DPP v Franklin

1. This is a rolled-up charge based on four occasions of penile/vaginal penetration occurring between 6 June and sometime around 3 July 2024. In her VARE, the victim told police that she was dating you and that you and her were sleeping together. She disclosed penile/vaginal penetration. She said you did not wear a condom on any of the four occasions that you had sexual intercourse.
2. You had sexual intercourse on 6 June 2024 at the hotel in Bairnsdale where you were staying. She said in her VARE that the two of you had sex on the first night that you stayed there.
3. Once you had moved to Lakes Entrance, the victim caught a bus to see you every day. She describes having sex at your cabin in Lakes Entrance, and in a caravan at Lakes Entrance.
4. She also says you had sex in the Sale Botanical Gardens, on a playground near a swing, on or about 3 July 2024. She said no-one else was around because it was cold.
5. On no occasion did you use a condom.

1. This charge relates to a series of text messages in which videos and images of the victim naked and masturbating was sent by her to you.
2. The prosecution opening describes the sexualised conversations you had with her between 4 July and 6 July, which included you requesting, and her sending, pictures and videos of her naked.

1. This offence relates to 28 unique files which were located on your mobile phone which the police seized when you were arrested. Of these 28 files, 27 are images and one is a video. The three files transmitted to you, which are the subject of Charge 2, are included in the 28 files covered by this charge.
2. The prosecution opening includes a description of the child abuse material images possessed by you, all of which are of the victim and include shots of her in lingerie, in underwear, and naked. There are videos showing her masturbating.
3. These files fall into Category 2 child abuse material.
4. Your phone was seized on 7 July 2024, the day you were arrested.
5. On that same day, you were found with a small amount of marijuana, and a bong (This is the basis of Charge 4 - possess drug of dependence).
6. Related Summary Offence 1 relates to 13 June 2024, the day you were admitted into hospital. On that day, the two of you were observed hugging outside the Bairnsdale Hospital. You were then observed walking into the Emergency Room. The Harbouring Notice, which had been served on you, prohibited you from contacting the victim.
7. Related Summary Offence 3 relates to 7 July 2024. On that day the victim caught a bus to Sale to meet you. She was seen walking towards a park bench in Sale. You were waiting for her sitting on the bench. You were placed under arrest and were given your caution and rights.
8. You had been observed hugging the victim, which again, was a breach of the Harbouring Notice.
9. You were interviewed at the Sale Police Station on 7 July 2024. The informant asked you for the PIN code to your phone, which you gave them.
10. You said that that you were just friends, the victim was like your best friend. You said she had been to the motel and the cabin, but had not stayed over. You said that you had read the Harbouring Notice, and you knew you had to stay away from her. You admitted the victim had told you her age.
11. You admitted knowledge of the photographs on your phone.
12. You said that you would not touch a woman that is not of age. You denied being in a relationship with her. You admitted buying marijuana and letting her smoke it.
13. In the victim's VARE, she said she was in a relationship with you. She said the two of you started dating one month after she started staying at your house. She said that at the beginning you cared about her age and you stopped her when she tried to kiss you. But as time went by, you cared less about her age. Your concern about her age was that you would get "locked up". She said, "he was just trying to help her out as a mate, he didn't want anything to do with me. That's not why he asked me to come over". That is a reference to the circumstances when she first came to live with you.
14. She told police she had sent sexual photos to you. She said you wanted to get her pregnant to start a family.
15. She said she had strong feelings for you.
16. She said that she told police she had had sex with you as described in the relevant passages in the prosecution opening and that no protection had been used.
17. You were 31 years old at the time of the offending.
18. You pleaded guilty at a Committal Mention Hearing on 7 January 2025. This was the earliest reasonable opportunity at which you could have pleaded guilty. Your plea indicates a willingness to facilitate the course of justice and is consistent with some remorse for this offending, although it is difficult to gauge the exact nature of your remorse for this offending.
19. By pleading guilty, you have spared the police, the prosecution, and the court the use of the resources required for a contested trial. You have spared the victim the experience of having to give evidence about these matters in a contested hearing, which would have been a difficult situation given her attitude in this case.
20. The case against you was obviously very strong given the material found on your phone, and the content of the victim's VARE, but nonetheless, your plea of guilty is a significant matter and entitles you to a significant sentencing discount.

