Director of Public Prosecutions v Armstrong
[2022] VCC 1362
•18 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR 22-00956
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEE ARMSTRONG |
---
JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 August 2022 | |
CASE MAY BE CITED AS: | DPP v Armstrong | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1362 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords:
Legislation Cited:
Cases Cited: Latorre v The Queen [2012] VSCA 280; 226 A Crim R 319
Sentence:Four months' imprisonment combined with a Community Corrections Order for 12 months and $2,000 Restitution Order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Pirrie | Office of Public Prosecutions |
| For the Accused | Mr B. P. Penno | Mr L. Slater |
HIS HONOUR:
1Lee Armstrong, you have pleaded guilty to one charge of theft. That offence carries a maximum period of 10 years' imprisonment. You have also pleaded guilty to one charge of blackmail which carries a maximum penalty of 15 years' imprisonment.
2You have pleaded guilty to summary offences of committing an indictable offence on bail which carries a maximum of three months' imprisonment and possessing cartridge ammunition which carries a fine.
3You have admitted your prior convictions. I shall say more about them later in these sentencing remarks.
4The Crown tendered a summary prosecution opening as Exhibit A. A summary of your offending is as follows.
5
At about 3.00 am on 21 December 2021 you arrived at the home of
Drew Ann McArdle. You arrived with Dalton and Hayden Espagne - co-accused whose matters have not yet been heard. The three of you arrived with two unknown persons. Ms McArdle was at home with her ex-boyfriend
Zachary Coggerand a mutual friend Jorja Dempster.
6The victim, the three accused and Cogger are all known to each other.
7You and the two co-accused started banging on the doors and yelling at the occupants. Dalton Espagne was saying to Ms McArdle 'pay me my money'.
8You and the two accused stole Ms McArdle's golden retriever dog. That forms basis of Charge 1 of theft.
9
Ms McArdle rang the police and drove to Dalton Espagne's home. On the way
Ms McArdle telephoned Dalton Espagne and asked if he had the dog, to which he replied that he did. He stated that he wanted $2,000. You spoke into the phone and said 'I want my money as well.' It is not clear what money you were referring to.
10At the property, Ms McArdle asked to see the dog. Hayden Espagne stood close to Ms McArdle and stated 'you’re going to pay now or I'm going to slit your throat'. Ms McArdle saw the dog and made an unsuccessful attempt to transfer the money by phone.
11At 12.01 pm, so several hours later on 21 December, you texted one of the Dalton brothers, stating, 'fucking ring me [and I am not going to use the word you use] or I'm going to kill this fat [expletive][referring to the dog]'. At 1.16 pm you texted 'Really I don't give a fuck about no money and I don't owe you nothing and fuck this fat dog I'm going to kill the [expletive]'.
12Ms McArdle went to your house on the afternoon of 21 December to speak to you about the dog. Whilst you and she were together, she transferred $2,000 to secure the return of the dog. You spoke to the two co-accused and told them to bring the dog to your house.
13You and the two co-accused then went to an ATM and withdrew $2,000. They returned to your home address with you and the dog and it was handed over to McArdle.
14At the time of this offending, you were on bail for possession of methamphetamine.
15On 23 December 2021 police attended and searched your property. They found cartridge ammunition. You were not licenced to hold that ammunition. You were arrested by police and interviewed. You admitted knowing the co-accused but you denied the offending.
16You spent two days in custody before being released on bail. You have not committed any further offences. I remanded you in custody at the end of the plea hearing and I will reckon your pre-sentence detention of four days not counting today, as already served on your sentence.
17I turn now to a consideration of the objective gravity of and your moral culpability for this offending.
Objective gravity and moral culpability
18The objective seriousness of the offence of blackmail is marked by the maximum penalty of 15 years' imprisonment. By this alone, Parliament has intended that the offence is viewed as a serious one.
19In this case, your offending involves the removal, that is the theft of a pet dog, and a threat to kill the dog unless your demand was met. In this way, you held all the cards. The animal was in your possession and that of the Espagne brothers so, whether you actually intended it or not, and I was told on your plea that you were not intending to harm the dog, you had the power of the perception to make good on your threat.
