intentionally inflicting grievous bodily harm on Mr Delamont) was imprisonment for 20 years with a non-parole period of 15 years (R v Evans (No 3)). The indicative sentences for Evans for detaining Ms Bush with intent to obtain a financial advantage while in company was imprisonment for 13 years, for detaining Ms Delamont with intention to obtain a financial advantage while in company was imprisonment for 13 years and for detaining Mr Lisle with intent to obtain a financial advantage while in company and causing actual bodily harm was imprisonment for 14 years. 3. R A Hulme J observed that it was not contended that in sentencing Evans he should have regard to the sentencing of Franklin for his involvement in the Medway offences (R v Evans (No 3) at [125]). 4. When one takes into account that the indicative sentence imposed on Franklin for count 1 on the indictment took into account his two Form 1 offences, whereas the indicative sentences for Evans provided for separate sentences that would have been partially accumulated, the complaint of disparity between the sentences imposed upon Franklin and Evans is not established. 5. In any event, it may be doubted that Franklin could have a justifiable sense of grievance when Evans' indicative sentence was but part of an overall aggregate sentence that involved other offending leading to a sentence of 48 years of imprisonment. (See by analogy Postiglione v The Queen (1997) 189 CLR 295 at 308 per McHugh J citing R v Rossi (SACCA, 20 April 1988, unreported).) 6. In sentencing Sinclair, R A Hulme J said (at [132]): "[132] In relation to the Medway offences I am particularly mindful of the fact that the offender was instrumental in the formulation and execution of the armed intrusion by three masked men. The offences were committed against people who were asleep in a home in a semi-remote rural location. Substantial physical injury was caused to Mr Delamont, beyond that necessary to make out the element of grievous bodily harm, and substantial emotional harm was caused to all of the occupants." 1. The indicative sentences for the four offences committed by Sinclair at Medway must be understood on the basis that Sinclair had a high degree of culpability because he identified and proposed the Medway property as the target. He pleaded guilty to the most serious iteration of the offence under s 112(3). He was sentenced on the basis that he foresaw that the infliction of grievous bodily harm was something that may well occur (R v Evans (No 3) at [110]). 2. The indicative sentence for Sinclair for specially aggravated break enter and steal with intentional infliction of grievous bodily harm upon Mr Delamont before discount was 18.46 years which was less than the indicative sentence before discount of 20 years' imprisonment for Franklin. But the indicative sentence for Franklin took into account the two matters on the Form 1. That was not the case with Sinclair. There were separate indicative sentences for Sinclair for aggravated detain for advantage of Ms Delamont (eight years and six months) and specially aggravated detain for advantage (Mr Lisle) of nine years for the offence under s 86(2)(a) of the Crimes Act. 3. The indicative sentence for Sinclair of aggravated detain for advantage of Ms Bush (13 years before discount) was less than the indicative sentence for Franklin (15 years before discount). Sinclair was not present in the bedroom when the detention of Ms Bush commenced, but he was present when Franklin tied up Ms Bush as described above at [28]-[30]. 4. When account is taken of Franklin's role in standing by whilst Evans inflicted grievous bodily harm on Mr Delamont and his greater culpability in respect of the offences against Ms Bush, and when account is taken of the two Form 1 offences in the case of Franklin which were the subject of separate indicative sentences in the case of Sinclair, it is difficult to assess whether there is a lack of parity in the sentences imposed on Sinclair and Franklin with respect to the first of the Medway offences. Nonetheless, having regard to Sinclair's greater culpability and his conviction for a more serious iteration of the offence under s 112(3), there is force in Franklin's submission, that he has a justifiable grievance arising from disparity with the sentence imposed on Sinclair. Disparity of sentences is more clearly established with respect to the offences under s 86(2)(a). This ground of appeal should be upheld in so far as there is a disparity between the indicative sentences for Franklin and Sinclair. Ground 3 of the appeal: manifest excess 1. There were three strands to Franklin's argument that the sentence imposed was manifestly excessive. First, he emphasised the ameliorating circumstances of the offending so far as his involvement was concerned and he submitted that he had a strong subjective case. Secondly, he referred to statistics published by the Judicial Commission for offences against s 112(3) and s 86(2)(a) of the Crimes Act. He submitted that the statistics show that the starting point sentence of 20 years for the offence