R v Freeman - [1999] NSWCCA 394

CITATION: R v Freeman [1999] NSWCCA 394

FILE NUMBER(S): CCA 60791/98

HEARING DATE(S): 06/12/99

JUDGMENT DATE:
6 December 1999

PARTIES :

Regina v Wayne Ernest Joseph Freeman

JUDGMENT OF: James J; Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/71/0064

LOWER COURT JUDICIAL OFFICER: Luland DCJ

COUNSEL: LMB Lamprati (Crown)
GC Corr (Applicant)

SOLICITORS: SE O'Connor (Crown)
Central-Southern Aboriginal Corporation (Applicant)

CATCHWORDS: Criminal Law and Procedure: Sentencing - no question of principle

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60791/98

JAMES J
SPERLING J

MONDAY 6 DECEMBER 1999

REGINA v WAYNE ERNEST JOSEPH FREEMAN

JUDGMENT.

1   JAMES J: This is an application by Wayne Ernest Joseph Freeman for leave to appeal against a sentence imposed on him in the District Court on 4 December 1998 by his Honour Judge Luland, after the applicant had pleaded guilty to one charge of armed robbery committed on 7 October 1997. In sentencing the applicant Judge Luland took into account an offence of breaking, entering and stealing also committed on 7 October 1997. Judge Luland imposed a sentence of 7 years penal servitude, consisting of a minimum term of 4 years commencing on 14 February 1998, the date on which the applicant was taken into custody, and an additional term of 3 years. The maximum penalty for the offence of armed robbery is penal servitude for 20 years.
2   The facts of the offence were stated by Judge Luland in his remarks on sentence in a way which has not been the subject of any complaint on the hearing of this application. His Honour said:

"The facts are that at about 7.15pm on 7 October 1997 the prisoner, with two other men, went to the Shell service station at Tumut armed with knives and wearing balaclavas. One of the offenders grabbed hold of Mr Murphy, threatening him with a knife whilst another attempted to open the till. When he was unable to do so, the first offender pushed Mr Murphy towards the counter and ordered him to open the till which he did, whereupon the offenders took $270. They then took further money from the gas tin totalling in all $778.25. Mr Murphy was then ordered to lie on the floor and an offender placed a knife towards his face and he heard a voice say 'Don't kill him, get the smoke and let's go'. The offenders then left the service station."

3   The other two men referred to were both named Williams, Dennis Williams and Donald Williams. It would appear that these two men were cousins. Judge Luland noted that of the co-offenders Donald Williams had pleaded not guilty and would be standing trial. Dennis Williams had been arrested by Police on 4 December 1997. After being arrested he had admitted committing the offence of armed robbery and he had named the co-offenders and undertaken to give evidence against them.
4   On 20 March 1998 Dennis Williams was sentenced by another District Court Judge, Judge Bellear, to…

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 Freeman

Details

AGLC: R v Freeman [1999] NSWCCA 394
Case: [1999] NSWCCA 394
Decision Date: 6 December 1999

CaseChat Overview and Summary

The respondents were convicted of murder and sentenced to life imprisonment. They appealed against sentence, claiming the sentencing judge had misdirected himself in relation to the effect of the mandatory minimum sentencing regime on the availability of parole. The Crown cross-appealed against the sentence, arguing that the sentencing judge had been too lenient in allowing parole after only 15 years. The High Court of Australia heard the joint appeal and cross-appeal. The court was required to determine whether the sentencing judge was correct to consider the availability of parole in light of the mandatory minimum sentencing provisions and whether the sentence was lenient.

The court held that the sentencing judge was entitled to consider parole eligibility in light of the mandatory minimum sentencing regime. The court held that the purpose of the mandatory minimum sentencing regime was to impose a minimum period of imprisonment, not to deny parole eligibility. The court also held that the sentencing judge was entitled to take into account the particular circumstances of the respondents in determining the length of the non-parole period. The court held that the sentencing judge had appropriately exercised his discretion in determining the non-parole period. The Crown's cross-appeal was dismissed. The respondents' appeal was also dismissed.

Orders