R v Armstrong

[2015] NSWDC 363

District Court

New South Wales

Medium Neutral Citation:	R v Armstrong [2015] NSWDC 363
Decision date:	19 November 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For the offences of aggravated break, enter and commit serious indictable offence and using an offensive weapon with intent to prevent arrest, an aggregate sentence of 6 years and 3 months with an non-parole period of 4 years.  Direction that no action be taken in respect of the 3 breaches of good behaviour bonds.
Catchwords:	CRIMINAL LAW – sentence – particular offences – aggravated break enter and commit serious indictable offence – committed in home of victim – children present – infliction of corporeal violence – mid-range of objective seriousness – use offensive weapon with intent to prevent arrest – use of knife – threat to police officer – serious example of offence – not towards the upper end of scale of objective seriousness – relevant factors – offences committed whilst on conditional liberty – prior criminality – extensive record including similar offences – nature and circumstance of offender – homeless from young age – early drug and alcohol issues – working in custody – undertaking courses – genuine remorse – insight into offending evident – medium risk of reoffending – pleas of guilty at earliest opportunity – 25% discount – special circumstances for altering ratio between head sentence and non-parole period – will require intervention to resettle into community – youth of offender – 21 years old – need for rehabilitation – Form 1 for offence of being armed with intent to commit serious indictable offence taken into account
Legislation Cited:	Crimes Act 1900 (NSW), ss 33B(1)(a),112(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 98(2)(a)
Category:	Sentence
Parties:	Regina (Crown) Danny Armstrong (Offender)
Representation:	Solicitors: T Hennessy, Office of the Director of Public Prosecutions (NSW) (Crown) P Johnson, Paul Johnson (Offender)
File Number(s):	2015/000702

Judgment

1. For a 21 year old, Danny Armstrong has a long criminal history. His record involves offences in the Children’s Court for driving, break, enter and steal, stalking, having a knife in custody, goods in custody, car theft and affray. As an adult he has been sentenced in the Local Court for common assault, malicious damage, contravening an apprehended violence order and, again, stalking. All of those offences are relatively less serious than the very serious offences that I am sentencing him for today.

2. He has pleaded guilty to two offences and I convict him of the two offences that he has pleaded guilty to. I should say what they are. The first is an aggravated break, enter and commit a serious indictable offence. The serious indictable offence is assault occasioning actual bodily harm. When I am sentencing him for that offence he has asked me to take into account another offence which is being armed with intent to commit an indictable offence. I will take that into account and I sign a certificate to that effect. That certificate is MFI 1. The second offence that I am sentencing Danny Armstrong for is using an offensive weapon with intent to prevent arrest.

3. The first offence is against s 112(2) of the Crimes Act 1900 (NSW). Parliament regards that offence as so serious that it has fixed a maximum of 20 years imprisonment. Not only that, Parliament has fixed a standard non-parole period of five years to that crime. Technically, that standard non-parole period is not relevant to the sentence because Mr Armstrong has pleaded guilty. He has pleaded guilty at what the prosecution agrees is the earliest available opportunity and in due course, I will discount his sentences by 25%.

4. Returning to the offences, the second one - using an offensive weapon with intent to prevent arrest by the police - is a crime against s 33B(1)(a) of the Crimes Act. That is so serious that Parliament has fixed a maximum of 12 years imprisonment to that crime.

5. A judge needs to say what happened that resulted in an offender being charged before fixing the sentence. That is so that the judge can make an assessment of how serious an example the particular crime is of that offence.

6. These offences occurred on 1 January 2015. The victim was a woman who used to be the partner of Danny Armstrong. She herself had some five children and lived in Cowra with her mother. Although the relationship had ended in December last year, Mr Armstrong used to stay at her place on occasions. They went out together on 1 January this year. They went to a gathering down by the riverbank in Cowra, including going out onto the water. The victim of his crime left at about five. She went home and went to bed at about half-past-nine that night. Three of her children were at home with her and her mother was in another room. Some of her children were watching TV.

7. Shortly after she went to bed the woman woke “to see the accused in her room”. He started yelling at her about “having another man”. I am quoting from the agreed facts. The victim told Danny Armstrong to leave or she would call the police. Sensibly, at that stage, he left. He ran into her mother in the kitchen but then he left the house. The women went to bed again.