under s 112(3) was well beyond the top of the range, the next highest being 14 years. (The statistics do not reflect the sentences imposed on Sinclair and Evans.) Franklin said after the discount of 45 per cent is taken into account only five of 100 offenders had a greater sentence imposed than the indicative sentence for the s 86(2)(a) offence. Franklin submitted that the indicative sentence of 15 years' imprisonment before application of the discount of 45 per cent was well beyond the top of the range and that considering 81 offenders who received some discount for a plea of guilty, his indicative sentence (after a discount of 25 per cent for the plea of guilty) was above that of all but two of 81 offenders. He submitted that considering 13 offenders who, like him, had no prior record, even after applying the complete 45 per cent discount his indicative sentence for the s 86(2)(a) offence sat above all sentences applied to the 13 offenders in a like category by three years. 2. Thirdly, Franklin referred to four cases said to provide some assistance in demonstrating that the sentence was excessive. In three cases the offences were against s 86(2) or (3), that is either an aggravated offence or a specially aggravated offence of detaining a person without his or her consent with the intention of committing a serious indictable offence or of obtaining other advantage. One of the cases also involved a contravention of s 112(2). 3. An applicant who seeks to demonstrate that the sentence passed is manifestly excessive must demonstrate that the sentence was unreasonable or plainly unjust, or is otherwise liable to be reviewed on the principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. In Hughes v The Queen [2018] NSWCCA 2 the Court (Payne JA, R A Hulme and Garling JJ) said (at [86]): "[86] When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v R (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust." 1. Their Honours added (at [88]) that: "Matters of weight are very much in the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: Yang v R [2012] NSWCCA 49 at [25]". 1. Two points are of particular importance. First, that appellate intervention is not justified simply because the result arrived at by the sentencing judge is markedly different from sentences imposed in other cases. Secondly, that it is not to the point that the appellate court might have exercised the sentencing discretion differently. 2. As to the first point, the observations of Bellew J (with whom Macfarlan JA and Fullerton J agreed in Skocic v The Queen [2014] NSWCCA 225 at [19]) are relevant. His Honour's statement of relevant principles included that care is needed in the use of statistics; that references to the lengths of sentences that say nothing about why the sentences were fixed is of limited utility; that sentences imposed in other cases do not mark the outer boundaries of permissible sentencing discretion; and the fact that a particular sentence imposed is the highest sentence that has been imposed for that offence does not demonstrate that the sentence is unduly harsh. What is required is consistency in the application of relevant principles. The facts of individual offences and the subjective circumstances of individual offenders will be infinitely variable. Moreover, the use of statistics as a yardstick against which to measure the sentence imposed is problematic when the sentence imposed takes account of Form 1 matters (Patson v The Queen [2018] NSWCCA 129 at [45]). 3. In relation to the first strand of Franklin's argument, counsel reiterated the point made on the first ground of appeal, namely, that Franklin, unlike Sinclair and Evans, was not convicted of the most serious iteration for the break and enter offence, namely, the intentional wounding or causing grievous bodily harm to Mr Delamont. That must be acknowledged. It was not mentioned by the sentencing judge in the course of his ex tempore remarks on sentence. 4. Counsel for Franklin stressed that Franklin did not perform any of the acts that caused physical harm to Mr Delamont. Clearly the sentencing judge took that into account. Counsel submitted that the sentencing judge found that there was no evidence to suggest that Franklin was aware that any of the acts causing physical harm to Mr Delamont were to be part of the joint criminal enterprise. In the passage referred to, the sentencing judge was referring to acts causing physical harm to Mr Lisle rather than to the blows to Mr Delamont. Nonetheless, the sentencing judge should have proceeded on that basis. Had Franklin been aware that intentional wounding or the intentional infliction of grievous bodily harm was to be or might be part of the joint criminal enterprise, then he would have been charged with the more serious iteration of the offence. It is not clear whether the sentencing judge did proceed on that basis. 