R v Armstrong

[2010] NSWSC 800

CITATION:	R v Armstrong [2010] NSWSC 800
HEARING DATE(S):	20 April 2010, 21 May 2010
JUDGMENT DATE :	12 August 2010
JUDGMENT OF:	Buddin J
DECISION:	For the murder of Felipe Flores, the offender is sentenced to a non-parole period of 11 years and 6 months imprisonment with a total term of 17 years imprisonment to date from 4 December 2008. The total term will expire on 3 December 2025 and the offender will be eligible for release on parole on 3 June 2020.
CATCHWORDS:	CRIMINAL LAW - sentencing - offender convicted of murder - offence committed in 1991 - need to consider sentencing patterns and practices at that time
LEGISLATION CITED:	Crimes (Life Sentences) Act 1989 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Sentence
CASES CITED:	MAH v R [2006] NSWCCA 226 R v FD & JD (2006) 160 A Crim R 392 R v MJR (2002) 54 NSWLR 368 R v Previtera (1997) 94 A Crim R 76 R v Todd [1982] 2 NSWLR 517
PARTIES:	Regina Paul Darcey Armstrong
FILE NUMBER(S):	SC 2009/63851
COUNSEL:	M Cunneen SC (Crown) A Haesler SC (Offender)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) (Crown) Legal Aid Commission of NSW (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

THURSDAY 12 AUGUST 2010

2009/63851 - REGINA v PAUL DARCEY ARMSTRONG

REMARKS ON SENTENCE

1 HIS HONOUR: Paul Darcey Armstrong (the offender) stands for sentence following his conviction by a jury of the murder of Felipe Flores on 2 September 1991. The maximum penalty for the offence is life imprisonment. As the offence was committed before the legislation providing for the fixing of standard non-parole periods was introduced, it follows that no standard non-parole period is applicable in this case.

2 It now falls to me to determine the factual basis upon which the offender stands to be sentenced. My task in that regard is made considerably easier because there is no real disagreement between the parties about that material.

3 The deceased’s body was located by a security guard, Mr Robert Small in the early hours of 2 September 1991. It was discovered in a deserted area behind an electricity sub-station which is just off Lincoln Crescent in Woolloomooloo. The deceased had been brutally beaten to death. Dr Schwartz, who conducted the post-mortem upon the deceased, concluded that his death was attributable to the multiple injuries which he had sustained and in particular those which had been inflicted to his vital organs such as his heart, lung, liver and spleen. The evidence demonstrated that his liver had been almost split in half and that his ribs had been broken. He had also suffered injuries to his genitals. Photographs taken of the deceased in the position in which he was found reveal the nature and extent of his injuries. He had bruising, abrasions and lacerations to his face and his nose had been broken. It is also clear that his face had been stomped on although it does not appear that a weapon was used in the fatal attack.

4 An initial investigation into the matter did not reveal any suspects. Curiously enough however, a person named Clifford Lee, made admissions to having killed a man at the relevant time in the general area of where the deceased’s body was discovered. Those admissions emerged from a lawfully intercepted conversation which he had had with an undercover police officer in the cells at Hornsby Police Station on 25 September 1991. Mr Lee gave evidence denying that he was the killer and maintained that he had made up the confession. The Crown case was that he was simply “big noting” himself. There were aspects of his account of the attack in which he had engaged which did not fit in with the otherwise established facts surrounding the manner in which the deceased had met his fate. Mr Lee was never charged with the deceased’s murder. Indeed, the police officer who was in charge of the initial investigation formed the view that Mr Lee had been describing the wrong location. Even though Mr Lee had a record for assaulting a number of his female partners and had a dislike for gay men, the jury obviously concluded that the Crown had excluded the reasonable possibility that he was the killer.

