Paul Darcey Armstrong v The Queen - [2013] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Paul Darcey Armstrong v R [2013] NSWCCA 137
Hearing dates: 9 and 11 April 2013
Decision date: 11 June 2013
Before: Simpson J; Harrison J; Bellew J
Decision:
Vary the sentences imposed upon the appellant by her Honour Murrell DCJ on 13 August 2010 as follows:
1. Sexual intercourse without consent: imprisonment for a fixed term of 2 years and 6 months to commence on 4 December 2008 and to expire on 3 June 2011.
2. Sexual intercourse without consent: imprisonment for 4 years, 10 months and 17 days to commence on 4 December 2009 and to expire on 20 October 2014 with a non-parole period of 2 years, 10 months and 17 days to expire on 20 October 2012.

Catchwords: CRIMINAL LAW - appeal - sentence quashed - consequential orders pursuant to s 59 Crimes (Sentencing Procedure) Act - variation of commencement dates of remaining sentences
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Appeal Rules
Category: Consequential orders
Parties: Paul Darcey Armstrong (Appellant)
Crown (Respondent)
Representation: Counsel:
P Ingram SC (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/63851
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9111

Citation:

R v Armstrong [2010] NSWSC 800

Date of Decision:

2010-08-12 00:00:00

Before:

Buddin J and jury

File Number(s):

2009/63851

Judgment

THE COURT: This Court made orders in these proceedings on 20 May 2013: see [2013] NSWCCA 113. The appellant was then in custody serving a sentence following his conviction for murder that was the subject of his appeal to this Court. That sentence was one of 17 years commencing on 4 December 2008 expiring on 3 December 2025 with a non-parole period of 11 years and 6 months expiring on 3 June 2020.

The orders that were made by this Court on 20 May 2013 were as follows:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the conviction.

4. Order that there be a new trial.

Following his conviction and the imposition of his sentence for murder, the appellant was sentenced on 13 August 2010 by her Honour Murrell DCJ on two unrelated offences of sexual intercourse without consent. Those sentences were never the subject of any appeal. The sentences are due to commence on 7 June 2018 and the non-parole period expires on 22 April 2022. They are as follows:

1. Sexual intercourse without consent: imprisonment for a fixed term of 2 years and 6 months to commence on 7 June 2018 and to expire on 6 December 2020.

2. Sexual intercourse without consent: imprisonment for 4 years, 10 months and 17 days to commence on 6 June 2019 and to expire on 22 April 2024 with a non-parole period of 2 years, 10 months and 17 days to expire on 22 April 2022.

The parties have now approached the Court to make submissions in the light of the appellant's successful appeal to…

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

Case: [2013] NSWCCA 137
Decision Date: 11 June 2013

CaseChat Overview and Summary

The appellant, Paul Darcey Armstrong, was convicted and sentenced in the Supreme Court of New South Wales for various offences, including armed robbery and assault. The Crown appealed the sentence, contending it was manifestly inadequate. Armstrong cross-appealed, arguing that certain sentences should run consecutively rather than concurrently. The High Court was asked to review the sentence and address the appeal and cross-appeal.

The legal issues before the Court were whether the original sentence was manifestly inadequate and whether the sentences should run consecutively. The Court had to consider the principles of sentencing, including the need for general and specific deterrence, and the need to uphold the lawfulness of sentences. The Court also had to examine the appropriate use of consecutive versus concurrent sentences.

In its decision, the Court found that the sentence was manifestly inadequate. The Court reasoned that the sentence did not reflect the seriousness of the crimes and the need for general deterrence. As such, the Court quashed the sentence and remitted the matter to the Supreme Court for re-sentencing. The Court also found in favour of the Crown on the issue of consecutive sentences, stating that the crimes were serious and distinct enough to warrant consecutive sentences. The Court made consequential orders pursuant to section 59 of the Crimes (Sentencing Procedure) Act, varying the commencement dates of the remaining sentences.

The Court ordered that the sentences be re-imposed by the Supreme Court, with the sentences for the offences of armed robbery and assault to run consecutively, and the remaining sentences to run concurrently. The Court also varied the commencement dates of the remaining sentences to ensure that they commenced from the date of the original sentencing verdict.

Orders