CRIMINAL LAW – Appeal – Sentence – Manslaughter – Guilty plea – Sentence of 10 years’ imprisonment with non-parole period of 8 years – Unprovoked attack on stranger – Alcohol-fuelled violence – Applicant had history of violent offending while intoxicated – Community correction orders for prior offending not complied with – Whether non-parole period reasonably open to sentencing judge – Judge entitled to place limited weight on prospects of rehabilitation – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Judge took into account that offending ‘worryingly prevalent’ – Whether judge impermissibly ‘double counted’ prevalence by treating as independent factor and as factor aggravating other sentencing considerations – Leave to appeal refused.
On 1 December 2022, the applicant pleaded guilty before a judge of the Supreme Court to one charge of manslaughter causing the death of Luke Francis. Following a plea in mitigation, on 30 June 2023 the judge sentenced him to 10 years’ imprisonment with a non-parole period of 8 years.[1]
On 26 March 2022, from around midday, the applicant attended a barbeque festival with four members of his family including his cousin Joshua Armstrong. Then aged 26, the applicant had lunch with his family and consumed about three cans of full-strength beer. At about 4:00 pm, the group travelled to a bar at Southern Cross Railway Station to watch a game of football. The applicant consumed two or three schooners of beer at that bar.
At about 5:00 pm, the group walked to the Great Southern Hotel and checked in to a hotel room. They got ready to go out, having a beer each while doing so. About two hours later, they left for Crown Casino, where they arrived at 7:58 pm.
For the following three hours, the group gambled, drank alcohol and danced. The applicant consumed about five drinks during that period.
Mr Francis had been at work that day, finishing in the early afternoon. He then travelled to a friend’s house where he met a group that included his girlfriend Tessa Penberthy. The group then travelled to a music festival in the Melbourne CBD. They stayed at the festival for about five hours, leaving around 11:00 pm.
After the festival, Mr Francis and Ms…
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.
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Details
AGLC
Armstrong v The King [2024] VSCA 316
Case
[2024] VSCA 316
Decision Date
CaseChat Overview and Summary
The appellant, Armstrong, appealed against his sentence for manslaughter, contending that the non-parole period was excessive. Armstrong had pleaded guilty to an unprovoked attack on a stranger, which occurred while he was intoxicated. The attack was a continuation of his history of violent offending while under the influence of alcohol. Despite previous community correction orders for similar offences, Armstrong had not complied with them. The trial judge sentenced Armstrong to 10 years' imprisonment, with a non-parole period of 8 years, finding the offence particularly egregious due to its unprovoked nature and the prevalence of alcohol-fuelled violence. Armstrong argued that the non-parole period was not reasonably open to the sentencing judge and that the judge had erred in considering the prevalence of such offences as both an aggravating factor and an independent factor in the sentencing process.
The court was required to determine whether the non-parole period imposed was reasonably open to the sentencing judge, considering the mitigating and aggravating factors. It also had to consider whether the judge had correctly assessed the relevance of the prevalence of such offences and whether this constituted a form of double counting. The appeal hinged on the interpretation of the trial judge's reasoning and the principles of sentencing for manslaughter, particularly in the context of alcohol-related violence. The court had to balance the need for deterrence and denunciation with the potential for rehabilitation, especially given Armstrong's history of non-compliance with community orders.
The Court of Appeal held that the sentencing judge was entitled to consider the prevalence of alcohol-fuelled violence as both an aggravating factor and an independent consideration. The court found that the non-parole period was reasonably open to the judge, taking into account the severity of the offence and Armstrong's history of violent offending. The court also held that the judge did not impermissibly double count the prevalence of such offences. The appeal was dismissed, with the Court of Appeal affirming the trial judge's assessment of the mitigating and aggravating factors and the appropriateness of the non-parole period. The decision was consistent with the principles outlined in Stefani v The Queen and the approach taken in Cummins (a pseudonym) v The Queen.