R v Armstrong, Park, Pullyn - [2008] QCA 132

[2008] QCA 132

COURT OF APPEAL

MUIR JA
MACKENZIE AJA
JONES J

CA No 54 of 2008
CA No 60 of 2008
CA No 61 of 2008

THE QUEEN

NEIL ROBERT ARMSTRONG

and

STEVEN RICHARD PARK

and

MICHAEL FRANCIS PULLYN Applicants

TOWNSVILLE

DATE 29/05/2008

JUDGMENT

JONES J: On 6 February 2008 at the District Court at Mount Isa each of the applicants pleaded guilty on ex officio indictment to one count of burglary and assault occasioning bodily harm whilst armed and in company, and one count of attempted burglary by breaking at night in company.

Each applicant was sentenced to three years' imprisonment in respect of the aggravated burglary, and 18 months' imprisonment in respect of the attempted burglary.

The applicant Armstrong additionally pleaded guilty to one count of wilful damage in respect of which he was sentenced to two months' imprisonment. All sentences were to be served concurrently.
For the applicant Armstrong the parole release date was fixed as 6 December 2008, that is after 10 months in custody. For each of the other two applicants the parole release date was the 1st of November, approximately nine months after sentence.

Each of the offenders seek leave to appeal against the sentences as being manifestly excessive. There is no challenge to the fact that a term of imprisonment had to be ordered, but both at the hearing and now in this application the submission is that a lesser time in prison should have been ordered.

Save for the one point, the facts below are not seriously in dispute. The conflict between the complainant and the applicants had its background in the sense of betrayal felt by the applicant, Pullyn, when he discovered his pregnant de facto wife in bed with the complainant.

Prior to that time he and the complainant were friends and the complainant had been living at his house for some nine months. This incident occurred approximately two weeks prior to these offences. As a consequence of that discovery the relationship between the complainant and his partner broke down and the applicant Pullyn left the house.

On the 20th of September 2007 the applicants who had drunk to excess through the preceding evening decided to visit the complainant's home to seek some retribution by assaulting him. At about 3.20 am the complainant was woken by knocking on the front door and by shouting. He opened the door and was confronted by the applicant Armstrong, whom he had never met or seen before. Behind Armstrong were the applicants Pullyn and Park who were known to the complainant. A fourth person who has been charged over these events has not yet been dealt with.

After words were exchanged, Armstrong punched the complainant in the mouth knocking him backward over a coffee table. Armstrong then entered the room and continued to punch the complainant who retreated into the dining room.
The other applicants then joined in, each of them hitting the complainant several times. In the course of this assault…

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, Park, Pullyn

Details

AGLC: R v Armstrong, Park, Pullyn [2008] QCA 132
Case: [2008] QCA 132
Decision Date: 29 May 2008

CaseChat Overview and Summary

In the Court of Appeal, the applicants, Neil Robert Armstrong, Steven Richard Park, and Michael Francis Pullyn, appealed against their sentences for burglary, assault, and attempted burglary. Each applicant was sentenced to three years' imprisonment for aggravated burglary and 18 months' imprisonment for attempted burglary, to be served concurrently, with parole release dates set for a short period after their imprisonment. Armstrong also received an additional two-month sentence for wilful damage. The applicants argued that their sentences were manifestly excessive.

The legal issues before the Court were whether the sentences imposed were manifestly excessive and whether the sentencing judge had chosen the appropriate starting point for the sentences. The applicants argued that the sentences should be reduced due to their remorse, good character, and lack of prior convictions, while the Crown argued that the sentences were within the appropriate range for such offences.

The Court found that the sentences for aggravated burglary were within the appropriate range, but there was insufficient differentiation between Armstrong's role as the leader of the assault and the other applicants' roles. Armstrong's criminal history, although not directly relevant to the violent nature of the offence, demonstrated a disregard for the law. The other applicants had no prior convictions and were first offenders. The Court found that the sentences for the applicants Pullyn and Park were excessive due to their status as first offenders and good character. The Court dismissed Armstrong's appeal but allowed the appeals of Pullyn and Park, varying their sentences to be suspended with effect from 30 May 2008, with an operational period of three years.

Orders