5. Counsel referred to Franklin's having rendered minor assistance to Mr Delamont and to Ms Bush's description of his behaviour as passive, to which one can add her statement that he showed respect in covering her legs. Counsel submitted that the evidence was unclear as to whether Franklin entered the room of Ms Delamont and Mr Lisle. In fact, it seems from the statement of agreed facts that he did not, but remained in Mr Delamont's and Ms Bush's bedroom whilst the invasion of Ms Delamont's bedroom took place. 6. Counsel submitted that Franklin had a strong subjective case in that his only criminal antecedent was a minor traffic offence dealt with in 2001. The judge said he had no prior convictions. He had not previously been in custody. He had experienced long-term drug addiction to methamphetamines, but had commenced self-rehabilitation from 2015 and he continued to receive strong support from his family in handling that addiction. He had reasonable prospects of rehabilitation. These are all matters that the sentencing judge took into account. The sentencing judge also took into account in assessing Franklin's subjective case that he was not satisfied that he showed genuine remorse. There is no appeal from that finding and it is justified by the sentencing judge's rejection of Franklin's unsuccessful attempt to minimise his responsibility. 7. For the reasons at para [67] above the reference to the statistics for the offending in respect of s 112(3) matters is not of assistance. The statistics in relation to the s 86(2) matters are also not of assistance. That is so not only for the reasons referred to above, but also because had the sentences been imposed separately, there would have been substantial accumulation and that is reflected in the aggregate sentence that was imposed. 8. Counsel for Franklin referred to the following decisions as being of assistance in demonstrating that the sentence imposed was excessive. They were Lin v The Queen [2006] NSWCCA 258, Akkawi v R [2012] NSWCCA 11 (and see Akkawi and Akkawi v R (No 2) [2013] NSWCCA 72), Tattersall v R [2011] NSWCCA 282 and Director of Public Prosecutions (NSW) v Cornwall [2007] NSWCCA 359. 9. None of these decisions provides a useful comparison. The issue in Lin was different. It concerned issues of parity between the sentencing of co-offenders who played different parts in a joint criminal enterprise but were equally morally culpable. The facts were remote from those in the present case. The facts in Akkawi were sufficiently different to make any comparison problematic. The Akkawis were not charged with offences under s 112(3). The offences under s 86(2)(a) are clearly more seriously aggravated in this case than Akkawi. Mr Paul Akkawi received a further discount due to his psychiatric illness, a factor which is not relevant here. The application for leave to appeal against the severity of sentence in Tattersall was refused. There is nothing to indicate that a more severe sentence would not also have fallen within the reasonable limits of a sentencing discretion. The facts in Cornwall (a Crown appeal against sentence) are sufficiently different that they do not provide a useful comparison. In any event, the decisions referred to do not demonstrate a comparable range of sentences. Summary and resentence 1. The sentence imposed should not be interfered with on the ground that it was manifestly excessive. But for the reasons above the sentencing judge erred in not taking into account the fact that Franklin was not charged with the more serious iteration of the offence on the basis that he foresaw possibility of the intentional infliction by Evans of grievous bodily harm on Mr Delamont. He was charged with being reckless as to whether actual bodily harm might be inflicted. Appellate intervention is also required by reason of considerations of parity with the sentence imposed on Sinclair. 2. Whilst the sentence imposed by the sentencing judge was within a legitimate range, it is not the sentence that is the appropriate sentence to be imposed once one accepts, as one must, that Franklin did not foresee the possibility that Evans might intentionally wound or inflict grievous bodily harm on the occupants of the Medway property. For the reasons given, Franklin's culpability was not far below the upper end of the range for objective seriousness for the offence of which he was charged. In resentencing Franklin for the principal offence under s 112(3) of the Crimes Act it is necessary to take into account the Form 1 offences. There are mitigating factors that Franklin does not have a current record of previous convictions. The sentencing judge made no finding as to whether he was otherwise a person of good character, but noted that he had a long history of illicit drug use. He also noted that in January 2015 Franklin was able to wean himself from ice. His mother said that he was a "wonderful father" until he started taking ice and was trying hard to be a good father and husband. 