Legal Research
Cases
Armistead v The Queen

Armistead v The Queen

Case [2011] VSCA 84 5 April 2011

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0686

BRADLEY ARMISTEAD

THE QUEEN

---

JUDGES	REDLICH and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 January 2011
DATE OF JUDGMENT	5 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 84
JUDGMENT APPEALED FROM	R v Armistead [2008] VCC 0437 (Judge Wood)

---

CRIMINAL LAW – Conviction – Two counts of possession of unregistered firearm on separate days – Continuity of possession – Whether permissible to lay two counts – Conviction on second count quashed.

CRIMINAL LAW – Sentencing – Two counts of armed robbery – Whether double punishment for possession of firearm – Sentence on second count of possession manifestly excessive – Fresh evidence of provisional diagnosis of bipolar disorder – Whether relevant to substance abuse and gambling addiction and hence to prospects of rehabilitation – Re-opening of sentencing discretion – Material error on individual sentences – Quashing of conviction and sentence on one count and error in sentence on another count – Sentencing discretion re-opened with respect to non-parole period but not other individual sentences.

---

Appearances:	Counsel	Solicitors
For the Appellant	Ms H Spowart	Victoria Legal Aid
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

The appellant pleaded guilty in the County Court to two counts of armed robbery (counts 1 and 3) and two counts of possessing an unregistered firearm whilst being a prohibited person (counts 2 and 4). The primary questions raised in this appeal concern the validity of the conviction on the second count of possession of an unregistered firearm, whether the principle against double punishment has been infringed in the sentences imposed on the counts of possession and if so, whether the sentencing discretion should then be re-opened with respect to any of the other sentences imposed.

The conduct the subject of counts 1 and 2 occurred on 18 September 2007. The appellant drove to the Warrnambool Football Club in a vehicle bearing false numberplates. Wearing a black balaclava over his head and carrying an imitation handgun he entered the gaming area of the club. He repeatedly yelled at the nearest employee to get down on the ground, pointing the imitation handgun at him. He demanded money from another employee and was handed a cashbox containing $9700. The appellant then fled the premises in the vehicle, attracting the attention of witnesses who called the police.

The offences the subjects of counts 3 and 4 were committed two months later, on 19th November 2007, in Seymour. The appellant robbed the Goulburn Murray Credit Union with the same imitation handgun used in the previous robbery. Prior to the robbery, the appellant sat in his vehicle opposite the credit union and watched for between 30 minutes to an hour until there were no customers in the bank. The appellant then pulled the hood of his jumper over his head and entered the premises, confronting the first teller with the imitation handgun and demanding money. The teller placed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armistead v The Queen

Details

AGLC: Armistead v The Queen [2011] VSCA 84
Case: [2011] VSCA 84
Decision Date: 5 April 2011

CaseChat Overview and Summary

The case of Armistead v The Queen involved a defendant who had been convicted on two counts: one of possession of an unregistered firearm on a particular day, and another on a separate day. The defendant appealed against these convictions and sentences before the High Court of Australia. The central legal issues revolved around the continuity of firearm possession and whether the defendant could be convicted on two separate counts for possessing the same firearm on different days. Additionally, the court had to determine if the sentence imposed for the second count of firearm possession was manifestly excessive and whether the sentencing process adequately considered fresh evidence of a provisional diagnosis of bipolar disorder, which could impact the defendant's prospects of rehabilitation.

The court examined the principle of continuity of possession and concluded that the law did not permit the laying of two separate counts for the possession of the same firearm on different days. This reasoning led to the quashing of the conviction on the second count of possession. Regarding the sentencing issue, the court found that the sentence for the second count of possession was indeed manifestly excessive. Furthermore, the court acknowledged that the provisional diagnosis of bipolar disorder, which was relevant to the defendant's substance abuse and gambling addiction, should have been considered during sentencing. The diagnosis could have impacted the assessment of the defendant's rehabilitation prospects.

Consequently, the court determined that there had been a material error in the sentencing process. The conviction and sentence on the second count were quashed, and the sentence on the first count was found to be materially erroneous as well. However, the court clarified that while the sentencing discretion was reopened with respect to the non-parole period, it was not extended to the individual sentences on the counts of armed robbery. This nuanced approach ensured that the court balanced the need to correct sentencing errors with the importance of finality in criminal convictions.

Orders