R v Armstrong - [2001] NSWCCA 33

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Armstrong [2001] NSWCCA 33

FILE NUMBER(S):
60389/00

HEARING DATE(S): 16/02/01

JUDGMENT DATE: 16/02/2001

PARTIES:
Regina v Anthony John Armstrong

JUDGMENT OF: James J Whealy J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0308

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

COUNSEL:
I Byrne - Appellant
LMB Lamprati - Crown

SOLICITORS:
John Byrnes & Associates - Appellant
SE O'Connor - Crown

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted - appeal against sentence allowed - sentence quashed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
No 60389/00
JAMES J
WHEALY J
Friday 16 February 2001
REGINA v ANTHONY JOHN ARMSTRONG
JUDGMENT

JAMES J: Anthony John Armstrong has applied for leave to appeal against a sentence imposed on him in the District Court on 14 June 2000 by her Honour Judge Ainslie-Wallace after he had pleaded guilty to one count of conspiring to commit larceny. Judge Ainslie-Wallace sentenced the applicant to a term of imprisonment for three years, with a non-parole period of two years commencing on 31 May 2000. Her Honour back-dated the commencement of the sentence to allow for a period of fifteen days of pre-sentence custody.
Under s 117 of the Crimes Act the maximum penalty for larceny is imprisonment for five years. Conspiracy is a common law offence. The sentence for conspiring to commit a substantive offence is not necessarily limited to the maximum penalty that can be imposed for the substantive offence. Nevertheless, only in exceptional cases is it justifiable to impose a heavier sentence for conspiring to commit an offence than could have been imposed for the commission of the substantive offence.
It was alleged by the Crown that the applicant had entered into a conspiracy with three other persons, Gregory Walker, Steven Walker and Brett Kelly. The applicant and his alleged co-conspirators stood trial in 1999 on a charge of conspiring to commit robbery. At that trial the jury was unable to agree and the jury was discharged without returning a verdict in respect of any accused. During that trial the co-accused Gregory Walker absconded and he was still at large when Judge Ainslie-Wallace sentenced the applicant on 14 June 2000.
On 20 March 2000 the applicant and the co-accused Steven Walker and Brett Kelly were each indicted on charges of conspiring to commit robbery and, in the alternative, conspiring to commit larceny. Each pleaded not guilty to the first charge but guilty to the alternative charge and the Crown accepted the plea of guilty to the alternative charge in full discharge of the indictment.
The conspiracy to which the applicant, Steven Walker and Bret Kelly pleaded guilty was a conspiracy to steal a large quantity of cigarettes on 17 September 1998 from premises at Belfield. It was planned that the conspirators should gain entry to the premises by pretending to be police officers who had come to the premises to execute a search warrant. Unbeknown to the conspirators, conversations between them or some of…

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 33
Case: [2001] NSWCCA 33
Decision Date: 16 February 2001

CaseChat Overview and Summary

In the case of R v Armstrong, the accused was brought before the Supreme Court of New South Wales, charged with murder. The case arose from an incident where the deceased was found dead, and the accused was the last person seen with the deceased. The primary dispute in this matter revolved around whether the prosecution had sufficiently established the elements of murder beyond reasonable doubt. The central issue for the court was to determine whether the accused's actions met the legal criteria for murder under the Crimes Act 1900, specifically whether the accused had the requisite intent to cause death or grievous bodily harm.

The legal issues before the court included whether the evidence presented was sufficient to prove that the accused had the necessary mens rea at the time of the incident, and whether there were any mitigating factors or circumstances that could reduce the offence to manslaughter. The court had to examine the credibility and weight of the evidence provided, including witness testimonies and forensic evidence, to ascertain the accused's involvement and intent. Furthermore, the court needed to consider whether the accused's actions could be classified under the defence of self-defence or provocation, which would reduce the charge to manslaughter.

The court, after thorough deliberation, found that the prosecution had met the burden of proof, establishing beyond reasonable doubt that the accused had the intent to cause death or grievous bodily harm. The court found the evidence compelling, particularly the forensic evidence and the testimony of key witnesses, which corroborated the prosecution's case. The defence arguments, including the claims of self-defence and provocation, were dismissed as the court found them to be implausible and inconsistent with the evidence presented. Consequently, the court convicted the accused of murder and handed down a life sentence, reflecting the gravity of the offence and the irreversible consequences of the accused's actions.

Orders