Regina v Fear - [2002] NSWCCA 361

CITATION: Regina v Fear [2002] NSWCCA 361

FILE NUMBER(S): CCA 60123/2001

HEARING DATE(S): 30/11/01

JUDGMENT DATE:
29 August 2002

PARTIES :

Regina
Wayne Frederick Fear

JUDGMENT OF: Hidden J at 1; Newman AJ at 19

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0639

LOWER COURT JUDICIAL
OFFICER : Nield DCJ

COUNSEL : P Byrne SC - Applicant
DML Woodburne - Crown

SOLICITORS: Glenn K Walsh - Applicant
SE O'Connor - Crown

CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - offences of armed robbery and break enter and steal - further offences on a Form 1 - no question of principle.

LEGISLATION CITED: Firearms Act 1996
Prohibited Weapons Act 1989

CASES CITED:
The Queen v De Simoni (1981) 147 CLR 383
R v PG [2001] NSWCCA 231
Pearce v The Queen (1988) 194 CLR 610.

DECISION: Appeal dismissed.

60123/01

HIDDEN J
NEWMAN AJ
Thursday, 29 August, 2002

REGINA v Wayne Frederick FEAR

JUDGMENT

1 HIDDEN J: The applicant, Wayne Frederick Fear, pleaded guilty in the District Court to six counts on an indictment, comprising two counts of armed robbery, three counts of break, enter and steal and one count of possessing a shortened firearm (an offence under the Firearms Act). He also asked the sentencing judge to take into account on a Form 1 ten further offences: robbery in company, possession of a shortened prohibited firearm and possession of a prohibited weapon (both offences under the Prohibited Weapons Act), receiving, two charges of goods in custody, two charges of possessing amphetamine, and charges of driving in a manner dangerous and driving whilst disqualified. Taking those additional matters into account, his Honour passed sentences on the six counts in the indictment, some concurrent and some cumulative, so as to arrive at an effective sentence of imprisonment for 12 years with a non-parole period of 9 years.

2 The sixteen offences were committed over the period between November 1997 and September 1999, most of them in 1999. There is no need to recite the detail of them. The three robberies, that is, the two armed robberies on the indictment and the robbery in company on the Form 1, were all committed at bowling clubs. In each case the applicant was armed with a tomahawk and was in the company of a co-offender, PG, who was himself armed, on one occasion with a revolver and on the other two occasions with a replica pistol. No-one was hurt in the course of these robberies, but they were executed professionally and substantial sums of money were stolen. On one occasion they also stole the victims’ motor vehicle.

3 The three offences of break, enter and steal were committed in commercial premises. Again, on each occasion the applicant was in company with a co-offender. On one occasion that was PG, on another it was one Douglas Carroll, while the co-offender on the third occasion remains unidentified. Again, the offences were planned and executed professionally and substantial sums of…

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 Regina v Fear

Details

AGLC: Regina v Fear [2002] NSWCCA 361
Case: [2002] NSWCCA 361
Decision Date: 29 August 2002

CaseChat Overview and Summary

In Regina v Fear, the appellant was convicted of multiple criminal offences, including armed robbery and break enter and steal. The appellant applied for leave to appeal against the sentence imposed by the lower court. The appeal centred on whether there was a question of principle justifying leave to appeal. The court was required to determine if the sentence imposed was manifestly excessive or if there was an error in the application of legal principles that warranted an appeal.

The court examined the nature of the crimes and the sentence imposed, considering whether the punishment was disproportionate to the severity of the offences. It also assessed whether the sentence reflected the principles of proportionality and consistency with other similar cases. The court found that the sentence was within the range of penalties that could be imposed for such serious offences and that there were no significant errors in the application of legal principles.

Consequently, the court held that there was no substantial miscarriage of justice or question of principle that would warrant allowing the appeal. The sentence was deemed appropriate given the circumstances of the case. Therefore, the application for leave to appeal was dismissed.

No orders were made for the appellant's application for leave to appeal.

Orders