5 The deceased, who was aged 27 at the time of his death, came to Australia from Ecuador. He lived an openly gay lifestyle and as such, was in the habit of frequenting establishments in Oxford Street which provided entertainment for persons wishing to meet other gay men. A considerable body of evidence was called to explain his movements in the hours before his death and to demonstrate that he had not encountered the offender during that period of time. It is unnecessary to refer to that evidence in any great detail. Suffice it to say that during the evening of Sunday 1 September 1991 the deceased went with friends to various hotels on Oxford Street. They ended up at the Exchange Hotel arriving there at about 1 am the following morning. The deceased and his friends remained there for some hours although at one stage the deceased left to go across the road in order to access an ATM machine. The evidence establishes that the deceased was still at the Exchange Hotel at around 3 am. By the end of the evening, he had made the acquaintance of a very tall Australian man. It is common ground that that man was the offender, who is 6’7” in height. It was clear to his friends that the deceased was excited about having met the offender and that he intended to engage in sexual relations with him.

6 Although investigators retained the deceased’s fingernail clippings, it was not until 2008 that further forensic analysis enabled a match to be made between the offender’s DNA profile and the material which had been located on the deceased’s shirt and under his fingernails. By 2008 the offender had returned to live in Launceston, which is where he had spent his formative years. Police went to Launceston and interviewed him there on 4 December 2008. During that interview, which was electronically recorded, the offender was shown a photograph of the deceased. He denied knowing him or having met him. He did say however that at the time he was in the habit of having sex with gay men in establishments such as the Exchange Hotel. During the course of the trial the offender made a number of formal admissions. It included the following:

At the time (August/September 1991) I was a promiscuous homosexual. I regularly went to the gay-oriented bars or clubs around Oxford Street.
In 1991, I often picked up, or was picked up by, other gay men. I often had casual and anonymous sex with other gay men in toilets and dark places in bars and clubs around Oxford Street, including the Exchange Hotel. At the time I was regularly at the Sunday night gay evenings at the Exchange Hotel.
I have had explained to me the evidence of Ms Burger and Dr Bruce from the Department of Analytical Laboratories in relation to DNA matching. I accept that evidence, and I admit that the DNA found on Mr Flores’ fingernails and shirt came from my bodily fluids.

7 Following the interview, the offender was arrested and charged with the deceased’s murder. In due course, he was extradited to New South Wales. It is appropriate to date the sentence from 4 December 2008 being the date upon which the offender first went into custody.

8 Dr Bruce gave evidence about the DNA material which had been located. Although blood had been discovered under the deceased’s fingernails, Dr Bruce was unable to determine whether it emanated from the deceased or from the offender or indeed from both of them. Nor was he able to offer a definitive opinion as to the source of the DNA which belonged to the offender. He could not say, for example, whether it came from his blood, his semen, his saliva or even from his skin cells (although he regarded that possibility as much less likely).

9 As I have said, the deceased’s body was discovered in Woolloomooloo. It is difficult to be precise about the exact time of the discovery but it cannot have been any later than 3.30 am and it may well have been earlier than that. Mr Small gave evidence that at about that time he saw a man leaving the area of Lincoln Crescent in an old model creamy or white coloured Holden station wagon with its headlights off. He described the rear driver’s door of the vehicle as being of a “red pinkish primer colour”. The evidence established that the offender owned an old model white Holden station wagon at the time. It was in poor condition and had rust throughout it. The rear driver’s door was of a different colour, being either a different shade of white or cream. One of the previous owners of that car had used bog to fill in holes in the car caused by the rust. Although the bog filler was normally brown in colour, it was sometimes pink or grey. Mr Small described the man who was driving the vehicle as being approximately 5’6” to 5’8” in height. He made his observations from a distance of about 80 to 90 metres. The jury nevertheless clearly accepted the Crown’s contention that that man was the offender.

10 During the course of his record of interview with police, the offender denied that he had bought any vehicles whilst he was in Sydney. That was, of course, untrue. Notwithstanding the passage of time between 1991 and the date of the interview, the jury was entitled to conclude that the offender’s professed inability to recollect anything about the vehicle, a car which had caused him considerable trouble because it had attracted the attention of the police having accumulated a number of parking tickets, was difficult to accept. Nor would the manner in which the offender answered some of the questions asked of him by police in that interview have assisted his cause.