8. About an hour later Danny Armstrong came back to the house. He partially removed a seal on the back door and he got in. One of the victim’s children, a 13 year old, ran into the victim’s room telling her there was someone in the backyard. She woke up and again saw Danny Armstrong in her bedroom. He punched her to the nose and to the mouth. She got out of bed and ran towards the front door but Danny Armstrong ran after her. He grabbed her shirt, he pushed her and she hit her head on the wall. Her mother tried to intervene but the woman had been injured already. Her teeth and lips were cut.

9. Danny Armstrong did not stop at that. He went to the kitchen and got a knife from the drawer. He then chased the victim. She ran outside and hid behind a car. She then went back into the house and locked the door. She rang the police. She heard him shouting outside “I will stab you and cut my throat and would stab myself and we’d see who would have the last laugh”. Then what Danny Armstrong did was to smash the window in the lounge room with the knife.

10. Fortunately, the police had arrived. Senior Constable Buchtman was in the police car. He opened his door to deal with the situation. Danny Armstrong “then raised his right hand above his shoulder and moved it towards the officer in a slashing motion”. Senior Constable Buchtman “was forced to lean backwards to avoid being hit by the knife”. He sensibly got back into his car. Danny Armstrong “again raised the knife above his shoulder”. Then a second officer used his taser to subdue Danny Armstrong who eventually dropped the knife. He was put under arrest, saying to the police “Fuck you cunts, you dog cunts, I’ll kill you”.

11. It goes without saying that these are very serious crimes.

12. Danny Armstrong has a criminal record. I have listed the kinds of offences that are on his criminal record. As I said, they include intimidation and having custody of a knife. He also has convictions for damaging property.

13. Danny Armstrong was represented by Mr P Johnson at his sentence proceedings. Mr Johnson called his client to give evidence. Danny Armstrong grew up in Campbelltown and moved to Cowra about two years ago. He has a little girl called Mia, who is now about two and-a-half. Mr Armstrong is not in contact with Mia’s mother. Danny Armstrong had a relationship, as I said, with the victim of the present crimes. She has, herself, six children from a previous relationship. They are no longer together. The little girl is in the care of Family and Community Services.

14. When he leaves gaol, Mr Armstrong wants to go to live in Liverpool where his mother lives and to develop a better relationship with his mother, obtain employment and look after his daughter.

15. Whilst he has been in custody since his arrest on 1 January this year he has been working in the gaol and undertaking Aboriginal Studies. He has also been doing TAFE courses in cottons and synthetics until he had to move. He is also in the course of completing a Warehousing Certificate 2. He identifies as Indigenous and as a Kamilaroi man.

16. Danny Armstrong acknowledged alcohol and drug issues which are raised in his presentence report but had ceased using them before he went into custody. In fact, he said he handed himself in regarding some outstanding warrants. The outstanding warrants concern no fewer than three good behaviour bonds that he was serving at the time of these offences.

17. Danny Armstrong regrets what he has done. I accept that he is genuinely remorseful and he is prepared to accept his punishment. Asked by Mr Johnson, he said that if he had had the opportunity he would apologise to the victims of his offences. He hopes in the foreseeable future to have stable accommodation and a job so he can look after his daughter.

18. Cross-examined by Ms T Hennessy, who appeared for the Director of Public Prosecutions, Danny Armstrong acknowledged that he was drinking a lot at the time and that he was socialising with the victim that afternoon. He denied punching her in the face that night, but the agreed facts indicate that he did.

19. Danny Armstrong acknowledged that alcohol is a problem and that he wishes to change his habits. He acknowledged that he needs help. When he was on parole, he had thought that he would be all right but, as he said, “obviously I am not”. He had been forced into detox by the time in gaol and has stopped using drugs. He had been taking cannabis at an early stage but gave up and went cold‑turkey in the middle of last year. He acknowledged that he had probably been jealous and aggressive when he had too much to drink on 1 January this year. He would be prepared to take a residential rehabilitation course if the opportunity arose.

20. There is a presentence report about Danny Armstrong. It acknowledges his participation in study and courses whilst he has been in custody. It said that he was “cooperative and forthcoming with information pertaining to this report and appeared to display some insight into his offending”. That is consistent with my own observations. I thought similarly when I heard him give evidence. However, the author also realistically acknowledged that Danny Armstrong is assessed at a medium risk of re-offending. The author was in touch with his mother who expected that she would make contact with him again once he was released.

