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

1. 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.

1. 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.

1. 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.

1. The parties have now approached the Court to make submissions in the light of the appellant's successful appeal to this Court and the quashing of his conviction. There has in those circumstances arisen a potential gap or hiatus between the present custodial status of the appellant and the date of commencement of the other sentences imposed in anticipation of his continuing unexpired non-parole period of the sentence for the murder.

1. The parties have accordingly made a joint application, for consideration upon the papers, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 as follows:

"59 Court may vary commencement of sentence on quashing or varying other sentence

(1) A court that quashes or varies a sentence of imprisonment imposed on a person (on appeal or otherwise) may vary the date of commencement of any other sentence that has been imposed on that person by that or any other court.

(2) If a person is subject to two or more sentences, this section applies to each of them.

(3) A court may vary a sentence under this section on its own initiative or on the application of a party to the proceedings on the quashing or variation of the other sentence.

(4) An appeal does not lie merely because the date of commencement of a sentence is varied under this section.

(5) The term of a sentence, or the non-parole period of a sentence, cannot be varied under this section."

1. The parties have submitted that this Court should vary the commencement date of the sexual intercourse without consent offences so that they are 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.

1. It is clear that this Court is expressly not empowered to vary either the terms of these sentences or the respective non-parole periods: s 59(5). Even though this Court does have the power to intervene by imposing either a more or less severe sentence in substitution for a sentence in accordance with s 7(1) and (1A) of the Criminal Appeal Act 1912, that power is limited to sentences arising out of a count or part of the indictment "passed at the trial". It does not extend to re-determining sentences arising out of other or different proceedings.

1. It is not for this Court to speculate about the practical consequences that flow or that may flow from the orders made in this appeal on 20 May 2013. It is sufficient to observe, however, that there are different immediate and practical considerations that affect the appellant in his capacity as a prisoner on remand facing a new trial on the one hand, and those that apply to him as a prisoner serving a sentence on the other hand. The prompt ascertainment of his status is enough to warrant the making of the orders for which both parties now contend.

1. In these circumstances the orders of the Court are as follows:

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.

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