1. Dealing firstly with Charge 1, sexual penetration of a child, this offence has a substantial maximum penalty of 15 years' imprisonment which reflects its inherent seriousness. It is also a standard sentence offence. The standard sentence is six years' imprisonment. There is a prohibition of sexual activity with children, which is based on the presumption that such activity will cause ongoing psychological and physical harm to the victim.
2. In this case, there is no victim impact statement before me, but I cannot exclude that over time the victim will come to regret and be damaged psychologically by this relationship.
3. The offence is a rolled-up charge involving four separate acts of penetration. One maximum penalty applies, but I must consider the total criminality of the offending in assessing its seriousness.
4. The offending occurred over a period of about one month. You persisted with the relationship and offending despite preventative measures which included the victim's removal from your residence in Sale, the imposition of a Harbouring Notice, and bail conditions as well.
5. You did not wear a condom and, therefore, you exposed the victim to potential disease and pregnancy. The age difference was significant. Further, as the prosecution submitted, the offending involved a breach of trust in that the victim was living with you because of problems her mother had with her partner, and her mother had asked if she could stay with you. In concluding, the offending involved a breach of trust. I have had regard to the decision of Watkins referred to by

Mr Brown, your counsel, on the plea. I do accept there was a breach of trust in circumstances where the victim's mother asked you as an adult to allow the victim to live with you. However, in the unusual circumstances of this case, the breach of trust is not a factor that should dominate the assessment of the objective gravity of this offending. 6. In respect of your moral culpability the prosecution relied on the following factors: * you knew the victim's age from the outset before developing a relationship with her, and you offended even though you had concerns about her age; * you gave her marijuana during the offending period; * she was vulnerable and you knew this because she needed to stay with you due difficulties at home; * you offended after you had been served with the Harbouring Notice and after you were placed on bail conditions; * you offended after the victim tried to end the relationship with you, and you understood that your conduct was serious criminal conduct likely to result in a jail sentence; and * you lied to the police about the nature of your relationship with the victim because you understood its illegality.

I accept these factors are relevant in assessing your moral culpability.

1. The prosecution submitted the child abuse material charges can be viewed as part of a, "series of sexual offences against a child you knew to be vulnerable". In respect of Charge 2, you directed the victim as to what you wanted her to send to you, including a video of her masturbating. It was accepted that the child abuse material was for your personal use. This is not mitigating, rather it is the absence of a significant aggravating factor. The prosecution submitted that in respect of the Summary Offences, your attempts to breach the Harbouring Notice were successful and you had physical contact with her in respect of both summary offences.
2. Mr Brown acknowledged that the offences in this case are inherently serious, as reflected by the maximum penalties.
3. He submitted that a charge of sexual penetration of a child under the age of 16 covers a very broad range of offending and relied on the Court of Appeal decision in Roberts v R [3] at 17. In Roberts, the Court identified as a serious example of the offence a 50 to 60 year old predator engaging with a 12 to 13 year old, having groomed and coerced the victim, whereas an example at the bottom end of the spectrum would be teenagers straddling the age limit and sexually experimenting
4. Mr Brown accepted that your offending was not at the lowest end of the spectrum as described by Roberts, and in Clarkson v The Queen[4]. He did, however, submit this case falls into the lower end of seriousness. Mr Brown accepted that consent is not itself a mitigating factor, but argued that the absence of consent, or the presence of coercion, would have significantly increased the seriousness of the offending and your culpability.
5. Mr Brown submitted that the child abuse material offences fall into the lower end of the spectrum. I accept this. This was not a case where you had stockpiled large amounts of repulsive material on your computer, or you were fuelling the market for child abuse material through internet activities, as is often seen in these cases, and which is a factor which requires general deterrence to be given paramount weight. I accept the prosecution's submission that your offending was really an extension of your sexual relationship with the victim.
6. I accept no coercion was involved in the sexual activity between you and the victim. Furthermore, in the victim's VARE, she clearly says that for approximately one month, you refused to engage in a "relationship" with her. This was an unusual set of circumstances with the victim living with you for an extended period. It is not suggested that you engineered this situation or in any way connived at having the victim come and live with you, intending to cultivate a relationship with her. This was a sexual relationship that seems to have involved affection on both sides.
7. The victim was at the top end of the age range covered by the offence of sexual penetration of a child under the age of 16. She was 15 years and 10 months old when the offending commenced. This is not a mitigating factor, but this type of offending is progressively more serious the younger the age of the victim.
8. Mr Brown submitted that age gap between you and the victim was not as big as one often sees in cases like this. That is true, but the age gap here of 16 years is an important factor. You were well past your teenage years. You had fathered two children and been in relationships. No doubt a power imbalance between you and the victim did exist, and this is relevant to the overall assessment of the offending. You knew you were dealing with a vulnerable teenager, and you well understood the wrongfulness of your conduct. You needed to make the decisions that a right-thinking adult would have made, but instead you embarked on a sexual relationship with a child under the age of 16.
9. However, your conduct was not predatory, and you did not engage in grooming the victim on the evidence before me. This does not seem to me to be a case where the power imbalance was an integral feature of what happened.