11 A critical witness in the Crown case was the offender’s then live-in male partner. By the time the partner came to give evidence, she had become Ms Jacinta Webber. Ms Webber gave evidence that the offender had come home one evening on an occasion, which she said was in September 1991, with a damaged shirt. She said that she had also observed that he had blood on his shirt and scratch marks both on his face and on his chest. According to Ms Webber, the offender told her that he had sustained the injuries when he had become involved in a fight with a patron at the place where he was then working as a barman. Ms Webber also gave evidence that shortly after that incident she was reading an article in the Sydney Star Observer newspaper. She said that it concerned a gay murder in the Woolloomooloo area. She said that when she had drawn it to the offender’s attention, he had replied that “he had hurt someone pretty badly in Wollooloomoo…but that when he’d left he said he was still alive”. The Crown case was that that aspect of her evidence was consistent with Mr Small’s evidence that when he had first seen the deceased, his eyes had still been moving. That observation suggested that he was then still alive.

12 A significant attack was made upon the credibility of Ms Webber particularly as it was not until September 2009 that she first told police of what she had observed about the offender and what she had been told by him. Furthermore, by her own admission, she was a recovering alcoholic. Moreover, objective evidence in the form of medical records from 1991 enabled Mr Haesler SC, who appeared for the offender, to submit that her reliability was significantly compromised. Nevertheless, particularly given the manner in which Ms Webber gave her evidence, it was well open to the jury to accept her evidence and I have little doubt that it did. Such failures as there were in her recollection were perfectly explicable given the passage of time since the fatal incident had occurred. Her evidence of having seen the scratch marks on the offender’s body was capable of being supported by the evidence that the offender’s DNA was under the deceased’s fingernails. Although of course no obligation was cast upon the offender to do so, the fact remains that nothing was suggested to Ms Webber which may have explained why she would have been prepared to falsely implicate the offender in this crime.

13 On 6 April 2009, the offender who was then in custody awaiting trial, spoke on the telephone to his father. The telephone conversation was lawfully intercepted. It was in the following terms:

Accused The lawyer came out and saw me last Tuesday
Peter Oh right
Peter Yeah so you have to wait until the 19 ^th June
Accused Yeah
Peter That’s a long way away
Accused Yeah about 10 weeks. The prosecutors are trying to get all their shit together apparently my lawyer already as a Q.C. barrister lined up. Apparently there is a partial DNA on this persons shirt 1 in 180 thousand – then apparently fairly common. But under the fingernails is 1 in 580 thousand.
Peter Oh.
Accused But they don’t know what type.
Peter Oh
Accused and previously there was 2 other suspects and they are both since deceased.
Peter Two more.
Accused Two other suspects they are both since deceased, passed on, dead.
Peter Oh so
Accused According to my lawyer the only thing they have is the DNA so my lawyer is going to check out what type it is, the validity of it how it was stored for the last 17 to 18 years.
Peter Oh right, yeah they might had nothing on you then mate.
Accused Yeah they probably want to strike up a bargain, like drop it from Murder down to Manslaughter.
Peter You are not having that are you.
Accused Well we have not plead anything yet, because we do not know the strength of the DNA.
Peter You wont plead guilty to nothing at the moment
Accused No
Peter No

14 The Crown case was essentially circumstantial in nature. There were a number of different strands to it. First, there was the evidence of the presence of the offender’s DNA upon the deceased. Secondly, there was the evidence of Mr Small concerning the vehicle which he had seen leaving the scene where the deceased was killed and its obvious similarity to the vehicle owned at the time by the offender. Thirdly, there was Ms Webber’s evidence and finally there was the evidence of the offender’s telephone conversation with his father.

