Killer driver Mitchell Deane Franklin jailed — despite judge’s misgivings
A KILLER driver who was distracted by his in-car DVD player will serve at least two years and nine months in jail — but a judge said his sentence would have been lower if not for mandatory sentencing laws.
- Analysis: Here’s why we need killer driver sentencing laws
- Judge: Passing harsh sentences on killer drivers is ‘disheartening’
- Guilty: Judge tells distracted wrestling fan to ‘prepare for jail’
- ‘The huge void’: Family tells of loss of beloved patriarch
A KILLER driver who was distracted by his in-car DVD player will serve at least two years and nine months’ jail — but only, a judge says, because of mandatory sentencing laws.
On Thursday, District Court Judge Paul Muscat said he would have jailed Mitchell Deane Franklin for less time, were he not “constrained” by legislation.
He said it would have been appropriate given Franklin’s good background, history of community service and remorse, despite the death of Harvie Spencer having been “so utterly avoidable”.
“You can doubt the utility of (mandatory sentencing) ... however, Parliament creates the law and it is the court’s duty to apply it,” he said.
“Had I not been so constrained, it would have been a significantly lower non-parole period to reflect your many good personal qualities and to encourage your rehabilitation.
“It’s not as if you are a recidivist offender who has not reformed — far from it.
“I think that any fair-minded observer sitting in this courtroom who has listened to all of the circumstances would also agree with that.”
Outside court, Mr Spencer’s son Colin said he was “happy” with the sentence, though he had “been hoping for maybe five years”.
Franklin, 28, of Andrews Farm, killed Harvie Spencer, 86, by driving dangerously on the Augusta Highway in June 2013.
He also caused harm to one of his own passengers when he crashed into Mr Spencer’s car, which was lawfully stationery as it waited to turn right across the highway.
A jury found, beyond reasonable doubt, Franklin was distracted by a wrestling event — WWE’s SmackDown: No Way Out — being shown on the in-dashboard DVD player.
Franklin gave evidence and denied watching the movie.
Had be not been distracted, his trial heard, Franklin would have had up to 10 seconds to avoid slamming into Mr Spencer’s sedan.
Franklin faced a maximum sentence of 15 years’ jail — had speed, alcohol or drugs been involved, that penalty would have been life imprisonment.
Last week, Judge Muscat said sentencing killer drivers was “disheartening” for the bench, due to laws requiring they serve at least 80 per cent of their penalty behind bars.
He noted other offenders going before the District Court, including rapists and drug traffickers, were not subject to similar mandatory sentencing regimes.
On Thursday, Judge Muscat acknowledged he had come under criticism for his comments.
“Sentencing an offender is not a precise process,” he said.
“It’s important that the public understand the complexity of the process, even though it may be disconcerting to some when a sentence doesn’t seem long enough to them, or merciful enough to others.
“In sentencing, often as in life, one size does not fit all ... that is the point I was making.”
He said that, on the one hand, Franklin was a good son, husband and father who had worked with disadvantaged youth and the homeless, and had never before committed an offence.
“You are a young, upstanding Aboriginal man who has striven to become a positive role model for other Aboriginal men,” he said.
“I consider that you are a good man ... it’s important for the court and others to acknowledge that you possess many good qualities.”
On the other, his crime was too serious to warrant a suspended jail term or home detention sentence.
“After all, it was you who put the wrestling DVD on,” he said.
“I reject your evidence that you never once looked at the screen ... (that is) simply unbelievable ... it defies ordinary human behaviour and ordinary human temptation.
“Your insistence (at trial) that you did not (look at the screen) was so incredible that it bordered on the absurd.
“(This was) not a situation of ‘if’ something tragic was going to happen, but rather a situation of ‘when’ it was going to happen.”
Judge Muscat said Mr Spencer’s family had been profoundly affected by the crime, which they had dubbed “selfish, self-indulgent and reckless”.
“(This was) so utterly avoidable,” he said.
“If you had been watching the road ahead, as you should have, and not watching the wrestling match then such tragic consequences would have been avoided.
“There are few crimes where the lives of so many people are affected as the crime of causing death by dangerous driving ... nothing but tragedy ever results.
“And to think it could have been avoided if you had simply observed the road rules.”
He jailed Franklin for 3 ½ years, imposed a non-parole period of two years, nine months and 18 days, and disqualified him from driving for 10 years upon his release.