New South Wales Court of Criminal Appeal 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 Goodwin (1990) 51 A Crim R 328 CASES CITED: 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 a young man having been born on 3 December 1977 and there were considerable subjective circumstances which his Honour took into account including general acceptance of the proposition that the rehabilitation prospects were high. Indeed, it was for this reason that his Honour found special circumstances and structured the sentence so that the minimum term was equivalent to the additional term. 5 Significantly, there was before his Honour for consideration a report dated 22 June 1998 from Duffy Barrier Robilliard, psychiatrists, of Chatswood relevant to the applicant which included reference to the fact that the applicant has a history of chronic ongoing nocturnal enuresis. It appears that in only about one percent of cases does this unfortunate condition extend into adulthood. Regrettably, the applicant represents one of the one percent. 6 Ms Burgess for the applicant sought at the outset of the hearing to tender two affidavits demonstrating the hardship and harassment it is said which the applicant is suffering as a result of endeavouring to cope with his enuresis within the Corrective Services Environment. This court rejected the tender of those two affidavits upon the basis that they did not constitute fresh evidence. 7 Reference should be made to Goodwin (1990) 51 A Crim R 328 and in particular Vachalec (1981) 1 NSW LR 351 and Jones, CCA 15 December 1993. 8 The various subjective matters to which Ms Burgess drew our attention were quite clearly the subject of consideration by his Honour and his Honour specifically referred to the enuresis and it is quite clear from reading his Honour's remarks on sentence that he was sensitive to the difficulties and embarrassment which the applicant necessarily suffers and would suffer within the prison system from this unfortunate condition. One can reasonably expect that those responsible for the administration of Corrective Services Institutions would be sympathetic to the applicant's problems and take whatever steps are reasonable to ameliorate them, acknowledging of course that there are limits as to what can be done within the gaol system. 9 Reference was made to the recent armed robbery guideline judgments but one must necessarily get limited assistance from them when dealing with a case such as the present where there are multiple armed robberies. 10 I have no doubt that his Honour was sensitive to the fact that the applicant committed the subject offences when he was at a low ebb physically, morally, and that his judgment was necessarily impaired to such a stage that it may fairly be said, to use Ms Burgess's words, that he had lost control of his life, and indeed that there was positive evidence at the time of sentence of good character before the Judge independently of the serious matters to which the applicant had pleaded guilty. 11 It was necessary for his Honour to weigh the subjective circumstances and the hopeful prospects of rehabilitation as against the serious objective circumstances. It was the confidence which his Honour felt about the prospects of rehabilitation that prompted him to structure the sentence in the way in which he did which, in my respectful view, overall is favourable to the applicant, bearing in mind that it is now well established that the minimum term must itself reflect the degree of criminality involved in the subject offence or offences. However, it would not be appropriate to leave this matter without referring to the matter which the Crown adverted to, namely, there is an increasing trend of concern to those required to administer the criminal law towards the armed robbery of small businesses, bearing in mind the much more stringent security provisions that are made by larger institutions such as banks, video stores and large businesses to cope with the invasion of their premises by persons addicted to drugs and seeking moneys to feed that habit. 12 It is now a matter of great concern that people who are required to attend small businesses, particularly during evening hours when they are alone, feel themselves continually at risk from armed robbery. This is a very important matter from a deterrent point of view. 13 Having considered the objective circumstances and the subjective circumstances and giving due weight to the helpful submissions that have been put before this court both on behalf of the applicant and the Crown, I am completely satisfied that the sentencing regime imposed by his Honour was completely within the discretionary range available to him. Accordingly, I would propose that the court grant leave to appeal but dismiss the appeal. 14 GROVE J: I agree with Mr Justice Carruthers. The orders of the court will be as he has proposed. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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