15 The offender gave evidence denying that he had killed the deceased or that he had accompanied him to Woolloomooloo. The case advanced on his behalf was, as I suggested earlier, that although he did not recall having done so he must have had a sexual encounter with the deceased at the Exchange Hotel. Thereafter the deceased, who was in a vulnerable condition because of his blood alcohol reading of 0.124, must have been set upon by the real perpetrator or perpetrators. Those persons, it was suggested, were most likely to have been a group of men who were antagonistic to gay men and who obtained satisfaction from beating them up. The difficulty which the jury may well have had with that theory is that the window of opportunity for it to have occurred, that is between the last sighting of the deceased at the Exchange Hotel at about 3 am when he was clearly alive and the discovery of his body no more than 30 minutes later, was extremely narrow. No doubt the tight time-line, as well as the other evidence, persuaded the jury to reject the theory which was advanced on behalf of the offender.

16 Although the case was left to the jury upon the basis that a verdict of manslaughter by reason of unlawful and dangerous act was open on the evidence, that was never a realistic option. Indeed the case was conducted upon the basis, in view of the medical evidence, that the perpetrator had clearly had the requisite intention to render him guilty of the offence of murder.

17 The other basis upon which manslaughter was left to the jury was provocation. The evidence revealed that the deceased was carrying the HIV virus. A witness named Mr John Goosens gave evidence that he counselled the deceased very shortly before his death about the importance of engaging in safe sex and about the critical need to inform his sexual partners of his HIV status. Ms Webber gave evidence that the offender insisted that they undergo HIV tests before they commenced their relationship. The offender gave evidence in which he maintained that he was blasé about the risk of contracting the virus. The jury was undoubtedly sceptical of that claim particularly given, as the evidence revealed, the real anxiety which existed in the community in 1991 about the consequences of contracting it. At that stage, it was treated as being tantamount to a death sentence. Moreover, the Crown pointed to the offender’s reaction when he found out, on 14 February 1995, that he too had contracted the virus. He then used that date as part of his password for his computer. It was against that background that the Crown invited the jury to consider the real possibility that the offender had lost self-control and had proceeded, whilst in that state, to kill the deceased having ascertained during the course of a sexual encounter that the deceased had the HIV virus. The Crown had other material available to it, in the form of admissions allegedly made by the offender to police, which supported that theory. I nonetheless upheld an objection to the admissibility of that evidence. However, the jury clearly rejected the proposition that the offender had been provoked, and was no doubt assisted in its task by his denial in his sworn evidence that he had been.

18 I have received a victim impact statement from the deceased’s sister, Ines Flores to whom he was evidently very close. She said that the deceased was a devoted uncle to her children. The feelings which she has so eloquently and poignantly expressed and the grief which she and her family have suffered is entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of her statement. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226.

19 Tendered on behalf of the offender were two psychological reports. The first, which was dated 11 May 1994, was prepared by Ms Kathy Barrier and the second, which was dated 17 May 2010, was prepared by Ms Anita Duffy. The evidence reveals that the offender was born in Launceston in March 1963. He has five siblings. His mother, who is described as having an “indigenous background”, died in 2003 whilst his father still lives in Launceston. The offender’s early life appears to have been relatively uneventful and he left school at the age of 16. Although the offender discovered at a relatively early stage that he was bi-sexual, he nonetheless married at the age of 20. He has two children and five grandchildren to whom he is still close. Although he and his wife did not live together for very long, they still remain friends. The offender has, at various stages of his adult life, lived in Melbourne, Adelaide and Sydney. He has, as I understand the situation, been engaged in regular employment. He has worked in a variety of occupations including in the hospitality industry where he has been employed doing bar and nightclub security work. Prior to his arrest in respect of the present matter the offender was, as I have said, living and working in Launceston. As I understand it, he had returned there to live in order that he could be in close contact with his family.

20 Whilst on remand late last year, the offender was assaulted by other inmates. His left eye socket was fractured and he spent five days in hospital. He is reported to be still suffering blurred vision in his left eye. In February 2010 the offender fell out of the top bunk in the cell which he was then occupying and sustained further injuries to his neck, shoulders and back. He is still wearing a neck brace as a result of those injuries.

