DPP v Franklin [2025] VCC 1169

DPP v Franklin [2025] VCC 1169 | Case summary | Zoe

You were 45 years of age at the time of the offending and you were residing at Buninyong, Victoria.
The complainant in this matter is Mark Blaby.
On the 3rd of October 2024 at approximately 06:10pm Mr Blaby was asleep in his bus. The bus was parked on the nature strip of an address at Britain Street, Mount Pleasant.
At approximately 06:10pm Mr Blaby woke to the sound of banging outside of the bus. You entered the bus through its front and only entry door. Mr Blaby believes the door was unlocked. He did not invite you in as he was asleep at the time.
Mr Blaby woke and noticed you standing in the bus holding a cricket bat in your hand. He recognized you,and knows you as 'Geoff'. You have mutual friends and he had seen you multiple times in passing.
You moved towards Mr Blaby and began striking him with the cricket bat. He attempted to cover himself to protect himself from the blows. You struck Mr Blaby with the cricket bat multiple times.
You began to leave the bus. As you were leaving, you threw various items at Mr Blaby, before leaving with the cricket bat.
As a result of the assault, Mr Blaby was bleeding heavily from his left hand. You walked around the exterior of the bus damaging the windows with the cricket bat while he was still inside. This was captured on Closed Circuit Television (CCTV) from the address.
You walked west along Biggs Street out of sight, after which Mr Blaby exited the bus. He attended at residence on Brittain Street, Mount Pleasant where he sought assistance from resident Peter Coleman. From there Triple 0 was called requesting an ambulance.
Ambulance Victoria members attended along with multiple Police units to provide Mr Blaby with medical assistance. He had lost a notable quantity of blood and appeared to be in shock. He was conveyed to the Ballarat Base Hospital accompanied by police.
Mr Blaby underwent surgery at the Sunshine Hospital to repair an approximately 5cm, deep laceration received to his left palm, and nerve repair. Mr Blaby is receiving ongoing treatment and rehabilitation.
On 28 October 2024 you attended with your father at the Ballarat Police Station in relation to an outstanding bench warrant. At this time you were arrested by police and cautioned. You were then remanded in custody.

[5]

