STATE OF TASMANIA v LEIGH REGINALD DOBSON 15 AUGUST 2019
and SAMUEL JAMES FRANKLIN
COMMENTS ON PASSING SENTENCE GEASON J
Mr Dobson and Mr Franklin you are for a sentence today on a charge of aggravated assault and computer-related fraud and, in your case, Mr Franklin, on a further charge of stealing.
All of the charges arise out of a single episode on 6 July 2018 when you and another person, who will be sentenced separately, engaged in what can only be described as a despicable course of conduct against the complainant.
I sentence you on the basis of the factual matters alleged by the complainant in his evidence at trial, which I will summarise. Each of your counsel has accepted that that evidence represents the appropriate factual basis for sentencing because the jury verdict is consistent with its acceptance of his account.
On 6 July 2018, the complainant was at a residence in Blackmans Bay occupied by you Mr Dobson and your girlfriend Ms Watkins. Mr Franklin, you were also present. The complainant had been invited into the house by Ms Watkins.
He joined you both on the couch. Mr Franklin, you began interrogating the complainant. You became aggressive towards him, asking questions about his personal life, his income and his working arrangements. You accused him of lying and threatened him, and later his family, with harm.
You appear to have entertained the belief that the complainant was working undercover and that as such he presented some form of threat to you or you activities.
Mr Dobson, you appear to have thought that the complainant was behaving in a way which somehow threatened your relationship with Ms Watkins. In your mind this had been going on for some time.
Each of those views of the complainant’s behaviour was wrong. In my view the complainant was only ever seeking friendship. Nothing he did justified the behaviour directed towards him that night.
Shortly after the interrogation began, Mr Dobson, you joined in punching the complainant to his face. Mr Franklin you directed the complainant to stand up and empty his pockets, which he did. Mr Dobson you were threatening the complainant with a knife during this time. His phone was one of the items he was made to hand over, and Mr Franklin, you directed him to provide the passcode to unlock that phone. Afraid, he complied.
During the course of the evening, some of the interrogation of the complainant was recorded, and it was played in evidence at the trial. During that recording, Mr Dobson you can be heard being particularly vocal in accusing the complainant of seeking a relationship with your girlfriend, and, worse, alleging that he had somehow sexually interfered with her. He was subjected to a chorus of abuse, and threats from all three of you. He begged for his life; he begged to leave.
Mr Franklin you persisted in the fiction that the complainant had sexually interfered with Ms Watkins, during the course of your record of interview. Unbeknownst to you, at that time, your co-accused had abandoned that allegation. Yours was a devious attempt intended to implicate the complainant in wrongdoing, in order to discredit him, and thus the claims he had made against you.
His claims against all three of you were truthful claims of serious criminal conduct.
During the course of this evening, and over many hours, the complainant pleaded for his life, and he promised not to go to the police if you would let him leave. Instead, his pleas were ignored, and then money, in the amount of $7,000 was transferred from his bank account. Mr Franklin, you did the work necessary to do that. Your laptop was used. You were abetted by Mr Dobson and Ms Watkins.
Subsequently, Mr Franklin you also stole a new mobile phone, the property of the complainant, which was located in his car. You said he could have it back if he didn’t go to police.
The aggravated assault was plainly the most frightening aspect of this episode from the complainant’s perspective, and that is reflected in his victim impact statement. That fear was engendered by the aggressive questioning, the threats, the way he was made to hand over his possessions, and the use of a knife. Each of those matters in isolation would be enough to intimidate anyone in those circumstances, but in combination they have produced a truly frightening situation. The complainant was on his own in the presence of three aggressive individuals. It is not surprising that he feared for his life.
I have read the victim impact statement. The complainant has had to cope with the consequences of this crime and the fear that it has engendered. He continues to deal with it. He has had to leave the south of the State because of that fear and take up employment elsewhere at a financial cost to him, and with continuing loss of income. And, of course, he was forced to come into court and give evidence, a process he found very difficult. I do not suggest that you were not entitled to enter pleas of not guilty, but you are, by those pleas, deprived of any credit which might have accrued to you from saving the complainant from that task.
This must be regarded as a particularly serious example of the crime of aggravated assault.
In sentencing you I am required to have regard to the principle of parity between offenders, a principle which requires that those who have been parties to the commission of the same offence should, other things being equal, receive the same sentence.
However, in this case, other things are not equal.
Mr Franklin, on the one hand, you present without a record of relevant prior convictions. Mr Dobson on the other hand presents with a much more serious record of prior offending, including for assault, and breaches of family violence order. Particularly relevantly, you were sentenced in October 2017 for an assault which bears some similarity to this offending. In that case you were found guilty by a jury of, amongst other matters, an assault which included violence towards your victim by placing him in a headlock, and dragging him upstairs before he was placed in a cupboard. I note that some of your liability in relation to that episode was as an accessory, but it is conduct of a similar nature to that which has you before the Court today. It involved violence and threats of violence committed in company with another person, against a complainant who was deprived of his liberty. In that matter, you were sentenced to 12 months’ imprisonment.
