Regina v Fear [2002] NSWCCA 361

New South Wales Court of Criminal Appeal

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 Nield DCJ OFFICER :

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

IN THE COURT OF CRIMINAL APPEAL

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 money were stolen. Most of the money from all six offences was never recovered. 4 No more need be said about the offences on the Form 1, except that five of them arose from the circumstances of the applicant's arrest, and the search of his person and a car which he had been driving, on 12 September 1999. The majority of the offences, both on the indictment and on the Form 1, were committed whilst the applicant was on bail for other offences or some of the subject offences. 5 The applicant was aged between thirty six and thirty eight at the time of the offences and is now forty one. He has a fairly long criminal record, commencing when he was twenty three years old, for offences of dishonesty, drug offences and traffic offences. His Honour had documentary and oral evidence about his background, which it is not necessary to recite. His Honour accepted that his pleas of guilty had been proffered at the earliest appropriate opportunity and discounted the sentences by twenty five percent on that account. He also accepted that the applicant was contrite and had taken steps towards rehabilitation while in custody awaiting sentence. He did not find special circumstances, noting that the overall sentence which he proposed afforded the applicant the opportunity of supervised liberty for three years.