Preventive detention sentence for kidnapping quashed by Court of Appeal

Mark Franklin threatened to cut his victim's underwear off with a fishing knife. Photo / Getty Images

A man who kidnapped and assaulted his ex-girlfriend - and came out as gay shortly before facing justice - has now had his sentence reduced.

Mark David John Franklin was initially sentenced in the High Court at Whangarei to preventive detention for kidnapping, assault with a weapon and male assaults female.

In a decision released this week, the Court of Appeal has reduced the sentence to three years and two-and-a-half months for kidnapping and assault with a weapon, and one year on the male assaults female charge.

Franklin had previous assault convictions and was earlier sentenced to eight years in prison for rape, unlawful sexual connection, assault and injury with intent to injure.

He had been out of prison for less than three months when the kidnapping took place.

This week's Court of Appeal decision, delivered by Justice Miller, cited Franklin's pattern of offending as a reason for reconsidering the sentence.

"While Mr Franklin reoffended very soon after his release from prison for similar offending, he cannot be said to exhibit an entrenched pattern of past offending.

"Since 2006 ... he has otherwise only convictions for assault in 2007 and 2008, and one conviction for male assaults female."

The victim of Franklin's offending was a woman he was in an on-and-off relationship with.

When Franklin was released from prison in January 2017 on an extended supervision order, one condition of the order was that he not contact the woman.

He broke that condition within a month of his release.

On April 2, 2017, he picked her up in his car and "abused her" for going to church. She jumped out of his car, then got back in when he threatened her.

"He drove her north towards Paihia and forced her, while the car was moving, to remove her shorts," the judgment said.

"She refused to remove her underwear, so he grabbed his fishing knife and threatened to cut the underwear off. She attempted to jump from the moving car and a struggle ensued."

She jumped out of the car when Franklin pulled over, but then began to cut himself with a fishing knife in an attempt to make her come back.

Another charge of male assaults female resulted from a second incident a week later when he "restrained her, spat in her face and abused her".

"He placed his hand around her throat and threw her on to the bed."

Franklin came out as homosexual shortly before sentencing, which was noted in the psychological report.

"[The psychologist] concluded that if Mr Franklin continues to identify as gay and ceases to engage in relationships with women, his typical offence cycle is not likely to continue, but it may do so if he has obsessive control issues in gay relationships.

"The failure of past programmes could likely be ascribed to the fact that treatment programmes were not addressed at one of the key reasons for his offending, namely his difficulties coming to terms with his sexual identity."

Another reason the judges gave for quashing the initial sentence was the possibility of psychological treatment.

"Based on the health reports, we are unable to say that treatment is unlikely to help Mr Franklin.

"Past treatment had some success, and while the Judge was entitled to be sceptical about his change of sexual identity, the psychologist considers that it may account for the failure of past treatment."

The appeal judges also noted that the offending was not as serious as in some cases.

"The index offending was undoubtedly serious, and traumatic for the victim. Mr Franklin's attempt to control her by strangling her is of particular concern.

"His conduct is highly manipulative. That said, the offending was not especially serious by the standards of such cases."