21. Danny Armstrong apparently left home at the age of 12 and was essentially homeless for a period of time. He had behavioural problems at school and finished his education in year 10 but, as I said, has undertaken studies whilst in custody. It noted his early engagement in prohibited substances and alcohol. It noted his good behaviour bonds and the fact that he was in breach of those.

22. In his submissions for his client, Mr Johnson said that the alcohol problem was more of a context for the offending. He did not suggest it was mitigating and he was realistic in acknowledging that. Mr Johnson argued that the offence of the aggravated break, enter and commit serious indictable offence was fairly serious but at the low end of seriousness. Ms Hennessy, on the other hand, argued that it was in the middle of the range.

23. I agree with Ms Hennessy. I am satisfied beyond reasonable doubt that it cannot fall below the middle of the range of objective seriousness. Not only did it involve an assault occasioning actual bodily harm on a victim, it was committed in her home in the presence of her children who were there or nearby. It involved corporeal violence and it was committed whilst Danny Armstrong was meant to be on good behaviour. In other words, a court had released him instead of sending him to gaol on condition that he behave himself.

24. The offence committed against the police officer, Ms Hennessy argued, was extremely serious. But for the evasive action taken by the police officer, he may have been seriously injured. It was, Ms Hennessy argued, a serious example of that kind of offence, but not towards the upper end. I think she is right in that submission.

25. I do take into account Mr Johnson’s submission that there had been no planning and that it had been spontaneous. But that must be tempered by the fact that Mr Armstrong came back a second time and on the second occasion committed the offences. Mr Johnson realistically acknowledged the importance of general deterrence, although his client was relatively young.

26. Mr Johnson pointed out his client’s early plea, which was not only valuable because of the time it saves for the courts, but also an indication of remorse. I accept that submission. I also agree that most of his client’s criminal record were offences dealt with by the Children’s Court when he was much younger and immature.

27. Danny Armstrong will settle away from the Cowra district where the trouble occurred and will stay with his mother and stepfather. Mr Johnson confirmed that his mother and stepfather have, in fact, been in touch with him by phone. I accept that he will be received into that environment eventually.

28. Addressing the rehabilitation potential, Mr Johnson argued that there was some potential because of his client’s young age. On the other hand, I do not regard those rehabilitation prospects as good; one must be realistic. I agree with Ms Hennessy’s submission that they would be, nevertheless, reasonable. The fact that he has undertaken courses and employment within custody is a very good sign.

29. I agree with Mr Johnson that his client’s evidence was cogent and he appeared to be honest regarding his evidence. Mr Johnson submitted that there are special circumstances for adjusting what is the normal ratio between a head sentence and a non-parole period. Normally a non-parole period is 75% of the head sentence. Ms Hennessy acknowledged the same. Danny Armstrong will need intervention to settle back into the community. His rehabilitation will continue outside the gaol. He is also relatively young and the less exposure he has to other people in custody, the better. He will need rehabilitation to avoid relapse.

30. Ms Hennessy emphasised the seriousness of the crime that I am taking into account in sentencing him for the aggravated break and enter. The main offence is domestic violence related and there is an important aspect of general deterrence to take into account in that regard.

31. Mr Armstrong was sentenced for another offence and his sentence was four months, from 8 July this year to 7 November this year. On one view I could date his present sentence from a date later than 1 January because of the time being served for that other offence. I do not propose to do that for this reason. I will be imposing a significant sentence on Mr Armstrong. On the other hand, he is at a young age. I am going to give him the benefit of not having to commence that significant sentence later than when he was arrested for this offence. I do appreciate that it means that he effectively serves no sentence for the other crime but I am going to do that primarily because of his age.

32. I come now to the appropriate sentences. Given that I find that the aggravated break, enter and commit serious indictable offence was in the middle of the range of objective seriousness and I am taking into account a serious other offence, normally I would regard a sentence of some nine years imprisonment as appropriate. But, given Mr Armstrong’s youth and his reasonable rehabilitation prospects I am going to fix the sentence for that first offence as seven years imprisonment.

33. I would normally regard an appropriate penalty for the second offence of using the offensive weapon towards the police as five and-a-half years imprisonment, but for the same reasons I would regard an appropriate penalty in Mr Armstrong’s case as being four and-a-half years imprisonment.

