R v Armstrong - [2016] QCA 243

SUPREME COURT OF QUEENSLAND

CITATION:

R v Armstrong [2016] QCA 243

PARTIES:

R
v
ARMSTRONG, Gary Collyer
(applicant)

FILE NO/S:

CA No 263 of 2015
DC No 1503 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 2 October 2015

DELIVERED ON:

27 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2016

JUDGES:

Fraser and Philip McMurdo JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant leave to appeal against the sentence imposed on 2 October 2015.

2.   Allow the appeal and set aside the orders made.

3.   Order that the appellant be sentenced upon count 1 on the indictment to a term of imprisonment of five and a half years with a parole eligibility date of 2 August 2017.

4. Declare that that sentence has been reduced pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) for the reason that the appellant has undertaken to cooperate with law enforcement agencies in other proceedings and that the sentence which would have been imposed, but for this reduction, would have been a term of seven and a half years with a parole eligibility date of 2 April 2018.

5.   For each of counts 2 and 3 upon the indictment the appellant be sentenced to a term of 16 months imprisonment with those sentences to be served concurrently with each other and to commence on 3 August 2017.

6.   On counts 2 and 3 the appellant be released after serving six months upon entering into a recognizance in the sum of $5,000 on condition that he be of good behaviour for a period of five years.

7.   Declare that the orders made in (5) and (6) are being reduced because the appellant has undertaken to cooperate with law enforcement agencies in proceedings relating to an offence and the sentences which would have been imposed but for that reduction are, upon each count, two years imprisonment to commence on 2 August 2017 with an order for release of the appellant after serving nine months upon entering into that same recognizance.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his pleas of guilty to one count of fraud under the Criminal Code (Qld) and two counts of insolvent trading under the Corporations Act 2001 (Cth) – where the applicant had entered a formal undertaking to give evidence in two other prosecutions – where the sentencing judge accepted that notwithstanding the significant amounts involved in each offence the applicant was not motivated by personal gain, but indicated that a head sentence of 10 years for the state offence appropriately reflected the applicant’s overall criminality – where, for the state offence, the sentencing judge sentenced the applicant to seven years imprisonment with parole eligibility after two years and four…

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 [2016] QCA 243
Case: [2016] QCA 243
Decision Date: 27 September 2016

CaseChat Overview and Summary

In the matter of R v Armstrong, the appellant contested the sentence imposed on 2 October 2015. Armstrong had pleaded guilty to one count of fraud under the Criminal Code (Qld) and two counts of insolvent trading under the Corporations Act 2001 (Cth). The sentencing judge accepted that, despite the significant sums involved in each offence, Armstrong was not driven by personal gain. However, the judge imposed a head sentence of 10 years for the state offence, reflecting Armstrong’s overall criminality. For the state offence, the judge sentenced Armstrong to seven years imprisonment with parole eligibility after two years and four months, indicating that but for Armstrong’s undertaking to cooperate in other prosecutions, he would have been sentenced to 10 years imprisonment with parole eligibility after four years. For the Commonwealth offences, the judge imposed concurrent terms of two years and eight months imprisonment and directed that Armstrong be released on a recognizance after 10 months.

The central legal issues in this appeal were whether the sentences imposed were manifestly excessive or inadequate, and whether there was an error in the effect of those sentences due to the timing of Armstrong’s release on a recognizance. The appeal also raised the question of whether the head sentence of 10 years for the state offence was excessive. Armstrong argued that the head sentence was manifestly excessive and that this affected any reduction given for his undertaking to cooperate with law enforcement agencies. The Court had to determine whether the sentences were manifestly excessive and whether any error in the effect of the sentences required correction.

The Court granted leave to appeal against the sentence, finding that the sentences were indeed manifestly excessive. The Court set aside the original orders and resentenced Armstrong. For the state offence, the Court reduced the sentence to five and a half years imprisonment with a parole eligibility date of 2 August 2017, acknowledging the reduction for Armstrong’s cooperation. The Court also reduced the sentences for the Commonwealth offences to 16 months imprisonment each, to be served concurrently, with Armstrong to be released after serving six months on a recognizance of $5,000, provided he behaved well for five years. The Court further reduced these sentences due to Armstrong’s cooperation, ordering that each offence carry a term of two years imprisonment, with release after serving nine months on a recognizance of $5,000.

Orders

Orders of the court

1. Grant leave to appeal against the sentence imposed on 2 October 2015.

2. Allow the appeal and set aside the orders made.

3. Order that the appellant be sentenced upon count 1 on the indictment to a term of imprisonment of five and a half years with a parole eligibility date of 2 August 2017.

4. Declare that that sentence has been reduced pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) for the reason that the appellant has undertaken to cooperate with law enforcement agencies in other proceedings and that the sentence which would have been imposed, but for this reduction, would have been a term of seven and a half years with a parole eligibility date of 2 April 2018.

5. For each of counts 2 and 3 upon the indictment the appellant be sentenced to a term of 16 months imprisonment with those sentences to be served concurrently with each other and to commence on 3 August 2017.

6. On counts 2 and 3 the appellant be released after serving six months upon entering into a recognizance in the sum of $5,000 on condition that he be of good behaviour for a period of five years.

7. Declare that the orders made in (5) and (6) are being reduced because the appellant has undertaken to cooperate with law enforcement agencies in proceedings relating to an offence and the sentences which would have been imposed but for that reduction are, upon each count, two years imprisonment to commence on 2 August 2017 with an order for release of the appellant after serving nine months upon entering into that same recognizance.

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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CITATION:	R v Armstrong [2016] QCA 243
PARTIES:	R v ARMSTRONG, Gary Collyer (applicant)
FILE NO/S:	CA No 263 of 2015 DC No 1503 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 2 October 2015
DELIVERED ON:	27 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	11 August 2016
JUDGES:	Fraser and Philip McMurdo JJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal against the sentence imposed on 2 October 2015. 2. Allow the appeal and set aside the orders made. 3. Order that the appellant be sentenced upon count 1 on the indictment to a term of imprisonment of five and a half years with a parole eligibility date of 2 August 2017. 4. Declare that that sentence has been reduced pursuant to s 13A of the *Penalties and Sentences Act* 1992 (Qld) for the reason that the appellant has undertaken to cooperate with law enforcement agencies in other proceedings and that the sentence which would have been imposed, but for this reduction, would have been a term of seven and a half years with a parole eligibility date of 2 April 2018. 5. For each of counts 2 and 3 upon the indictment the appellant be sentenced to a term of 16 months imprisonment with those sentences to be served concurrently with each other and to commence on 3 August 2017. 6. On counts 2 and 3 the appellant be released after serving six months upon entering into a recognizance in the sum of $5,000 on condition that he be of good behaviour for a period of five years. 7. Declare that the orders made in (5) and (6) are being reduced because the appellant has undertaken to cooperate with law enforcement agencies in proceedings relating to an offence and the sentences which would have been imposed but for that reduction are, upon each count, two years imprisonment to commence on 2 August 2017 with an order for release of the appellant after serving nine months upon entering into that same recognizance.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his pleas of guilty to one count of fraud under the Criminal Code (Qld) and two counts of insolvent trading under the Corporations Act 2001 (Cth) – where the applicant had entered a formal undertaking to give evidence in two other prosecutions – where the sentencing judge accepted that notwithstanding the significant amounts involved in each offence the applicant was not motivated by personal gain, but indicated that a head sentence of 10 years for the state offence appropriately reflected the applicant’s overall criminality – where, for the state offence, the sentencing judge sentenced the applicant to seven years imprisonment with parole eligibility after two years and four…