The offences that you have pleaded guilty to are serious as indicated by their maximum penalties. In particular charge 1, is punishable by 25 years imprisonment. The charge of recklessly cause injury is punishable by 5 years imprisonment and intentionally destroy or damage property, 10 years imprisonment.
The prosecution submit that the objective gravity of the offending is high. Your Counsel accepts that aggravated burglary, particularly where there is an intention to assault, is a serious offence and that the offending would have been terrifying for your victim. She submits however that when assessed against the framework of considerations outlined in well-known authority of DPP v Meyers the offending is not at the 'higher end of seriousness'[1]. Overall, while I regard your offending as serious, in particular because you were purposefully armed with a weapon at the time and entered with an intention to assault, I accept this submission and that there are more objectively serious examples.
In your case, and as pleaded, your intention at the time of entry was to assault and you believed that Mr Blaby was inside. It is not alleged that any force or damage occurred in connection with your entry to the bus, that is, the inhabited vehicle. While uninvited you entered through the unlocked door. The damage to the bus windows, which forms the basis of charge 3 occurred after the entry and confrontation. You entered alone, not in company, and you were armed with a weapon, namely a cricket bat. The aggravated burglary occurred during daylight hours, at approximately 6:10PM. I accept your Counsel's submission that while clearly there was obviously some premeditation to the offending, there was no sophistication or attempts to disguising yourself. Also, I note the offending did not occur within the context of family or ongoing violence or threats.
In relation to the recklessly cause injury charge, I take into account that the injury was caused by the use of a cricket bat and multiple strikes, while Mr Blaby was attempting to cover himself. I take into account the nature of the injury.
The criminal damage occurred after you left the bus. You damaged windows with the bat, while Mr Blaby was still in the bus, and I consider that this would have also heightened the terror of the overall situation.
I accept that the incident was of a relatively short duration and that, while clearly separate offending, with the aggravated burglary complete upon entry, all charges occur during the same incident and the principle of totality is important.
In relation to the offending, your Counsel submits that you attended to confront Mr Blaby about his reported dealings with multiple young teenagers. You have apparently received complaints that he was supplying children with drugs and possibly mistreating them. You attended with a view to confront him and took a weapon with you, anticipating that an altercation would ensue. This does not moderate your moral culpability. The higher courts have repeatedly emphasised that members of the community must resolve any grievances they have by lawful means rather than taking the law into their own hands by harming perceived wrongdoers. If anything, it heightens the need for general deterrence.
Your Counsel relies on the opinions of clinical neuropsychologist Dr Laura Anderson and submits that your moral culpability should be moderated by reasons of your borderline personality traits, trauma symptoms and neurodevelopmental factors which contributed to your impulsivity and the emotionally driven nature of the offending. I accept that you suffer from symptoms consistent with these conditions. However, you also told Dr Anderson that you were 'acutely intoxicated from alcohol use at the time of the alleged offending', describing yourself as 'at least a few days into a ten-day bender'. You were also likely to have been using ice, to some extent, at around that time (at [40]). While this does not exclude Verdins considerations, there is a difficulty in disentangling the impact of your mental health symptoms, and the symptoms of your likely ADHD, from your acute intoxication at the time[2]. Further, the opinion of Dr Anderson that your response to the situation may, in part, have also been 'particularly psychologically triggered' by your own childhood trauma, while consistent with your presentation is, on her own account, a 'speculative hypothesis (at [76])' To the extent that a link is made out between your vulnerabilities and symptoms and the offending, as canvassed in Dr Anderson's report, it is my view that the moderation to be afforded by these considerations is modest. I will return to the report again shortly.

[7]

Your personal circumstances were outlined by your Counsel and are canvassed in the report of Dr Anderson of 23 July 2025
In brief, you were born in Ballarat and raised in Buninyong (Greater Ballarat).
Your background is described as a 'stable, positive and supportive' one. Your parents cared and provided for you and your 2 siblings. Your father is now retired though held steady employment in the community and your mother attended to home duties. Your brother is a master builder and your sister is a registered nurse. None of your family have any criminal history and I note that your family attended Court in support of you.
In early childhood you were diagnosed with ADHD and you were medicated from the age of 14 with dexamphetamines for a period of some years. At school, you were bullied by other students and learned violence to defend yourself and retaliate against bullies.
You completed year 10 at Ballarat Secondary College and made four unsuccessful attempts to complete year 11, including through TAFE. It is suggested on your behalf that these failed attempts may have been attributable to your cessation of ADHD medication and your ongoing attentional difficulties.
Since leaving high school, you have held various stable jobs including scaffolding, shed construction and your own roof restoration/pressure washing business.
You ceased employment when you became a full-time carer of your children in July 2020.
You have three children, aged 12, 15 and 22 years, from two previous relationship. You are their primary caregiver and your principal focus in the community has been to raise and support them. Neither of the mothers are currently involved in their care. At the time of your offending and prior to your remand, you were living with your parents and the children. Since your arrest, all children have continued to live with your parents, though this is reportedly more difficult and challenging given your parents advancing age, their health issues and limited mobility.
You have a history of alcohol and methylamphetamine use, as documented in the material. You have also had long periods of abstinence which have resulted in gaps in offending on your criminal history. In the months leading up to the offending you had been drinking alcohol daily. You were sporadically engaging with a drug and alcohol counsellor and withdrawal nurse. In recognition that you needed some help, you had agreed to be admitted to a detoxification program at the Geelong Withdrawal unit, scheduled for 29 October 2024. Of course, you were remanded the day before and the detoxification program did not proceed.
As noted, you have a prior criminal history that is relevant and includes charges for dishonesty and violence. You have received a range of dispositions including corrections orders that have subsequently been breached and terms of imprisonment, with the longest period being 13 months in 1998. At the time of this offending you were on a CCO imposed on 19 April 2024 for charges of affray, recklessly cause injury and theft. This is also an aggravating feature of your offending. I do note that you had some engagement with drug and alcohol treatment on the order but clearly your use of alcohol and/or substances had escalated in the lead up to the offending. Your history is a lengthy one though there are periods where you appear to have not offended, including between 2014 and 2019 and 2020 to 2023. According to your Counsel these periods coincided with long periods of stable employment and abstinence from drugs and alcohol.

