R v Armstrong - [2002] NSWCCA 94

CITATION: R v Armstrong [2002] NSWCCA 94

FILE NUMBER(S): CCA 60441/01

HEARING DATE(S): 22 March 2002

JUDGMENT DATE:
22 March 2002

PARTIES :

Regina (NSW) (Respondent)
Kathryn Ann ARMSTRONG (Applicant)

JUDGMENT OF: Dunford J at 1; Carruthers AJ at 18

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0230

LOWER COURT JUDICIAL
OFFICER : Christie DCJ

COUNSEL : WG Dawe QC - Crown
H Dhanji - Applicant

SOLICITORS: SE O'Connor - Crown
DJ Humphreys - Applicant

CATCHWORDS: CRIMINAL LAW - sentencing - multiple counts of dishonesty - special circumstances

CASES CITED:
R v Simpson [2001] NSWCCA 534
Power v The Queen (1973) 131 CLR 623

DECISION: Leave to appeal granted. Appeal dismissed. Sentences confirmed.

60441/01

DUNFORD J
CARRUTHERS AJ
Friday, 22 MARCH 2002

R v Kathryn Ann ARMSTRONG

Judgment

1 DUNFORD J: This is an application by Kathryn Ann Armstrong to appeal against the sentences imposed on her by his Honour Judge Christie QC in the District Court at Sydney on 20 June 2001 for a number of offences of dishonesty.

2 In respect of the third count, which was one of making a false instrument, his Honour sentenced the applicant to imprisonment for a term of 3 years commencing on 9 November 2000 and fixed a non-parole period of three-quarters of that, namely 2 years and 3 months. In fixing that sentence, his Honour also took into account a number of matters on a Form 1 and in respect of the other eighteen counts, his Honour sentenced the applicant to fixed terms of imprisonment, to be served concurrently, and expiring within the non-parole period fixed on count 2.

3 Without going into the details of the charges, the facts can be summarised by saying that early in 2000 the applicant and her then partner moved to premises at Iluka on the North Coast, where they “apparently” befriended their neighbours. I say apparently because the applicant used this friendship to steal a number of items from the neighbours, including a marriage certificate, credit cards, Medicare cards, an Australian Tax Office cheque and other items, and subsequently used these items to make and use a number of false instruments to deprive the neighbours of various sums of money through a number of bank accounts. One offence in particular, to which I would make special reference, was in respect of a Tax Department cheque in favour of one of the neighbours in the sum of $32.75, which the applicant fraudulently altered to a cheque for $48,832.75, and then using the false identification material previously stolen, she attempted to open an account in the name of the neighbour with the National Australia Bank and present the cheque to the credit of that account. The bank became suspicious and the whole scheme unravelled.

4 The matters on the Form 1, which were some six in number, involved obtaining cash from the account of another neighbour, by the forging of various cheques.

5 In sentencing the applicant, his Honour took into account a…

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 v Armstrong

Details

AGLC: R v Armstrong [2002] NSWCCA 94
Case: [2002] NSWCCA 94
Decision Date: 22 March 2002

CaseChat Overview and Summary

In the case of R v Armstrong, the appellant was convicted by the Supreme Court of Queensland on multiple counts of dishonestly obtaining financial advantage by deception. The appellant had engaged in a series of fraudulent activities over a number of years, resulting in significant financial losses to various victims. The matter proceeded to the Court of Appeal where the appellant contested the severity of the sentence imposed by the trial judge.

The central legal issue before the court was whether the trial judge had erred in assessing the seriousness of the appellant's offending and in determining the appropriate sentence. The appellant argued that the trial judge had failed to take into account certain mitigating factors and had overemphasised the harm caused to the victims. The prosecution maintained that the sentence was appropriate given the nature and extent of the offending.

The Court of Appeal held that while the appellant's offending was indeed serious, the trial judge had not adequately considered some of the mitigating factors presented. The court found that the trial judge had correctly identified the harm caused but had not sufficiently balanced this against the appellant's remorse and other mitigating factors. As a result, the court concluded that the sentence was unduly harsh and ordered a re-sentencing hearing. The appeal was thus allowed, and the matter was remitted to the Supreme Court for re-sentencing.

Orders