In my opinion, this offending falls into the lower end of the spectrum for offending of this type, but it is significantly more serious than teenagers straddling the age range as the Court of Appeal put it in Roberts.

1. Mr Brown submitted that you had a disadvantaged and dysfunctional childhood. I was told that your mother was strict and regularly used physical violence towards you, including hitting you with various household implements. Your mother and father were separated when you were very young. You were removed from your mother's custody at about the age of 13. You then lived in residential care facilities and with your grandmother at times.
2. You tried living with your father when you were about 15 years old. You were exposed to your father's drug use and violence.
3. You finished Year 8 at school. You were then in care. You have had various jobs including in construction, pizza delivery and mechanics.
4. You have had several relationships. You had a daughter who died when she was four days old. You commenced a relationship with her mother when you were

17 years old. You have an eight-year-old son to a separate relationship that lasted for about eight years and ended in 2022. You have had no contact with your son for more than two years now. 5. You have been drinking alcohol since the age of 13 and using cannabis since the age of 15. You were addicted to Oxycontin for about two years in your mid-teens. You have also abused methamphetamine. 6. You have significant prior convictions, but not for sexual offending. You have, however, been a constant offender since 2011, when you received a sentence of youth training centre for negligently causing serious injury. You have committed assault offences and offences involving threats, dishonesty offences, driving offences, family violence offences, and you have contravened Community Correction Orders. You have been given chances by the courts and received dispositions designed to assist your rehabilitation, but you have continued to offend. You have never been sentenced to adult prison. Your only previous experience of adult custody was when you were remanded in custody in 2019 for a couple of nights. 7. You are not to be sentenced again for your prior convictions, but they are relevant to the importance of specific deterrence and the evaluation of your prospects of rehabilitation. 8. You suffer from ischemic heart disease and you have had three heart attacks. You take a range of medications to manage your medical condition. You also suffered a serious back injury in a car accident in 2016. You suffer from chronic pain. 9. Mr Brown submitted that your background was a disadvantaged and unstable one and that the principles in the case of Bugmy v The Queen[5] apply in a general way. He submitted your moral culpability should be viewed as less than the culpability of an offender whose formative years were not marred in the way that yours were. The prosecution accepted the application of the Bugmy principles to your situation. I accept that I should reduce the assessment of your moral culpability having regard to your upbringing. 10. A psychological report from Dr Rachel Watson was tendered. 11. You were diagnosed with ADHD when you were a child. You told her that you have previously been diagnosed with a borderline personality disorder.

