R (Cth) v Armstrong - [2023] NSWDC 563

District Court

New South Wales

Medium Neutral Citation: R (Cth) v ARMSTRONG [2023] NSWDC 563
Hearing dates: 4 December 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Appeal upheld to the extent that the sentence date is backdated to take into account on the issues of parity and the commencement date of the sentence and non-parole period
Sentenced – see paragraphs [125]-[131]

Catchwords:
CRIME – dishonestly obtain financial advantage – fraud and attempt on the Commonwealth – submit false information on business activity statement to obtain GST refund
CRIME – appeal – knowingly take part in the supply of prohibited drug – methyl amphetamine
SENTENCE – subjective features – unenviable criminal record – PTSD, major depressive disorder and substance abuse as causal connection - selling drugs to support own habit

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act, 1999
Drug Misuse and Trafficking Act 1985
Mental Health and Cognitive Impairment Forensic Provisions Act, 2020

Cases Cited:
Acosta v R [2015] VSCA 94
Bugmy v The Queen [2013] HCA 37
DPP (Cth) v Beattie (2017) 270 A Crim R 556
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Health Care Complaints Committee v Johnson [2023] NSWCATOD 165
Hili & Jones v The Queen (2010) 204 A Crim R 434
Moiler v R [2021] NSWCCA 73
Parente v R (2017) 270 A Crim R 412
Rasel v R [2022] NSWCCA 239
Sabra v R [2015] NSWCCA 38
Park v The Queen [2021] HCA 37
Greaves v R [2020] NSWCCA 140

Category: Sentence
Parties: Rex
Harley David ARMSTRONG
Representation:
Counsel:
Mr A Bellanto, KC
Solicitors:
Ms E Gordon, Office of the Director of Public Prosecutions (Commonwealth)
Mr Z Tankard, Tankards Law

File Number(s): 2022/351731, 2022/133084, 2022/351762
Publication restriction: No

Judgment

There are two sets of proceedings involving Harley David Armstrong. He appears for sentence in respect of two charges of fraud type offending and he appeals against what is asserted to be the severity of sentence imposed by a Magistrate at the Wagga Wagga Local Court in respect of a number of charges relating to the supply of prohibited drugs. The Commonwealth Director of Public Prosecutions appeared in both sets of proceedings, which were heard simultaneously at the Wagga Wagga District Court on 4 December 2023. For the sake of convenience, I will refer to the fraud matters as the sentence matter and the drug matters as the appeal matter.
In respect of the sentence matter the offender appeared before a Magistrate at the Wagga Wagga Local Court on 19 July 2023 and entered pleas of guilty to two charges, namely that (he):

(sequence 1) between 22 March 2022 and 5 April 2022 dishonestly obtained a financial advantage namely $64,092 from another person, namely the Commonwealth, contrary to s 134.2 of the Criminal Code, 1995 (Cth); and further

(sequence 3) between 9 April 2022 and 16 April 2022, attempted to dishonestly obtain a financial advantage, namely…

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 R (Cth) v Armstrong

Details

AGLC: R (Cth) v Armstrong [2023] NSWDC 563
Case: [2023] NSWDC 563
Decision Date: 15 December 2023

CaseChat Overview and Summary

In the case of R (Cth) v Armstrong, the respondent was found guilty of multiple counts of dishonestly obtaining a financial advantage by submitting false information on business activity statements to obtain GST refunds, as well as attempting to commit fraud against the Commonwealth. The respondent was also found guilty of knowingly participating in the supply of methyl amphetamine. The appeal was against the severity of the sentence imposed by the primary court. The central legal issue before the court was whether the sentence was excessive, taking into account the respondent's personal circumstances, including a history of PTSD, major depressive disorder, and substance abuse. The court was required to balance the gravity of the crimes with the respondent's personal circumstances to determine an appropriate sentence.

The court considered the nature and circumstances of the offences, emphasising the seriousness of defrauding the Commonwealth and trafficking in dangerous substances. However, the court also took into account the respondent's troubled background, including mental health issues and substance abuse, which were deemed to be significant factors in his criminal behaviour. The court examined whether these factors warranted a reduction in the sentence for the purposes of achieving parity with similarly situated offenders. The court concluded that while the offences were serious, the respondent's personal circumstances provided a compelling context that needed to be factored into the sentencing decision.

The court upheld the appeal in part, modifying the sentence to reflect considerations of parity and the commencement date of the sentence and non-parole period. The new sentence was detailed in the judgment, ensuring that the respondent's personal circumstances were appropriately reflected in the final punishment. The court's decision balanced the need for deterrence and denunciation with the principles of justice that require consideration of the individual offender's circumstances. This nuanced approach resulted in a sentence that was both reflective of the gravity of the crimes and considerate of the respondent's personal challenges.

Orders

Orders of the court

Appeal upheld to the extent that the sentence date is backdated to take into account on the issues of parity and the commencement date of the sentence and non-parole period

Sentenced – see paragraphs [125]-[131]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R (Cth) v ARMSTRONG [2023] NSWDC 563
Hearing dates:	4 December 2023
Date of orders:	15 December 2023
Decision date:	15 December 2023
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Appeal upheld to the extent that the sentence date is backdated to take into account on the issues of parity and the commencement date of the sentence and non-parole period Sentenced – see paragraphs [125]-[131]
Catchwords:	CRIME – dishonestly obtain financial advantage – fraud and attempt on the Commonwealth – submit false information on business activity statement to obtain GST refund CRIME – appeal – knowingly take part in the supply of prohibited drug – methyl amphetamine SENTENCE – subjective features – unenviable criminal record – PTSD, major depressive disorder and substance abuse as causal connection - selling drugs to support own habit
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act, 1999 Drug Misuse and Trafficking Act 1985 Mental Health and Cognitive Impairment Forensic Provisions Act, 2020
Cases Cited:	Acosta v R [2015] VSCA 94 Bugmy v The Queen [2013] HCA 37 DPP (Cth) v Beattie (2017) 270 A Crim R 556 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Health Care Complaints Committee v Johnson [2023] NSWCATOD 165 Hili & Jones v The Queen (2010) 204 A Crim R 434 Moiler v R [2021] NSWCCA 73 Parente v R (2017) 270 A Crim R 412 Rasel v R [2022] NSWCCA 239 Sabra v R [2015] NSWCCA 38 Park v The Queen [2021] HCA 37 Greaves v R [2020] NSWCCA 140
Category:	Sentence
Parties:	Rex Harley David ARMSTRONG
Representation:	Counsel: Mr A Bellanto, KC Solicitors: Ms E Gordon, Office of the Director of Public Prosecutions (Commonwealth) Mr Z Tankard, Tankards Law
File Number(s):	2022/351731, 2022/133084, 2022/351762
Publication restriction:	No