20When Ms McArdle attended at Dalton Espagne's house to check on the condition of the dog, it was made apparent to her that she did not have the power or the means to take the dog back unless the money was paid. This is the only conclusion that can be drawn from the threat of violence made to Ms McArdle by Hayden Espagne. I do not use this threat to aggravate the circumstances of your offending, but simply to make it clear what I meant when I said before that you held all the cards. Ms McArdle believed that she could not secure the release of the dog without paying the money you demanded.
21The fact that a large sum of money was paid to you enforces the objective seriousness of your offending. Moreover, you were not only paid but you withdrew the cash before you returned the dog.
22Your moral culpability is high. You made a number of calculated moves to prey upon Ms McArdle's emotional sensitivity and, in the commission of the offending at least these paid off. You demanded $2,000 and you got it.
23Moreover, this offending played out over a number of hours. You took the dog at about 3.00 am, you texted your demands for the money, you met with Ms McArdle just after 2.30 pm, and you rang and coordinated with the Espagne's to bring the dog with them, you withdrew the money from the ATM and you finally returned the dog. Your crime smacks of calculation and deliberation. It was not a hot-headed, spur of the moment reaction to a situation but one of calculation and coordination.
24On the plea made on your behalf, Mr Penno submitted that you were more of a follower than a leader or a core participant with the Espagne brothers. Moreover, it was implied that the $2,000 you received was passed to or taken by the co-accused. However, there is no evidence or material in the depositions to support these submissions.
25I sentence you on your actions; taking account that, notwithstanding the denials to the police, your plea of guilty and acknowledgement of your wrongdoing was readily made at the earliest opportunity.
26Although I consider there are more serious instances of blackmail which come before the court, this remains a serious example. Your moral culpability is high. Your crime must be met by principles of general and specific deterrence, denunciation and protection of the community. To that I refer to the case of Latorres.[1]
[1] Latorre v The Queen [2012] VSCA 280; 226 A Crim R 319.
Background and Personal Circumstances
27I turn now to your background and personal circumstances.
28You are 47 years of age and you were born in June 1975.
29You had an uncommitted father who came and went from your life. Your father passed away about five years ago.
30You have two brothers and one sister. Your mother and brother have supported you in through these proceedings.
31You had a reasonable relationship with your mother's new partner, who also passed away about 12 months ago.
32You attended Benalla High School until Year 11. Upon leaving school, you worked in a sheepskin factory, and later in an abattoir as a labourer.
33You had a serious relationship with Tara Dowe and the two of you in 2007 moved to Queensland. Whilst you worked in a factory up there, you suffered a serious back injury, including bulging disks, and nerve damage.
34You have had two close friends who have passed away in the last few years. The deaths of your friends, your father, and your stepfather have all affected you greatly.
35You have also attempted to commit suicide on a number of occasions. You believe you suffer from depression, although it has never been diagnosed and you have never received psychological support.
36You currently do not have a driver's licence so your ability to work has been curtailed by that and your back injury. Recently, you have been working with friends constructing sheds, but it appears that work has dried up with the onset of winter.
37Your counsel described your drug use as intermittent, dictated mainly by low points in your life. You acknowledge that you need professional help for your mental health and your drug issues. This has been enforced by the assessment made by the Community Corrections Officer.
38You acknowledged your criminal record. Amongst others, you have convictions for recklessly causing injury and riotous behaviour. All your matters have been dealt with at first instance in the Magistrates' Court. Whatever relevance your prior convictions may have had has been reduced by the fact that these two main convictions are now 20 years old.
39Mr Penno originally submitted that I should sentence you to a Community Corrections Order. Mr Pirrie who appears for the Crown submitted that your offending was serious and should be met by a combination sentence of imprisonment and a Community Corrections Order.
40I had you assessed for a Community Corrections Order. The assessment has, using the risk tool, concluded that you are suitable for a Community Corrections Order, but notes that your risk of re-offending is high. As a consequence it is considered that you need to undertake programs in relation to drug offending treatment and rehabilitation, your mental health and programs to reduce the likelihood of you reoffending, together with a period of supervision.
41You will remember Mr Armstrong, that I also asked whether a medical treatment condition was required, the assessing officer has said that in his conclusion your medical condition is adequately treated, and so I will not make that order.
42I told your counsel that although I considered a combination sentence of imprisonment with the Community Corrections Order appropriate in this case, I would recognise the fact that you were the first of the three accused to acknowledge your guilt and, as I said, you readily entered a plea of guilty at the earliest time.