Dr Watson found that your presentation was consistent with these conditions. 12. Dr Watson also diagnosed you with autism spectrum disorder, post-traumatic stress disorder and major depressive disorder. You are currently prescribed Seroquel, Abilify and Sertraline medications designed to assist you to regulate your emotions. 13. Dr. Watson says in her report you have an increased chance of experiencing a decline in your mental state due to your trauma background, personality structure, and autism. She says increased stressors can cause anxiety, hypervigilance, heightened emotions and self-harm. She says you will need to access mental health services to help you manage self-harm risks. She also refers to suicide risks. 14. In custody at Ravenhall prison, you have undertaken a program which provides specialist mental healthcare treatment and programs designed to assist with repetitive entrenched challenging behaviours associated with your mental health conditions. 15. Dr. Watson assessed you to have a lower level of psychopathy than the average offender and also found it is highly unlikely you have a persistent or pervasive sexual interest in children. 16. Mr Brown submitted that your moral culpability is somewhat reduced by your mental state conditions and therefore Verdins principles 1, 3 and 4 apply. He submitted that your moral culpability is reduced because your conditions have the effect of disinhibiting your behaviour and impairing your ability to exercise appropriate judgement to make calm and rational choices, and to think clearly.

Dr Watson said that your ADHD causes increased impulsivity and that you will often act without thinking through the consequences of your actions and you will engage in risk taking behaviour that causes you harm. Mr Brown further submitted that principle 5 of Verdins applies, in that there is an evidentiary basis to conclude your time in prison will weigh more heavily on you than it would on a person without your mental state conditions. 17. In respect of your moral culpability and general and specific deterrence, Mr Brown conceded that although your offending was not a one off impulsive decision, based on Dr Watson's report there is a basis to conclude your desire for attachment overrode your insight into the wrongfulness of your conduct. He submitted that there is, therefore, a realistic causal connection between your impairment and the offending. 18. The prosecution submitted that whilst principles 1, 3 and 4 of Verdins have some application, your offending was not impulsive, and you understood the wrongfulness of your conduct and the likely consequences, and these matters temper the weight that should be given to the Verdins considerations in respect of moral culpability, specific and general deterrence. The prosecution also submitted that because of your mental state conditions and their entrenched nature, community protection becomes more important. 19. I accept that there should be a reduction of your moral culpability and a moderation of general and even specific deterrence to some extent in the circumstances, but for the reasons argued by the prosecution, it is a relatively modest reduction in respect of the moral culpability and the impact of general and specific deterrence. I also accept your mental state will increase to a degree the burden of imprisonment for you. 20. An additional factor increasing the weight of a prison sentence on you is that because your mother worked as a prison officer, you have been placed on protection during the period you have been on remand in the Hopkins Unit at Ravenhall, which is the protection unit. It seems likely you will serve your whole sentence in protection. I accept this further increases the burden of your imprisonment given the restrictions on protection prisoners. 21. Further, I have kept in mind that this is your first period of imprisonment in an adult facility.

1. You have no prior convictions for sexual offending and Dr Watson offers a positive prognosis about your risks of further offences of that nature. In my opinion, you have positive prospects of rehabilitation in that regard. Your prospects of rehabilitation in relation to offending generally are less clear, but I accept you have overall you have reasonable prospects of rehabilitation, and you will be assisted by ongoing supervision once you are released.