In terms of the conduct on 6 July 2018, which constitutes the aggravated assault, I conclude that the involvement of each of you was essentially the same, and that your culpability is the same.
I take account of the matters that have been put to me in mitigation by your counsel. In respect of you Mr Dobson I have received a report which suggests that you are a suitable candidate for a drug treatment order. A prerequisite to the imposition of such order is a determination that a term of imprisonment is an appropriate sentencing response to the criminal conduct. It must also have been determined by the Court that no part of that sentence should be suspended.
In that respect, it is my view, having regard to your conduct and your character, as evidenced by your prior convictions, including the recent conviction to which I have referred, the principles of personal and general deterrence, denunciation, and vindication of your victim, clearly require that a sentence of imprisonment be imposed. Furthermore it is my view that because of your antecedents, including the fact that you have had the benefit of suspended sentences in the past, that it would be an error to afford you the benefit of a suspension of any part of the sentence in this case. You have failed to demonstrate that such course has any utility in effecting change in your behaviour.
Your life is at a critical stage; your history is one of continuing drug use, and repeated failures to make something of yourself. I note your family circumstances and I observe that it is a positive thing that your relationship with your parents has become a good one.
Mr Franklin, you are equally culpable, as I have said, and I am sentencing you for an additional matter, involving theft of the complainant’s iPhone valued at in excess of $1,000. You do not have relevant prior convictions and that stands in your favour, because it permits you to say that this episode was an aberration. Nevertheless it was a particularly serious aberration and it requires the strongest condemnation.
In your case, I am not asked to make a drug treatment order.
I will sentence each of you on a global basis, that is, I will impose one sentence in respect of all matters.
Mr Franklin you are convicted. You are sentenced to 16 months’ imprisonment. You have served 10 months and 2 days of that sentence. I suspend the operation of the balance of that sentence on condition that for a period of 3 years you are of good behaviour and commit no offence for which a term of imprisonment may be imposed. If you do, you can expect that the Court will re-impose the sentence that I just handed down, and you will have to serve the remainder of the sentence. Do you understand? [Defendant Franklin: “Yes, your Honour”.]
Mr Dobson I sentence you to 23 months’ imprisonment. I take into account that you have served 9 months and 7 days of that sentence. You served an additional 3 months in relation to another matter. I have regard to that other matter only in terms of the totality principle.
You will not be required to serve the balance of the sentence unless ordered by this Court if you do not comply with the terms of the drug treatment order which I now make.
You are convicted. I make a drug treatment order pursuant to s 27B of the Sentencing Act by which you are sentenced to a term of imprisonment of 23 months. However you are not required to serve the balance of that sentence unless ordered by this Court if you do not comply with the core and program conditions of the order. The order will contain the core conditions provided for in s 27G of the Sentencing Act.
The program conditions under s 27H of the Act will be as follows:
(a) you must comply with all reasonable directions of your court diversion officer including in relation to case management appointments, counselling, medical appointments or assessments, urinalysis and any other appointment or assessment as required;
(b) you must submit to drug testing as directed by your case manager or court diversion officers;
(c) you must submit to detoxification or other treatment, whether or not residential in nature, as directed by your case manager or court diversion officers;
(d) you must attend vocational, educational, employment, rehabilitation or other programs or as directed by your case manager of court diversion officers;
(e) you must submit to medical, psychiatric or psychological treatment as directed by your case manager or court diversion officers;
(f) you must not associate with any member of any [Club] or [Associates].
(g) you must reside at [Address] and be there between the hours of 9:00pm and 7:00 am unless you have obtained prior approval from your Court Diversion Officer to be absent;
(h) you must do or not do any of the following things that the court considers necessary or appropriate concerning:
- i) your illicit drug use; or
- ii) the personal factors that the court considers contributed to your criminal behaviour;
(i) you must not use or associate with anyone who uses – any illicit substances.
(j) you must not use any prescription medication without approval from a general practitioner and only take prescribed medication in accordance with directions;
(k) you must refrain from the consumption of alcohol and submit to alcohol testing as directed by your Court Diversion Officer;
(l) you must be contactable by telephone at all times and inform your case manager of any change of telephone number.
If you fail to comply with the order, the sentence that I have just imposed will be activated and you will be required to serve it. This is your opportunity to take advantage of a sentencing option which is not a soft sentencing option, and, in fact, imposes serious limitations upon your liberty and general behaviour. If you do not take advantage of this opportunity, you can expect to be appearing before courts for sentence on a regular basis, because drugs are clearly at the heart of your offending. So I urge you to take advantage of this opportunity.
You must appear following the making of this order in the Magistrates Court of Tasmania at Hobart on 23 August 2019 at 10:00 am.
I make a compensation order against each of you in favour of the complainant in an amount to be assessed.