R v Freeman [1999] NSWCCA 394

New South Wales Court of Criminal Appeal 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."