3. There was no evidence that Franklin's conditions of custody will be more onerous by reason of his being in protective custody (R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 at [3]-[6]; Brown v R [2010] NSWCCA 73 at [38]). Moreover, Franklin's being in protective custody is the result of his assistance to authorities for which he receives a discount on his head sentence of 20 per cent in addition to a discount of 25 per cent for his guilty plea. 4. The sentencing judge considered that Franklin's prospects of rehabilitation were reasonable. Given his apparent success in addressing long-term drug addiction without professional assistance the material suggests that the prospects for rehabilitation are better than reasonable. Contrary to the view of the sentencing judge, the prospect of rehabilitation would be enhanced by a longer period on parole. Unlike the sentencing judge, a finding of special circumstances should be made to enhance his prospects of rehabilitation, but not to reflect allegedly more onerous conditions of custody. It is not useful in this case to frame the non-parole period as a percentage of the head sentence. It should reflect the minimum period which the applicant should serve in custody (R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at 717, [57]). That is a period of eight years. 5. In accordance with s 23(4) of the Crimes (Sentencing Procedure) Act the sentencing judge separately identified a 10 per cent discount for past assistance and 10 per cent for future assistance to law enforcement authorities. Franklin has now given evidence at Evans' trial, as it was contemplated he would do. It is possible he might be required to give evidence again if Evans successfully appealed his conviction. Against that possibility, the same discounts applied by the primary judge should be adopted. On resentence it should be indicated to Franklin and recorded that a lesser penalty is being imposed for his having assisted law enforcement authorities and for any future assistance that might be required. It should also be indicated that the term of imprisonment to be imposed has been reduced by 10 per cent for past assistance and 10 per cent for any future assistance. 6. A forensic psychologist, Mr Borkowski, provided a report dated 15 September 2016. He considered Franklin to have positive rehabilitation prospects. He diagnosed Franklin at the time of the offence as having a Crystal Methamphetamine Use Disorder, having developed a physical and psychological dependence on ice. Franklin gave evidence that he used methamphetamine at around lunchtime on the day before the offence. There was no evidence as to whether he was influenced by the drug at the time of offending. Even if he were, self-induced intoxication would not be a mitigating factor. 7. The sentencing judge's finding as to absence of remorse was justified on the evidence, although not for all of the reasons given by the sentencing judge. The finding was justified by the sentencing judge's rejection of Franklin's attempt to mitigate his own role in the home invasion. The same discount for the plea of guilty and assistance to law enforcement authorities should be applied as was allowed by the sentencing judge. 8. The prescribed maximum penalties for the offences under s 112(3) and s 86(2) referred to earlier in these reasons and to the standard non-parole period for the offence under s 112(3) referred to at [5] above have been considered. The standard non-parole period is a guidepost but the offence under s 112(3) is well above the middle range of seriousness (Crimes (Sentencing Procedure) Act, s 54A(2)). The indicative sentences imposed upon Evans and Sinclair with respect to their participation in the Medway home invasion have also been considered. 9. Taking into account the two matters on the Form 1, the indicative sentence for the first count on the indictment, being the offence under s 112(3) before allowance for the discount of 45 per cent, a period of 18 years and 6 months imprisonment should be imposed. After application of the discount the indicative head sentence would be rounded to 10 years. The indicative non-parole period is six years. In relation to the offence under s 86(2) an indicative sentence of 12 years before allowance for the discount of 45 per cent should be imposed. After application of the 45 per cent discount the sentence is 6.6 years to be rounded to 6 years and 7 months. Had separate sentences been imposed there would be a substantial accumulation. 10. An aggregate sentence should be imposed of 12 years and six months. A non-parole period of eight years and a balance term of four years and six months should be fixed. 11. The Court makes the following orders: 1. Grant the applicant leave to appeal from the sentence imposed by his Honour Judge Colefax SC on 24 March 2017. 2. Appeal allowed. 3. The sentence imposed on 24 March 2017 be set aside. 4. In lieu thereof 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 expiring 1 September 2029. 5. The term is to comprise a non-parole period of eight years commencing 2 March 2017 and expiring 1 March 2025 and a balance term of four years and six months expiring 1 September 2029. 6. The earliest date on which the applicant will be eligible for parole is 2 March 2025. ********** 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. Decision last updated: 02 November 2018