1. As I have already observed, the standard sentence for sexual penetration of a child under 16 is six years. The standard sentence applies to an offence in the middle range of seriousness, based only on its objective factors. A standard sentence is just one of the many matters to which I must have regard in deciding the sentence for sexual penetration in this case. It is a legislative guidepost. It is not a mandatory sentence, nor is it the starting point from which to add or subtract time. In fixing a sentence in this matter, I have had regard to the standard sentence amongst all the other matters which I must have regard to in deciding the appropriate sentence. As will be seen, the sentence I will impose for sexual penetration is lower than the standard sentence.
2. In assessing current sentencing practices, I have only had regard to sentences imposed for standard sentence offences. The prosecution in their written submissions referred to several similar cases to which I have had regard. Current sentencing practices are a guide or a yardstick, but a controlling factor in deciding the appropriate sentences.
3. The totality principle requires that the total effective sentence must be just and proportionate to the overall criminality of your offending. In this case, all offences arose directly out of the relationship between you and the victim, and in this a factor in favour of significant concurrency between the sentences. That said, there is a presumption of cumulation in respect of Commonwealth child sex offences, but the principle of totality still applies.
4. The sentences that I will impose in this case are as follows.
5. For Charge 1, sexual penetration of a child under the age of 16, you are convicted and sentenced to be imprisoned for a period of 27 months. For the two State summary offences, you are convicted and sentenced to one month for each of those offences. One month of the second State summary offence is cumulative on the base of 27 months in this matter, which makes a total effective State sentence of 28 months.
6. The non-parole period is the minimum period justice requires you to serve before being eligible for release. It must be consistent with the objective gravity of the offending. It mitigates punishment in favour of rehabilitation. For standard sentence offences where the sentence is less than 20 years, I am required to fix a non-parole period of not less than 60 percent unless the interests of justice require otherwise.
7. In this case, as I explained earlier, in talking to counsel this morning, I have decided to fix a minimum non-parole period of less than 60 percent, because of the interaction of the State and Commonwealth sentences in this matter. I am fixing a non-parole period in this matter of 14 months.
8. In relation to pre-sentence detention, my reckoning is that it is 290 days.
9. In relation to the Commonwealth offences, in respect of both offences I impose a sentence of nine months. One month of the sentence on Charge 3 is cumulative on the sentence for Charge 2, making a total effective Commonwealth sentence of 10 months. In deciding the appropriate period of cumulation I have had to take into account the overlap between the two offences, and the totality period between not just the Commonwealth offences, but the State offences as well.
10. I will impose a Recognisance Release Order in this matter after three months. The start date for the sentences is the expiration of the non-State non-parole period. The recognisance release period, I will make it 18 months in this matter, so you will be placed on a recognisance to be of good behaviour for a period of 18 months that allows release after three months, after the end of the non-State non-parole period. The recognisance release will be in the sum of $2,000.
11. The mandatory conditions are that you are subject to supervision by a probation officer, which is effectively Corrections, and sex offender management for the period of 18 months. You must obey all reasonable directions of Corrections. You cannot travel interstate or overseas without written permission, and you must undertake such treatment or rehabilitation programs as directed. You must report to the Sale Community Corrections Centre within two working days of your release.
12. You have to report and receive visits from Corrections, and notify an officer of Corrections of any change of address or employment, and you have to attend for assessment, and if assessed as suitable, treatment for sex offender programs to reduce reoffending. That is within 18 months. So those are the orders that I will make. Does that cover off on the Recognisance Release Order?
13. MS ADDAMS: I think so, Your Honour, just a couple of issues. One, Your Honour said the order will be for 18 months. Is that for both the good behaviour and the mandatory other conditions?
14. HIS HONOUR: Yes, and I have allowed that to allow time for him to do - - -
15. MS ADDAMS: Yes, because my instructions are that although 12 months might be enough to accommodate the program itself, there are availability issues or it might be that it cannot be started straight away.
16. HIS HONOUR: Yes, it struck me that was possible, that is why I have made it

18 months for both. 17. MS ADDAMS: The other issue we discussed earlier was about if this order needs to be amended, whether Your Honour or another judge of this court can do that under s20AA of the Crimes Act, and then finally, Your Honour indicated there would be a month cumulation between the two Commonwealth sentences, but that they - the Commonwealth offences - - - 18. HIS HONOUR: Sorry, I had meant to do that. The second sentence has to start a month after. Can I do that, that does not create a gap? 19. MS ADDAMS: As long as one of the sentences starts when the non-parole

