Regina v Flood [1999] NSWCCA 240

New South Wales Court of Criminal Appeal CITATION : Regina v Flood [1999] NSWCCA 240 FILE NUMBER(S) : CCA 60333/98; 60334/98 HEARING DATE(S) : 28 June 1999 JUDGMENT DATE : 28 June 1999

PARTIES : Regina v Jeffrey James Flood Regina v Scott Joseph Flood JUDGMENT OF : Sully J; Bell J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/51/0074 LOWER COURT JUDICIAL OFFICER : Hosking DCJ

COUNSEL : J. C Nicholson SC/C. Lyons (Appellant) L. M. B. Lamprati (Crown) SOLICITORS : T. A. Murphy (Appellant) C. K. Smith (Crown) CATCHWORDS : R v Coleman (1990) 47 ACrimR 306; CASES CITED: R v Fletcher-Jones (1994) 75 ACrimR 381 at 387; R v Johnson [1917] 17 SR(NSW)481-4; and R v Sorlie [1925] 25 SR(NSW) 532 at 539 DECISION : Leave to appeal granted in each case.; Appeal dismissed in each case.

IN THE COURT OF CRIMINAL APPEAL

60333/98 60334/98

SULLY J BELL J

28 June 1999

REGINA v Jeffrey James FLOOD REGINA v Scott Joseph FLOOD

JUDGMENT

1 SULLY J: On 2 June 1998 the present applicants, who are brothers, stood for sentence before his Honour Judge W.D Hosking QC, then sitting in the District Court at Coffs Harbour. Each applicant had pleaded guilty before his Honour to four offences which were related offences arising out of one set of circumstances. 2 The first offfence to which each applicant pleaded guilty was an offence of armed robbery, an offence which contravenes s 97(1) of the Crimes Act and attracts a statutory maximum penalty of penal servitude for twenty years. The second and third matters involved the stealing of a motor vehicle, a contravention of s 154AA(1) of the Crimes Act and attracting a statutory maximum penalty of penal servitude for ten years. The fourth offence was that of detaining a person with intent to hold for advantage, a contravention of s 90A of the Crimes Act and attracting a statutory maximum penalty of penal servitude for fourteen years 3 In respect of the offence of armed robbery, the learned sentencing Judge imposed a penalty in the case of each applicant of penal servitude for six years apportioned between a minimum term of three years and six months and an additional term of two years and six months. In respect of the two offences relating to the stealing of a motor vehicle, his Honour imposed a fixed term of penal servitude for two years and to be served concurrently with the sentence imposed in respect of the armed robbery. In respect of the detaining with intent to hold for advantage offence, his Honour fixed a term of penal servitude for three years imposed as a fixed term and to be served concurrently with the other penalties. 4 Each applicant seeks leave to appeal against the severity of those sentences. 5 The objective facts can be shortly stated as follows: on the day in question, which was 7 March 1998, the two applicants approached a young man called Bottero in a public carpark. Put simply, they told him they were intending to rob him; forced him into the back seat of his parents' vehicle, which was then in his charge; drove him for some time to a variety of locations; and robbed him of various property. There is no precise evidence as to the total length of time occupied by that sequence of events; but it is reasonable to infer from the evidence, otherwise, that it was not, so to speak, over in the twinkling of an eye, but did entail some not insignificant passage of time. 6 The victim in question was a nineteen-year old youth. He gave a statement to the police which describes graphically what happened. He says he was approached "from either side" by the two applicants. One of them produced "a large hunting-style knife" which was in fact a fishing knife. What then occurred is set out in Mr Bottero's statement as follows: "The one carrying the knife said, 'Give me the keys and your wallet. I am serious'. I then handed him my keys and I took my wallet out of my back pocket and gave it to him. He then grabbed me by the right arm and shoved me towards the back passenger's side of the vehicle. The other fellow open the doors with the key as the vehicle has central locking. He then shoved me into the back of the vehicle and pushed me across to the driver's side. The one with the knife got in the back beside me and the other fellow got in the driver's seat. The fellow in the front went through my wallet and took $35 that I had in my wallet, which was a $20 note, a $10 note and a $5 note. There was also about $5 of coin.