43You told your counsel that after the dog was taken, all you wanted to do was ensure its return. I am not sure that your actions on 21 December 2021 bear this out, but I am prepared to accept that you are now remorseful for what you did. Your plea and remorse must be given mitigating weight in the sentencing process.
44I recognise that this is your first time serving a sentence and that you have gone into custody during a heightened wave of the COVID pandemic. The pandemic affects the ability of family and friends to visit you, your ability to work and to undertake courses. It also affects your ability to move around prison and it puts you in close quarters with other prisoners. This heightens the fear of the spread of the virus. The close nature of people in prisons has led to the use of isolation as a strategy. This can present its own problems; especially for first time prisoners. The law says I ought, and I do, take into account your reception into prison during the pandemic.
45Mr Armstrong, as I say, I do intend to sentence you to a short term of imprisonment but on your release, it is my intention that you undertake a Community Corrections Order for a period of 12 months. Now I understand from the Corrections report that you are already on a Community Corrections Order, is that right? There was one imposed in May. All right, so you understand the general conditions, but I still have to read to you, to make sure that you understand them. And if you understand them and the specific conditions that I have read to you, I am going to ask you if you consent to the making of an order.
46So the first is that you must not commit whether in Victoria or outside Victoria during the period of the offence, an offence punishable by imprisonment, and you would be aware that almost everything is an offence punishable by imprisonment. Do you understand that? Thank you.
47The second is you must comply with any obligation or requirement prescribed by the law in relation to a Community Corrections Order. You understand that?
48Third, you must report to and receive visits from the Office of Corrections during the period of the order, do you understand that? Yes, thanks.
49You must report to the Community Corrections Office within two clear working days after your release from prison, do you understand that? Yes.
50You must notify the Office of Corrections of any change of address or employment within two clear working days after the change, and you must not leave Victoria except with the permission generally or in relation to a particular case of the Office of Corrections.
51So, if you go back into your shed building, then you will need to notify the Office of Corrections, your Corrections Officer who will be assigned to you, if you are doing some work over the border, things like that, all right?
52You must comply with any directions given to you by the Office of Corrections, those directions may be given to you verbally or in writing, do you understand those conditions.
53All right, Mr Armstrong you can breach the Community Corrections Order in two ways. First, you can breach it by not complying with the conditions of the order, or secondly, by committing further offences. If you breach the order, either by non-compliance or by committing further offences, you understand that you will be brought back before me, for resentencing on the original charges, that is the theft and blackmail and for the breach of the order, do you understand that?
54All right. Mr Armstrong, if you understand the nature of the order are you prepared for me to make an order for a further Community Corrections Order in this case? Thank you.
55Mr Armstrong, the period of imprisonment that I am about to impose has been considerably reduced. I have the power on a combination sentence to impose a sentence of up to 12 months' imprisonment, but I have considerably reduced that to take account of the fact that you have pleaded guilty at the very earliest opportunity. You wasted no time in admitting your guilt and getting on with this matter, notwithstanding you did not in your record of interview. And for the fact that this is really in effect your first sentence of imprisonment, and that you are doing it in COVID times. I understand it is going to be difficult for the next few months but as I say I have considerably reduced the period of imprisonment to take account of the fact that you really have been very cooperative.
56The sentence that I am going to impose with the Community Corrections Order is an aggregate sentence of four months' imprisonment. If I was asked how that is comprised, I would say on the charge of theft, I would convict and sentence you to two months' imprisonment. On the blackmail, four months' imprisonment. On the charge of committing an indictable offence whilst on bail one month imprisonment. On the charge of possessing cartridge ammunition you are convicted and fined the sum of $300.
57The sentence of four months' imprisonment is combined with a Community Corrections Order for 12 months which commences on the date of your release from prison. Do you understand the order that I have made Mr Armstrong?
58PSD taken into account, four days, not including today.
59Section 6AAA, but for the plea of guilty I would have sentenced you to a period of, all things being equal on the offending 15 months with nine months to serve and there would have been the same fine on the cartridge ammunition.
60Any other orders sought, Mr Pirrie?
61
MR PIRRIE: No, Your Honour. I've got the - sorry, the restitution order
Your Honour.
62HIS HONOUR: The restitution order, for $2,000 is made. All right if there's nothing else I'll leave you to speak to your client. Thank you for your attendance both the other day and today.
63MR PIRRIE: Thank you, Your Honour.
- - -
0