R. v Fleming - [1999] NSWCCA 142

CITATION: R. v Fleming [1999] NSWCCA 142

FILE NUMBER(S): CCA 60545/98

HEARING DATE(S): 9 June 1999

JUDGMENT DATE:
9 June 1999

PARTIES :

Regina v Nathan Raymond Fleming

JUDGMENT OF: Grove J at 14; Carruthers AJ at 1-13

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 93/31/0219
98/31/0257

LOWER COURT JUDICIAL OFFICER: Job DCJ

COUNSEL: P.G. Berman for the Crown
R.D. Burgess for the Applicant

SOLICITORS: C.K. Smith for the Crown
T.A. Murphy for the Applicant

CATCHWORDS: Appeal against severity of sentence; Robbery with an offensive weapon; Rehabilitation prospects were high; Special circumstances; Chronic ongoing nocturnal enuresis

ACTS CITED: s 97(1) of Crimes Act, 1900

CASES CITED:
Goodwin (1990) 51 A Crim R 328
Vachalec (1981) 1 NSWLR 351
Jones (CCA, unreported 15/12/93)

DECISION: Leave to appeal granted; Appeal dismissed

- 6 -
IN THE COURT OF
CRIMINAL APPEAL
No 60545/98
GROVE J
CARRUTHERS AJ

WEDNESDAY 9 JUNE 1999
REGINA V NATHAN RAYMOND FLEMING
JUDGMENT:
GROVE J: I will ask Mr Justice Carruthers to give the
first judgment.
1 CARRUTHERS AJ: Nathan Raymond Fleming seeks leave to appeal against sentences imposed upon him by his Honour Job QC at the Newcastle District Court on 12 August 1998. The applicant had earlier pleaded guilty before his Honour to five charges of robbery with an offensive weapon, pursuant to s 97(1) of the Crimes Act. He asked that a further thirteen offences be taken into account on two form two schedules. These offences were four charges of robbery, one charge of demanding money with menaces, four charges of breaking, entering and stealing, three charges of larceny and one count of assault with intent to avoid lawful apprehension.
2 His Honour sentenced the applicant to eight years penal servitude comprising a minimum term of four years and an additional term of four years. The maximum penalty for the robbery offences is twenty years penal servitude. The armed robbery charges were serious ones involving the use of a large knife with the intention of obtaining money from shop keepers in small businesses so that the applicant could feed his heroin addiction and repay moneys that he owed to the dealer from whom he obtained heroin. His Honour was satisfied that at the relevant time the applicant had been subjected to a form of physical injury by the dealer to enforce his claim for payment of the moneys said to be owing to him.
3 It is clear from the material before us that in relation to the five armed robbery matters the victims, who were the proprietors or persons serving within the small businesses, were put in fear. Extracts have been obtained from their statements and one can observe statements such as:"I was afraid that I might be stabbed and badly injured"; "I only parted with the money because I was frightened that I may have been seriously injured by being stabbed"; "I was shaking and crying"; "I am still feeling the stress from this incident".
4 The applicant was and is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R. v Fleming

Details

AGLC: R. v Fleming [1999] NSWCCA 142
Case: [1999] NSWCCA 142
Decision Date: 9 June 1999

CaseChat Overview and Summary

In the case of R. v Fleming, the appellant challenged the severity of his sentence imposed for the offence of robbery with an offensive weapon. The matter was heard and determined in the High Court of Australia. The appellant was convicted for robbing a victim while armed with a knife and was sentenced to a term of imprisonment. He argued that the sentence was excessive given his prospects for rehabilitation and special personal circumstances, including chronic nocturnal enuresis.

The central legal issue the court had to resolve was whether the trial judge erred in imposing a sentence that was too severe, considering the appellant's prospects of rehabilitation and the special personal circumstances presented. The appellant contended that the trial judge had failed to adequately consider the mitigating factors, particularly his high potential for rehabilitation and his chronic condition of nocturnal enuresis. The Crown, on the other hand, argued that the severity of the offence warranted a substantial custodial sentence, and that the trial judge had appropriately balanced the aggravating and mitigating factors.

The court held that the trial judge had not erred in imposing the sentence. It was determined that while the appellant's prospects for rehabilitation and his personal circumstances were relevant considerations, they did not override the need to impose a sentence that reflected the seriousness of the offence. The court found that the trial judge had appropriately weighed all relevant factors, including the nature and circumstances of the offence, the appellant's criminal history, and his potential for rehabilitation. The appeal was dismissed, and the original sentence was upheld.

No additional orders were made beyond the dismissal of the appeal. The appellant's sentence as imposed by the trial judge was confirmed, and he was required to serve the term of imprisonment originally determined.

Orders