Legal Research
Cases
R v Armstrong

R v Armstrong

Case [2014] VSC 256 2 June 2014

Incitement to commit intentionally causing injury

Recklessly causing serious injury

Manslaughter (by criminal negligence)

Accessory after the fact to recklessly causing serious injury

Plea of guilty

Remorse

Prospects of rehabilitation

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL LAW DIVISION
No. 0159, 0160, 0161, 0163 & 172 of 2013
Between:

THE QUEEN

and

ALAN ARMSTRONG,
TYSON JOHN HAVER,
MICHAEL SCOTT WALD &
ADALIA OTTOBRE
Accused
---

JUDGE:

CROUCHER J

WHERE HELD:

Melbourne

DATE OF HEARING:

28-30 April 2014

DATE OF SENTENCE:

2 June 2014

CASE MAY BE CITED AS:

R v Armstrong & Ors

MEDIUM NEUTRAL CITATION:

[2014] VSC 256

First revision: 3 June 2014

Second revision: 3 June 2014

Third revision: 23 June 2014

---

CRIMINAL LAW – Sentence – Animosity between AA and SD – AA incited his adult son to go with others to bash SD and to take a weapon – Son recruited friends TH and MW – Son, TH and MW went to SD’s house at night with baseball bat and loaded double-barrel shotgun – Son assaulted SD with baseball bat, causing serious injury – During assault, son called for gun – Unclear which of TH or MW produced gun – Gun discharged, twice, striking son in chest – Accidental discharge could not be excluded – Son died – AO provided false alibi for her partner TH and lied about whereabouts of missing gun – AO possessed unregistered guns.
AA: Incitement to commit intentionally causing injury – Irresponsibility of AA in inciting own son, just released from gaol, to assault another – Grief in losing son as extra-curial punishment – Plea of guilty – Remorse – No prior convictions at age 60 – Excellent prospects of rehabilitation – Delay – AA sentenced to 12 months’ imprisonment with all but 81 days suspended for 12 months – But for plea of guilty, 18 months’ imprisonment with all but six months suspended for 18 months.
TH & MW: Recklessly causing serious injury – Low level of serious injury but offence still serious – Manslaughter (by criminal negligence) – Son complicit in behaviour causing own death – Grief of TH and MW in killing friend – Pleas of guilty – Remorse – Irrelevant prior convictions for TH – ADHD contributed to TH’s offending – Excellent prospects of rehabilitation for TH – Depression and extreme grief will make prison time particularly burdensome for MW – Significant prior convictions for MW – MW’s offending committed whilst on parole – Parole cancelled and partly served at time of sentence – Balance of parole sentence cumulative unless exceptional circumstances – Whether exceptional circumstances – Good prospects of rehabilitation for MW – Delay – Totality – Parity – TH sentenced to total effective sentence of eight years and six months’ imprisonment with non-parole period of five years and six months – But for pleas of guilty, total effective sentence of 11 years and six months’ imprisonment with non-parole period of eight years and six months – MW sentenced to total effective sentence of nine years’ imprisonment with non-parole period of six years – But for pleas of guilty, total effective sentence of 12 years’ imprisonment with non-parole period…

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 [2014] VSC 256
Case: [2014] VSC 256
Decision Date: 2 June 2014

CaseChat Overview and Summary

In this case, the appellants, TH, MW and AA, were found guilty of various charges arising from a violent incident involving SD. AA was charged with incitement to cause intentionally serious injury to SD. TH and MW were charged with recklessly causing serious injury to SD. AO was charged with being an accessory after the fact to the offence committed by TH and MW. The matter was heard in the Supreme Court of Queensland.

The court was required to consider a number of legal issues, including the appropriate sentences to be imposed on the appellants, taking into account various aggravating and mitigating factors. The court also had to consider the appropriate sentences for AO in relation to her charges of being an accessory after the fact and possessing unregistered firearms.

The court noted that AA had incited his son to assault SD, resulting in serious injury. The court found AA’s actions to be irresponsible, particularly given that his son had just been released from prison. However, the court also took into account AA’s advanced age, his lack of prior convictions, and his remorse. The court sentenced AA to 12 months’ imprisonment, with all but 81 days suspended for 12 months. The court also noted that the death of AA’s son would be an extra-curial punishment for AA. The court found that TH and MW had recklessly caused serious injury to SD. The court took into account the low level of injury caused, the fact that TH had ADHD, and the remorse shown by both appellants. The court also noted that MW had significant prior convictions and had committed the offence whilst on parole. The court sentenced TH to a total effective sentence of eight years and six months’ imprisonment, with a non-parole period of five years and six months. The court sentenced MW to a total effective sentence of nine years’ imprisonment, with a non-parole period of six years. The court found that AO had provided a false alibi for TH and lied about the whereabouts of the missing gun. The court noted that AO had no prior convictions and had good prospects of rehabilitation. The court sentenced AO to eight months’ imprisonment, wholly suspended for eight months.

The court made various orders in relation to the appellants’ sentences, including orders that certain sentences be served cumulatively and that certain non-parole periods be served. The court also made orders in relation to AO’s possession of unregistered firearms.

Orders