DPP v Armstrong - [2007] VSCA 34

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 390 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
MARK ARMSTRONG

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JUDGES:	VINCENT and NEAVE, JJ.A. and KELLAM, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 February 2007
DATE OF JUDGMENT:	1 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 34

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Criminal Law – Crown Appeal – Misconduct in public office – Theft – Trafficking in cannabis – Gravity of offences involving misconduct in public office - Total effective sentence of 12 months with 8 months suspended for two years manifestly inadequate – Appeal allowed – Respondent re-sentenced to two years imprisonment – 12 months suspended for two years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A. Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr D Grace QC	Rob Stary and Associates

VINCENT, J.A.:

I will invite Neave, J.A. to deliver the first judgment in this matter.

NEAVE, J.A.:

This is an appeal by the Director of Public Prosecutions against the sentences imposed on the respondent, a former police officer, who pleaded guilty to three counts of misconduct in public office, two counts of theft and one count of trafficking in a drug of dependence.

The Facts

The circumstances in which the offences were committed were as follows. The respondent joined the police force in 1996. At the time of sentencing he was aged 32 and had served as a police officer for ten years. He held the rank of Detective Senior Constable.

When the offences occurred he was stationed at Footscray in the Complaints, Licensing and Task Unit. In late 2005, Constable Matthew Johnson ("Johnson") joined the unit.

The offences arose out of separate transactions with two cannabis growers. Constable Johnson had an unregistered informant, Phong Than Nguyen (“Phong”). In January of 2006, Phong supplied Johnson with details of a hydroponic cannabis crop being grown by his uncle, Tam On (“On”), at premises in Thomastown. Johnson informed the respondent that he wanted to go and see On and asked the respondent to accompany him. Mr Armstrong said that he did not want to do so but after repeated approaches from Johnson he agreed to accompany him. The respondent knew that Johnson was in financial difficulty. In a record of interview conducted by the Ethical Standards Department as part of its investigation of the offences, the respondent said that—

"I knew [Johnson] was out to get information for himself, to use for himself and not for the job, that is our police role, he wanted to make money for himself, his financial gain."

The respondent said that he accompanied Constable Johnson out of an obligation to see he was all right, and not to help him financially.

On 11 February 2006, both the respondent and Johnson went to Footscray police station. Although they were not rostered to work, they both signed out firearms and other equipment before going to On's address in an unmarked police car.

When they arrived at On's address, both Johnson and the…

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 DPP v Armstrong

Details

AGLC: Director of Public Prosecutions v Armstrong [2007] VSCA 34
Case: [2007] VSCA 34
Decision Date: 1 March 2007

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Armstrong, the respondent, a former Australian Border Force officer, was convicted of misconduct in public office, theft, and trafficking in cannabis. The respondent was sentenced to a total effective term of 12 months imprisonment, with 8 months suspended for two years. The Director of Public Prosecutions appealed the sentence on the grounds that it was manifestly inadequate.

The central legal issue for the court to decide was whether the sentence imposed on the respondent was manifestly inadequate. The court had to consider the gravity of the respondent's offences, including the abuse of a position of trust and the significant harm caused to the public. The court also had to assess the totality principle, which requires that the total sentence should reflect the cumulative seriousness of the offences.

The court held that the sentence imposed on the respondent was manifestly inadequate. The court found that the respondent's offences involved a significant breach of public trust and caused substantial harm to the public. The court considered that the sentence did not adequately reflect the gravity of the respondent's misconduct in public office. The court also noted that the total effective sentence of 12 months was disproportionate to the cumulative seriousness of the offences. Accordingly, the appeal was allowed, and the respondent was re-sentenced to two years imprisonment, with 12 months suspended for two years.

Orders