[8]

Turning to your cognitive functioning and your mental health. Dr Anderson conducted an assessment of you and considered that overall your pattern of engagement was a reliable and valid indication of your current clinical presentation and functional abilities (at [46]). She notes you reported an earlier diagnosis of ADHD and that you were medicated from the age of 14 for approximately 2 years. You also disclosed as an adult being involved in a number of accidents and assaults through which you sustained various injuries. In February 2024 you sustained a significant knock to the head resulting in facial fractures and internal bleeding on the brain. Approximately nine weeks following injury you reportedly continued to experience difficulties with your speech and short-term memory, prompting your GP to refer you to an acquired brain injury rehabilitation clinic for specialist consultation and treatment advice (at [24]). You also reported experiencing symptoms of anxiety and depression in the past but have never been formally diagnosed or treatment for any mental health condition.
Dr Anderson undertook a range of tests. Your current level of general intellectual functioning was assessed to fall within the average range for your age (at [50]), though you demonstrated a significant weakness in your verbal memory functioning (at [62]). On a standardised self-report measure of symptoms of psychological distress associated with past traumatic experiences, your pattern of responding was consistent with symptomology demonstrated by individuals who meet the diagnostic criteria for complex post-traumatic stress disorder (at [55]). She made this diagnosis on a 'provisional' basis, noting that further specific clinical investigation is warranted (at [64]; see also [89).
On a standardised brief 'screening' measure for symptoms associated with Borderline Personality Disorder, your pattern of responding was consistent with the level of symptomology associated with a diagnosis of Borderline Personality Disorder (at [56]).
Dr Anderson considers it highly unlikely that your current cognitive profile is representative of damage acquired as a result of the February 2024 traumatic brain injury. Rather, her clinical opinion is that your:

[10]

She also considers your overall presentation is consistent with your self-reported previous diagnosis of ADHD. She considers it 'highly likely' that you continue to meet the diagnostic criteria for ADHD but that 'referral to an adequately trained psychiatrist will be required to confirm this diagnosis' (at [72]; [88]). She proffers that, from a clinical perspective, it 'is reasonable to propose' that your ADHD increases your propensity to engage in impulsive behaviour and impedes your capacity to engage in consequential thinking (at [74]).
I have already addressed the relevance of these conditions on your offending. Turning to your Counsel's further submissions, on my assessment, while they are relevant matters that I have taken into account, a consideration of the offending and the material, as it currently stands, does not suggest that your mental health, or cognitive functioning, is such that either general or specific deterrence should be downplayed or moderated to any significant degree.
As for the likely impact of imprisonment, Dr Anderson opines that your current cognitive profile is unlikely to significantly negatively impact your capacity to cope. However, your mental health presentation, that is your underlying significant trauma symptomology and personality dysfunction, is likely to be significantly 'triggered' in a custodial environment and that you are likely to 'feel increasingly hyper-vigilant and hyper-aroused in a custodial environment' (at [82]). She also considers that you are therefore also at an increased risk of experiencing interpersonal conflict with both staff and others in custody. She opines further that it is highly possible that you 'may experience an exacerbation of [your] apparent underlying trauma symptomology whilst incarcerated' (at [85]).
In respect of your experience of custody, I accept that limb 5 of Verdins has application and I will give this some weight but, as raised with your Counsel, I don't consider that the evidence supports a serious risk of imprisonment having a significant adverse effect on your mental health.

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