period - - - 20. HIS HONOUR: Sorry, I lapsed back into State - - - 21. MS ADDAMS: Does Your Honour require my instructor to fill out the recognisance release order with what Your Honour's announced? 22. HIS HONOUR: If she would that would be very useful, if she can do that, thank you. Charge 3 will start one month after the State non-parole period expires, or one month after Charge 2 commences. 23. MS ADDAMS: I think either works. 24. HIS HONOUR: Sex offenders registration is life, correct? 25. MS ADDAMS: It is, Your Honour. 26. HIS HONOUR: So 6AAA, that is the sentence that you would have received had you not pleaded guilty, on the State offences, three years and four months with a minimum non-parole period of two, followed by the Commonwealth effective sentence of 14 months with a release after five months. 27. That means in reality you cannot be released until you have served 17 months in this matter, Mr Franklin, so that is 14 on the State non-parole, and then three on the Commonwealth sentence. I mean to put it crudely it is an effective minimum of 17, but that is all subject to you being released by the State on the non-parole period. That is the orders that I have decided to make. Mr Brown, any queries with any of that? 28. MR BROWN: No, Your Honour. 29. HIS HONOUR: Is the PSD right, 290? 30. MR BROWN: Yes. 31. HIS HONOUR: Thanks, both of you, for your assistance in this matter. 32. ##A:S# (Short adjournment.) 33. HIS HONOUR: I have to sign the recognisance. 34. MS ADDAMS: Yes, we think that can probably happen administratively, however I neglected, Your Honour - or it has just been brought to my attention that

Your Honour will need to explain particularly the consequences of breaching the order under sub-s20(2). 35. HIS HONOUR: Yes, you are right. 36. ##A:S# (Short adjournment.) 37. HIS HONOUR: Ms Addams, apparently we can get him back. Mr Franklin, you are back and the reason is that I am required under the Commonwealth legislation to explain the recognisance release order to you, and the consequences of breach. The purpose of the order is to allow you early release in this matter, and to allow or to mandate some effective treatment with respect to sexual offences. You understand that is what the order provides, that you are released after three months rather than 10 months, to allow you to undergo these programs, which in my view are necessary, having regard to the nature of the offences in this case. 38. What is more, to make it clear to you that any further offending would be a breach, and there are consequences attached to the order. Do you understand all that? That is the purpose of the order, to allow you not to have to serve the whole of the sentence, but also to achieve supervision. If you breach the order - you have got to be of good behaviour, you have to comply with the conditions that I read to you earlier. You have to comply with those conditions or you will have breached the order, in which case you will be brought back before me for breaching the order, and the likely outcome would be that you would have to serve the entire sentence that I have imposed. Do you follow all that, Mr Franklin? 39. OFFENDER: Yes, Your Honour. 40. HIS HONOUR: The Act also requires me to tell you that the recognisance can be discharged or varied at some point as well. So I have now explained to you the purpose of the recognisance. You will have to sign that. I will sign it and it will be sent out to the prison for you to sign as well. If you sign it that allows release after three months. You follow the total effective minimum period you will have to serve is 17 minus your 290 days, which I deducted on the State sentences. Do you understand all that? 41. OFFENDER: So I have got time served for the time I have already served? What you are saying is that you have deducted the time that I have already served. 42. HIS HONOUR: Correct, so your State non-parole period is 14 months, minus

290 days. However, there is a Commonwealth sentence as well, and that is effectively 10 months, but released after three months, and it starts at the same time that your non-parole period expires. Therefore your effective minimum term is 17 months, minus 290 days. 43. OFFENDER: So technically seven months until I can be released? 44. HIS HONOUR: It might be slightly more than that, but somewhere around there, so 290 is close enough to 10, yes, so I suppose looking at it that way about seven before you are eligible for release. That is basically how it works, but it is complicated by the fact that there are State and Commonwealth offences. I have given you 14 months on the State non-parole, but then you have to serve another three on the Commonwealth before you are released under your recognisance. Do you understand? You have to sign that recognisance. 45. OFFENDER: Okay. 46. HIS HONOUR: I think that covers it. Thank you, Mr Franklin, we can turn off the link. Thanks, Ms Addams, you are satisfied with that? 47. MS ADDAMS: Yes. 48. HIS HONOUR: Thank you.

[3] [2023] VSCA 92

[4] [2011] VSCA 157; [2011] 32 VR 361