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Court of Criminal Appeal 9 June 1999

R. v Fleming

[1999] NSWCCA 142

Assault & violenceTheft & property
APPEAL AGAINST SEVERITY OF SENTENCE ROBBERY WITH AN OFFENSIVE WEAPON REHABILITATION PROSPECTS WERE HIGH SPECIAL CIRCUMSTANCES CHRONIC ONGOING NOCTURNAL ENURESIS

Citation: R v Fleming [1999] NSWCCA 142
Court: New South Wales Court of Criminal Appeal
Date: 9 June 1999
Judge(s): Grove J; Carruthers AJ

Background

The applicant, a young man born in December 1977, pleaded guilty in the Newcastle District Court to five counts of robbery with an offensive weapon under s 97(1) of the Crimes Act 1900. He asked the sentencing court to take into account a further thirteen offences, including additional robberies, breaking and entering, larceny, and assault with intent to avoid lawful apprehension. The offences involved the applicant threatening small business operators with a large knife in order to obtain money to fund a heroin addiction and repay a drug dealer who had physically injured him to enforce a debt.

The victims of the armed robberies were proprietors or staff of small businesses who were put in genuine fear of being stabbed. The sentencing judge, Job DCJ, imposed a total sentence of eight years penal servitude, structured as a minimum term of four years and an additional term of four years. The judge found special circumstances, citing the applicant's strong rehabilitation prospects, which justified the equal division between minimum and additional terms.

The applicant sought leave to appeal against the severity of that sentence. A particular feature of his circumstances was a chronic, ongoing condition of nocturnal enuresis (bedwetting), which affects only around one percent of adults and which the applicant's legal representatives argued was causing him hardship and harassment within the prison system.

  • Whether the sentence of eight years penal servitude, with a four-year minimum term, was manifestly excessive given the applicant's subjective circumstances, including his youth, rehabilitation prospects, and medical condition.
  • Whether the sentencing judge gave adequate weight to the applicant's chronic nocturnal enuresis and the difficulties it creates in a custodial setting.
  • Whether two affidavits about the applicant's in-custody hardship qualified as fresh evidence and should have been admitted on appeal.

Decision

The Court of Criminal Appeal rejected the tender of two affidavits describing the applicant's difficulties in managing his medical condition within the corrective services environment. The court found that the material did not meet the threshold of fresh evidence required for admission on appeal.

On the substantive sentence challenge, the court found that the sentencing judge had clearly and sensitively considered the applicant's enuresis and the hardship it would cause in custody. The judge was not found to have overlooked or underweighted that factor. The court expressed an expectation that corrective services administrators would act sympathetically and take reasonable steps to assist the applicant, while acknowledging the practical limits of what could be achieved in a custodial setting.

Carruthers AJ emphasised that the sentence had been structured favourably to the applicant, precisely because the sentencing judge was confident about his rehabilitation prospects. At the same time, the court noted a growing concern about the armed robbery of small businesses, particularly those operating during evening hours with lone staff, and the importance of general deterrence in that context. The court was satisfied that the sentence imposed fell comfortably within the discretionary range available to Job DCJ.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an equal minimum-to-additional term ratio can be appropriate where a sentencing judge finds special circumstances grounded in strong rehabilitation prospects.
  • A chronic medical condition affecting an offender's experience of custody can constitute a relevant subjective circumstance at sentencing, but it does not automatically warrant a reduction in the overall sentencing range if the sentencing court has already taken it into account.
  • Material describing difficulties experienced by an offender after sentencing will not be admitted on appeal merely because it post-dates the sentence; it must satisfy the requirements for fresh evidence.
  • Where multiple serious armed robberies are involved, guideline judgments for armed robbery provide only limited assistance to an appellate court in assessing the appropriateness of a sentence.
  • The Court of Criminal Appeal identified the armed robbery of small businesses as a matter of increasing concern from a deterrence perspective, particularly where victims are isolated and lack the security infrastructure of larger commercial institutions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery with an offensive weapon)

Cases:
- Goodwin (1990) 51 A Crim R 328
- Vachalec (1981) 1 NSWLR 351
- Jones (Court of Criminal Appeal, unreported, 15 December 1993)