Franklin v R [2019] NSWCCA 325

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Franklin v R [2019] NSWCCA 325 Hearing dates: 11 October 2019 Date of orders: 30 December 2019 Decision date: 30 December 2019 Before: Gleeson JA at [1] Johnson J at [2] Cavanagh J at [148] Decision: 1. Grant the Applicant leave to appeal against sentence. 2. Appeal against sentence dismissed. Catchwords: APPEAL – SENTENCE – offender pleaded guilty to a number of sex offences committed over 10 year period against his sister between 1967 and 1977 – unlawful and carnal knowledge of a girl between 10 and 16 contrary to s.71 Crimes Act – incest offence contrary to s.78A Crimes Act – two offences of rape contrary to s.63 Crimes Act – two further offences of indecent assault taken into account on a Form 1 – offences representative of sexual offending against sister over a period of 13 years – whether sentencing Judge erred in assessment of objective seriousness of the rape offences – no error demonstrated in approach taken by sentencing Judge to assessment of objective seriousness – findings of objective seriousness open to the sentencing Judge – whether aggregate sentence imposed was manifestly excessive – where challenges directed to indicative sentences – whether degree of notional accumulation reflected sentencing practices at the time of the offences – where indicative sentences nominated were substantial but not suggestive of error – where sentencing Judge had regard to sentencing principles and practice at time of offending conduct – no error demonstrated in approach taken by sentencing Judge to historical sex offences – aggregate sentence not unreasonable or plainly unjust – appeal dismissed Legislation Cited: Child Welfare Act 1939 Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 Surveillance Devices Act 2007 Cases Cited: AK v R [2016] NSWCCA 238 Attorney General for the State of New South Wales v DSF Constructions Pty Limited [2019] NSWCCA 33 Director of Public Prosecutions (Victoria) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kerr v R [2016] NSWCCA 218 Magnuson v R [2013] NSWCCA 50 Morton v R [2018] NSWCCA 84 Mulato v R [2006] NSWCCA 282 O'Sullivan v R [2019] NSWCCA 261 Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221 R v AA [2017] NSWCCA 84 R v Cattell [2019] NSWCCA 297 R v Evans (Court of Criminal Appeal, 24 March 1988) R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 R v Kaye (1986) 22 A Crim R 366 R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 TC v R [2016] NSWCCA 3 v R [2018] NSWCCA 247 Vandeventer v R [2013] NSWCCA 33 WAP v R [2017] NSWCCA 212 Woodward v R [2017] NSWCCA 44 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Texts Cited: --- Category: Principal judgment Parties: Brian Franklin (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: Mr L Brasch (Applicant) Mr E Balodis (Respondent)