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Armstrong v R

Armstrong v R

Case [2017] NSWCCA 323 15 December 2017

Admissibility of Evidence

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Armstrong v R [2017] NSWCCA 323
Hearing dates: 14 November 2017
Decision date: 15 December 2017
Before: Meagher JA at [1];
Rothman J at [38];
Button J at [39]
Decision:
1. Extend the time for giving notice of intention to seek leave to appeal against conviction and sentence to 25 August 2017.
2. Grant leave to appeal against conviction on the grounds proposed.
3. Dismiss the appeal against conviction.
4. Refuse leave to appeal against sentence.

Catchwords:
EVIDENCE – tendency evidence – where accused assaulted his domestic partner on two separate and earlier occasions – whether evidence of assaults had significant probative value in relation to charges of sexual assault in circumstances of aggravation namely intentionally inflicted actual bodily harm immediately before the offence – whether probative value substantially outweighed prejudicial effect
CRIME – sentencing – sexual offences – objective seriousness – where non-consensual digital penetration degrading and demeaning towards complainant – whether short duration and absence of sexual gratification diminished objective seriousness
Legislation Cited: Crimes Act 1900 (NSW), s 61, 61J
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Procedure Act 1986 (NSW), s 130A
Evidence Act 1995 (NSW), ss 97(1), 101(2)
Cases Cited: DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
House v The King (1936) 55 CLR 499
Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308
RH v R [2014] NSWCCA 71
Simpson v R [2014] NSWCCA 23
Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528
Category: Principal judgment
Parties: Mark Robert Armstrong (Applicant)
The Crown (Respondent)
Representation:
Counsel:
G Jauncey, P Lange and C Parkin (Applicant)
M Cinque SC (Crown)
Solicitors:
O Juweinat (Applicant)
C Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/11200
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 July 2013

Before:

Payne DCJ

File Number(s):

2012/11200

Headnote

[This headnote is not to be read as part of the decision]

The applicant was charged with one count of assault, two counts of sexual assault and two counts of aggravated sexual assault against the complainant, his domestic partner. The Crown relied on evidence of that assault and evidence (including CCTV footage) of another assault for which the applicant was separately charged and convicted as tendency evidence in support of each other charge.

The applicant was convicted of the assault and two counts of aggravated sexual assault and sentenced to imprisonment, including on the two counts of aggravated sexual assault. For the first, the term was eight years and six months with a non-parole period of five years and six months, commencing on 27 April 2012. For the second, the term was…

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 Armstrong v R

Details

AGLC: Armstrong v The Queen [2017] NSWCCA 323
Case: [2017] NSWCCA 323
Decision Date: 15 December 2017

CaseChat Overview and Summary

The case of Armstrong v R was heard in the High Court of Australia. The appellant, Armstrong, was convicted of sexually assaulting his domestic partner and was sentenced to imprisonment. The primary dispute was the admissibility of evidence concerning two prior assaults by Armstrong on his partner and the objective seriousness of the sexual assault charge. The court had to determine whether the prior assaults had sufficient probative value to be admitted as evidence and if so, whether their probative value substantially outweighed their prejudicial effect. Furthermore, the court was required to assess the objective seriousness of the sexual assault charge, considering factors such as the non-consensual nature of the act, its degrading and demeaning impact on the complainant, and the duration of the assault.

The legal issues centred around the principles of admissibility of tendency evidence under the Evidence Act 1995 (Cth) and the assessment of the objective seriousness of the crime for sentencing purposes. The court had to balance the probative value of the prior assaults against the risk of unfair prejudice to the appellant. Additionally, the court needed to consider the elements that contribute to the objective seriousness of the sexual offence, including the impact on the complainant and the duration of the assault.

The court concluded that the evidence of the prior assaults had significant probative value in relation to the charges of sexual assault with aggravation. The probative value of this evidence substantially outweighed any prejudicial effect it might have had on the appellant. Regarding the objective seriousness, the court found that the non-consensual nature of the digital penetration, its degrading and demeaning impact on the complainant, and the duration of the assault were critical factors. Although the absence of sexual gratification and the relatively short duration of the assault were noted, these factors did not diminish the overall objective seriousness of the crime.

The High Court upheld the conviction and sentence, affirming the trial judge's assessment of the admissibility of the prior assault evidence and the objective seriousness of the sexual offence. The court determined that the evidence of the prior assaults was admissible and that the objective seriousness of the sexual assault charge warranted the sentence imposed. The decision was in line with the principles of tendency evidence and the sentencing of sexual offences, emphasising the importance of the complainant's experience and the inherent gravity of non-consensual sexual acts.

Orders