21 Ms Duffy observed in her report that the offender acknowledged that in the past “he had a quick temper and was very impatient and inclined to angry outbursts”. She went on to say however that he now “appears to have developed more controls over his expressions of aggression or anger”.

22 The offender has a criminal record both in this state and elsewhere. In NSW in 1990 he was dealt with for driving in a speed dangerous to the public and in 1994 for a PCA offence. In the same year he was sentenced to 18 months periodic detention for supplying a prohibited drug. He was subsequently sentenced to a minimum term of 60 weeks with an additional term of 20 weeks when he breached the periodic detention order. In 1989 in Victoria he received a suspended term of imprisonment for a number of offences of obtaining property by deception. He first came to notice in his native Tasmania in 1973 when at the age of 10 he was placed under the supervision of the Child Welfare Department in respect of offences of burglary and stealing. In 1985 he received a suspended sentence of imprisonment in respect of 54 counts of obtaining goods by false pretences. Later the same year he was placed on probation in respect of 2 counts of burglary and 2 counts of stealing. In the Supreme Court later in that year he received a suspended term of imprisonment in respect of 20 counts of defilement. I was informed that the offender was then aged 21 whilst the complainant was aged 13. In 1999 he received a $750 fine for 8 counts of knowingly presenting a false document. In April 2003 he received a sentence of 15 months imprisonment with a non-parole period of 8 months in respect of an offence of maintaining sexual relations with a person under the age of 17. A further term of 15 months imprisonment with a non-parole of 10 months to be served cumulatively upon the earlier sentence was imposed upon him for an aggravated robbery offence. In October that year the offender was sentenced to imprisonment for 1 month in respect of 10 counts of making a false statement.

23 A report from Justice Health prepared by Dr Stephen Hampton was tendered. It indicates that the offender is “generally in good health”. The report continues:

[The offender’s] main concern is that of HIV infection. He was diagnosed in 1995 and started on Anti-Retroviral Treatment in 1997. He stopped 6 months later due to ongoing problems with side effects. Since that time he has been treated with a number of regimes and he ceased treatment in April 2008 due to the cost of medications.
He entered custody in December 2008 and was seen by the population health nurse soon after. He was referred to the immunologist whom he saw in January 2009. He was commenced on the anti-viral therapy; Kivexa (abacavir sulphate with lamivudine), atazanavir and ritonavir. He was also treated with prophylactic treatment against infections; bactrim and azithromycin. He remains on this management regime.
It is anticipated that he will continue on this treatment at the moment but medication regimes are continually evolving and his medication will continue to be adjusted according to current practices by treating immunologists.
Opinion was sought from the treating infectious diseases specialist in regard to prognosis. Mr Armstrong has an undetectable viral load but has never achieved full immune reconstitution and as such experiences a degree of immunosuppression. Current research suggests that those patients who have access to full modem treatment should have a near normal life expectancy. Mr Armstrong has not fully reconstituted immunologically so is at risk of AIDS events such as infections and cancers and may have some shortening of life expectancy (perhaps in the order of 5 years). However, his life expectancy is still in the order of decades. There have been significant improves (sic) in outcomes of HIV infected patients in recent years and predicting future outcomes is difficult.
Should his condition deteriorate Mr Armstrong would continue to be managed by visiting immunologists and staff doctors. He could be treated in the medical-surgical unit of the Long Bay Hospital and if required there is access to specialised services at the Prince of Wales Hospital.

24 In approaching the task of sentencing the offender, I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act). I must also pay due regard to the various aggravating and mitigating factors identified in s 21A of the Act which have particular relevance to the case.