34. However, as I said earlier, Mr Armstrong has pleaded guilty at what is agreed was the earliest available opportunity. I would, therefore, discount those respective sentences of seven years and four and-a-half years by 25%. That means that the sentence I would have imposed for the aggravated break, enter and commit serious indictable offence, taking into account the other offence, would be five years and three months imprisonment. It also means that the sentence I would have imposed regarding using the knife towards the police officer, after the 25% discount, would be three years and four months imprisonment.

35. I would regard it as appropriate because they were distinct crimes with distinct victims - both very serious crimes - to accumulate the sentences by 12 months. In other words, the overall sentence that I would have imposed would have been six years and three months imprisonment, having accumulated the two penalties by 12 months.

36. Normally for a sentence of six years and three months a non‑parole period would be 75% of that. That would be four years and eight months. However, I would be prepared, in this case, to reduce the non-parole period to four years because of the special circumstances referred to by Mr Johnson and Ms Hennessy that I related earlier.

37. What I will do instead of imposing those individual sentences and accumulating them, is to fix one aggregate sentence covering both of the crimes and the aggregate sentence will be six years and three months and the non parole period will be four years’ imprisonment.

38. I sentence you to an aggregate sentence - one sentence - of six years and three months imprisonment. It commenced when you were arrested for this offence on 1 January 2015, it will expire on 31 March 2021. I fix a non‑parole period of four years. That commenced on 1 January 2015 and it will expire on 31 December 2018. The first date on which you will be eligible for parole is 31 December 2018.

HIS HONOUR: Do you understand?

OFFENDER: Yes, your Honour.

HIS HONOUR: Have a seat. Now, Mr Johnson, Ms Hennessy, I’m pretty sure the sums are right but take your time and let me know--

HENNESSY: The bonds?

HIS HONOUR: Yeah, I should deal with those too but let’s just do the sums, first.

JOHNSON: As you were delivering your remarks on sentence I was scratching out the sums and I agree with your Honour’s calculation.

HIS HONOUR: The sums are right, okay. Ms Hennessy? Take your time.

HENNESSY: I’m putting it into my calculator. Yes.

HIS HONOUR: They all right?

HENNESSY: Yes.

HIS HONOUR: Now, I haven’t heard either of you about the--

HENNESSY: Considering the sentence--

HIS HONOUR: I’m thinking considering the sentence that I’d decide to take no action.

JOHNSON: Thank you.

HENNESSY: I wouldn’t be heard against that. There’s one other thing--

HIS HONOUR: Right, just let me make that order:

39. In respect of the three breaches of the good behaviour bonds I am satisfied that Mr Armstrong failed to comply with the conditions of the three good behaviour bonds and, in each case, under s 98(2)(a) I decide to take no action with respect to those failures to comply.

HIS HONOUR: Yes, Ms Hennessy?

HENNESSY: Upon committal there was a 166 certificate. There was a common assault charge which was a backup to the aggravated break and enter charge and I’d ask for that to be withdrawn as a backup offence.

JOHNSON: I confirm that.

40. The back-up offence of common assault is withdrawn and dismissed.

HENNESSY: I have the 166 if your associate needs it.

HIS HONOUR: Okay, anything else? Mr Johnson, Ms Hennessy?

JOHNSON: Not from me.

HENNESSY: No.

HIS HONOUR: Danny Armstrong, you’ve received a significant sentence and that’s because - you’ve heard the reasons I gave – because of just how serious the crimes were that you’ve committed. Very serious. You’ve got to do your time for that which I think you understand, for those crimes. Your overall sentence, as I said, six years and three months and I’ve backdated it to 1 January. I could have backdated it less than that. Because of your age, I’ve decided to commence it back then; so, your overall sentence doesn’t expire until 31 March 2021. You’ve got a non-parole period of four years. Now, that could have been as high as four years and eight months, five years, but I’ve reduced it to four years. That will expire on 31 December, New Years Eve, 2018 and you are eligible for release then. That depends on the Parole Authority, you understand that don’t you?

OFFENDER: Yes, your Honour.

HIS HONOUR: Right, is there anything else?

HENNESSY: No.

JOHNSON: No.

HIS HONOUR: All right, well, keep up the good work you’re doing in custody and good luck from here on.

OFFENDER: Thank you, your Honour.

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Decision last updated: 10 February 2016