R v Armstrong - [2001] NSWCCA 77

CITATION: R v ARMSTRONG [2001] NSWCCA 77

FILE NUMBER(S): CCA 60236/00

HEARING DATE(S): 19/03/2001

JUDGMENT DATE:
19 March 2001

PARTIES :

REGINA v Angela ARMSTRONG

JUDGMENT OF: Studdert J at 27; Barr J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0080

LOWER COURT JUDICIAL
OFFICER : Sides QC DCJ

COUNSEL : Crown: P Hock
Applicant: P Kintominas/Moschoudis

SOLICITORS: Crown: SE O'Connor
Applicant: Doherty Partners

CASES CITED:
R v Jason Diamond, Court of Criminal Appeal, 18.2.93 unrep
R v Doan [2000] NSWCCA 317
R v Maslen and Shaw (1995) 79 A Crim R 199
R v Tisalandis (1982) 2 NSWLR 430

DECISION: Leave to appeal granted; Appeal dismissed

60236/00

STUDDERT J
BARR J

REGINA v Angela ARMSTRONG

JUDGMENT

1 STUDDERT J: I would ask Mr Justice Barr to give the first judgment.

2 BARR J: Angela Armstrong seeks leave to appeal against a sentence imposed upon her by Sides QC DCJ in the District Court for the offence that between 1 April and 30 May 1999 the applicant supplied a prohibited drug, namely, cocaine. His Honour sentenced her to imprisonment for three years, the sentence comprising a minimum term of one year six months and an additional term of one year six months.

3 The applicant was twenty-three years old and was living in Kings Cross and working there as a disc jockey. During the course of her work she was offered work as a street seller of cocaine but refused the offer. Then she lost her job. There was no-one whom she was prepared to ask to assist her so that she could continue to pay her rent, which was high, and her other living expenses. She could not immediately find other suitable employment. She therefore decided, rather than moving to cheaper premises elsewhere, to support herself by distributing cocaine.

4 The organisation distributing the drug did so by engaging a number of runners. The runners would collect from the person organising their activities one or more capsules, each containing 0.2 grams of cocaine. They would take the drug on to the streets and sell it for a price exceeding $50. They would return $50 per capsule to the supplier and keep the difference. The supplier or organiser and each runner would communicate by telephone. There were several such runners and the applicant was one of them. She took up her duties in April 1999 and ceased when the organisation was broken up in a police raid on 4 June 1999.

5 His Honour found that initially the applicant was selling five capsules per day on five days per week, but that during May her activities tapered off.

6 The evidence was not capable of proving precisely how much cocaine the applicant had supplied but, as his Honour observed, she was lucky not to have been charged with the offence of supplying prohibited drugs on an ongoing basis, the criterion for which was the supply of a prohibited drug on three or more separate occasions…

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 [2001] NSWCCA 77
Case: [2001] NSWCCA 77
Decision Date: 19 March 2001

CaseChat Overview and Summary

Angela Armstrong applied for leave to appeal against the sentence imposed upon her by Sides QC DCJ in the District Court for the offence of supplying a prohibited drug, namely, cocaine, between 1 April and 30 May 1999. Sides DCJ sentenced Armstrong to imprisonment for three years, comprising a minimum term of one year six months and an additional term of one year six months. Armstrong had been a street seller of cocaine, one of several runners for an organisation that distributed the drug. Armstrong’s activities tapered off in May 1999, and she ceased her involvement in the organisation when it was broken up in a police raid on 4 June 1999. Armstrong made a complete confession to the police immediately after her arrest, and pleaded guilty at the earliest opportunity before the Local Court. The District Court judge was informed that a number of the other runners had been dealt with in the courts, including a man called Bruton, who had been sentenced by a magistrate for a number of offences, including two of supplying a prohibited drug. The magistrate acknowledged that Bruton had given assistance to the authorities, and reduced his sentence to twelve months periodic detention.

The central legal issue was whether the sentence imposed on Armstrong was proportionate to the sentence imposed on Bruton, given the assistance he provided to the authorities. The Court had to determine whether the discrepancy between the sentences warranted a reduction of Armstrong’s sentence. The Court also had to consider the principles of parity of sentencing and the discretion available to the District Court judge in light of Bruton’s prior sentence.

The Court found that the District Court judge had an additional discretion due to Bruton having almost finished serving his sentence by the time he came before the Court for the second time. However, the Court held that the sentence imposed on Bruton was inadequate and should not be used to justify any reduction of Armstrong’s sentence. The Court concluded that the sentence passed by Sides DCJ was proper and would not reduce it. The Court granted leave to appeal but dismissed the appeal.

The final orders of the Court were that leave to appeal was granted but the appeal was dismissed. The sentence imposed on Armstrong by Sides DCJ was upheld.

Orders