25 The starting point for any assessment of the objective gravity of the offence, as Mr Haesler candidly acknowledged, is the fact that a human life has been needlessly taken. As I have said, there is no evidence that a weapon was used in the fatal attack. It is nonetheless apparent from the injuries which he suffered that the deceased was subjected to a savage and sustained beating. Although I do not think that it makes a great deal of difference in the circumstances of the present case, I am not inclined to conclude that the offender acted with an intention to kill. Mercifully, it would appear that Felipe Flores died almost immediately following the attack upon him.

26 That said, there is no evidence of premeditation. On the contrary, the evidence suggests that the offender acted spontaneously. Indeed it appears to be common ground, as Mr Haesler submitted, that some allowance, albeit modest, should be made for the fact that the offender in all likelihood reacted as he did after having lost his self-control following a disclosure by the deceased during the course of their sexual encounter that he had the HIV virus. Furthermore, it seems likely that the deceased and the offender went to Woolloomooloo for the purpose of having a sexual encounter.

27 I also accept the fact that the offender faces a somewhat uncertain future because of his HIV status. Furthermore, it is quite possible that the stresses associated with serving a lengthy sentence may well increase the risk that his condition will further deteriorate. Accordingly, I am prepared to find that the circumstances under which the offender will serve his sentence are likely to be somewhat more burdensome that might otherwise be the case, especially given the physical injuries from which he is also suffering.

28 The fact that the offence was committed nearly 20 years ago gives rise to two further sentencing considerations. First, there is the question of the delay which has occurred in bringing these proceedings to finality. I accept that, as a consequence, an appropriate measure of understanding and flexibility is called for: R v Todd [1982] 2 NSWLR 517 at 519. Secondly, it is plainly apparent that the sentencing regime that now exists would expose the offender to a decidedly more severe penalty than the one which prevailed at the time of the offence. However, it is common ground that I must sentence the offender in accordance with sentencing practices and patterns which prevailed at the time the offence was committed: see R v MJR (2002) 54 NSWLR 368. Although caution must be exercised in relying upon statistical material, I have nonetheless derived considerable assistance from the Judicial Commission’s report entitled “Sentenced Homicides in New South Wales 1990-1993”. I have had regard only to the sentences imposed upon the offenders to whom s 19A of the Crimes (Life Sentences) Act 1989, which was inserted on 12 January 1990, applied. 93 such offenders were sentenced in the period covered by the study. 43% of those offenders received a minimum term greater than 8 years but not exceeding 12 years, whilst 35.5% of offenders received a minimum term greater than 12 years but not exceeding 16 years. 64.5% of offenders received a full term greater than 14 years and up to 20 years. The authors of the monograph conclude that “the typical sentence for murder under s 19A might be described as a minimum term of 12 years and an additional term of 6 years, making a total sentence of 18 years”. In so concluding, it would appear that the authors made no differentiation between those offenders who pleaded guilty and those who did not.

29 I referred earlier to the offender’s criminal record. It contains some entries for matters which the offender committed prior to the present one. They merely operate to deprive him of the type of leniency that might otherwise be afforded to him. On the other hand, his antecedents since 1991 do him no credit at all. Nor do they suggest that he has demonstrated any basis for the contention that he has good prospects of rehabilitation. Nevertheless, particularly bearing in mind Ms Duffy’s observation which indicates a change in the offender’s attitude towards controlling his temper and the age which he will have reached by the time he is eventually released on parole, I would not regard his prospects as having completely evaporated.

30 The material contained in the Judicial Commission monograph reveals that the relationship which the minimum term or non-parole period bore to the head sentence during the relevant time period was usually less than the normal statutory proportion of 75% which now exists. The parties agreed that that consideration provides a sufficient basis for making a finding of “special circumstances”. Nevertheless in setting the non-parole period, I have borne in mind the need to fix the minimum period which the offender must spend in custody.

Sentence

31 For the murder of Felipe Flores, the offender is sentenced to a non-parole period of 11 years and 6 months imprisonment with a total term of 17 years imprisonment to date from 4 December 2008. The total term will expire on 3 December 2025 and the offender will be eligible for release on parole on 3 June 2020.

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