R v Franklin [2008] VSCA 249

R v Franklin [2008] VSCA 249 - VSCA 2008 case summary — Zoe

[36]

10 Between 16 October 1988 and 15 October 1989 the appellant was invited to the home of AO'D and his family for dinner. AO'D was then aged approximately ten or 11 years. The appellant knew his family through the Scouts' Association. AO'D was then in the cubs. After dinner and when all others had gone to bed the appellant and AO'D continued to talk. The appellant introduced the subject of girls and having sex with girls. He then masturbated himself and AO'D masturbated himself. This conduct constituted count 3, an act of gross indecency on AO'D who was under 16 at the time and under the care, supervision and authority of the appellant who was then aged either 17 or 18 years. About one year later AO'D who was then aged approximately 11 or 12 years stayed at the appellant's house overnight. At the time the mother of AO'D was gravely ill with cancer. The appellant and AO'D were in the spa when the appellant raised the topic of sex. The appellant asked AO'D if he could masturbate him and AO'D agreed. The appellant then asked the victim to masturbate him which AO'D did. About six months later AO'D slept at the home of the appellant once more. The appellant and AO'D shared a bed and massaged each other. The appellant removed his clothes and AO'D and the appellant masturbated each other until ejaculation. AO'D was under 16 and under the care, supervision and authority of the appellant who was aged 18 or 19 at the time. This conduct took place between 1 January 1990 and 4 August 1991 and constituted count 4, a representative count. Between 8 December 1991 and 31 January 1992 and about two or three weeks after AO'D's mother had died of cancer the appellant stayed overnight at AO'D's family home. When everyone else was in bed the appellant and AO'D who were then in the lounge room talked about sex. The appellant masturbated AO'D until he ejaculated and then he masturbated the appellant until he ejaculated. AO'D then performed oral sex on the appellant, which events constituted count 5 a count of sexual penetration. The appellant then performed oral sex on AO'D thus forming the factual circumstances of count 6 a count of sexual penetration. AO'D was aged 13 and under the care, supervision and authority of the appellant at the time of these offences. The appellant was then aged either 19 or 20 years.

[68]

35 In order to consider the complaint that the orders for cumulation in respect of the offences committed against MVR, which orders had the effect that a total term of imprisonment of five years and two months was imposed, are excessive and in breach of the principle of totality, it is necessary to examine the circumstances in some detail. Counts 20 to 27 related to the offences committed against MVR. The first offence of an indecent act with a 16 year old child under care, supervision or authority took place between 30 September and 31 December 1999. The appellant was then aged 28 years. The victim MVR first met the appellant through the scouting movement when he was 12 years of age. The appellant befriended the victim's family and offered MVR casual work in his garage. The first offending behaviour consisted of indecent acts (20 and 21) whilst MVR was working as an employee of the appellant. The victim was told by the appellant that he must not tell anyone of their activities otherwise the appellant would be 'in big trouble'. In November 1999 the appellant took MVR to a motel in Traralgon where the mutual masturbation the subject of count 21 took place after the watching of a pornographic video. Thereafter, early in 2000 MVR stayed with the defendant at Rye Beach. They shared a tent and mutual masturbation took place. The appellant then asked MVR to perform oral sex on him which he did, until the point of ejaculation. The appellant also performed oral sex on the victim. The victim found the activity disgusting but thought it was a normal thing to do. He thought that the appellant loved him. Furthermore, in Easter of 2000 MVR was visiting the appellant's house in Mooroolbark and working at his garage. The appellant penetrated MVR by placing his finger in the victim's anus. The appellant also attempted to penetrate MVR's anus using his penis which hurt MVR. Thereafter the appellant asked MVR to penetrate him with his penis, which he did. In July 2000 the victim's parents stated that they did not want MVR to see the appellant any more. MVR did not know why this was and in August of 2000 he left home and lived with the appellant until Easter of 2001.

[83]

48 Counsel for the appellant relies upon the delay in the matter coming on for hearing before his Honour. It would appear that the appellant came to the attention of the police as a result of a complaint by MVR either in late 2002 or early 2003. The appellant was interviewed on 14 October 2003 and admitted the offences against MVR. He volunteered the name of DAN as a person against whom he had offended but denied any other offending. He was interviewed further on 6 July 2004 when he was told that further investigations had been conducted. There was further clarification of the offences involving DAN. When asked about AH, BH, SB and JB the appellant volunteered that he had offended against them and either gave details of his offending or indicated acceptance of the victim's account of events. In relation to AO'D the appellant admitted offending against him but contended that he was unable to give specific details of the offending. At a committal mention on 27 March 2006 the appellant was committed for trial at the County Court. He entered a plea of guilty at the time of the committal. The matter first came before the County Court in August 2006, the hearing of the plea being adjourned on a number of occasions because the appellant had difficulty in funding legal representation. Finally his plea was heard on 23 January 2007 and he was sentenced on 14 February 2007. It is submitted that the delay was a feature of the case that could not be overlooked as a matter of mitigation in the imposition of sentence. It should be noted that delay was not relied upon by counsel for the appellant at the plea as a factor to be taken into account in mitigation. The major delay in the process was the period of 21 months from the time between the admissions made by the appellant to police on 6 July 2004 until his committal for trial on 27 March 2006 when he entered a plea of guilty. This was a period of 21 months. Subsequent to his committal for trial, the matter was listed for plea on 21 August 2006 and it was on the application of the appellant that the matter was adjourned a number of times. As is apparent from the transcript of the appellant's applications for adjournments during this period of time he was continuing to conduct his renovation business and was engaged in the buying and selling of property during the period in question. Of course it is true that he had the matter hanging over his head from the time of committal until the time of his plea in the County Court. It is true that his Honour made no reference to that matter but clearly his Honour was well aware of the history of the proceedings,

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