R v Armstrong [2000] NSWCCA 16 (14 February 2000)

Last Updated: 27 October 2000

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Darren ARMSTRONG [2000] NSWCCA 16

FILE NUMBER(S):

60760/98

HEARING DATE(S): 14/2/2000

JUDGMENT DATE: 14/02/2000

PARTIES:

Regina

Darren Armstrong

JUDGMENT OF: Sully J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/31/0390

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

COUNSEL:

L.M.B. Lamprati - Crown

J.S. Andrews - Appellant

SOLICITORS:

S.E. O'Connor - Crown

T.A. Murphy - Appellant

CATCHWORDS:

LEGISLATION CITED:

Crimes Act 1900

Criminal Appeal Act 1912 (NSW)

DECISION:

Leave to appeal granted

Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60760/98

SULLY J

CARRUTHERS AJ

14 February 2000

REGINA v Darren ARMSTRONG

JUDGMENT

1 SULLY J: This is an application by Mr Darren Armstrong for leave to appeal against a sentence of penal servitude which was imposed upon him in the District Court at Newcastle by his Honour Solomon DCJ. On 29 October 1998, Mr Armstrong was arraigned in the District Court at Newcastle and before his Honour Job DCJ. He was charged with having robbed, on 9 August 1998, one Maxwell Lewis of $311.20, the property of the Neath Ampol Service Station, he then being armed with an offensive weapon, namely a syringe. Upon such arraignment the applicant pleaded guilty. In due course he stood for sentence before Solomon DCJ on 27 November 1998. His Honour convicted the applicant and sentenced him to penal servitude for six years which his Honour divided equally between minimum and additional terms.

2 The crime of robbery while armed with an offensive weapon is a contravention of s 97(1) of the Crimes Act 1900 and it attracts upon conviction a statutory maximum of penal servitude for twenty years.

3 The relevant facts are as follows. Shortly before 11am on Sunday 9 August 1998, the applicant entered the shop forming part of the premises of the Ampol Service Station at Cessnock Road, Neath. Both proprietors of the shop were then present on the premises and were behind the counter preparing for the day's trading. The applicant entered the premises and walked around the side of the service counter in the premises. At the entrance of the service counter the applicant came face to face with the male proprietor. The applicant began to yell at the proprietor demanding money. The applicant was at that time carrying in his left hand a syringe and this fact was obvious to the proprietor.

4 It is not clear, as the evidence stands, whether in fact the syringe had in it fresh blood, or material of that kind. The evidence is in such a state that it is at least possible that it was, as the applicant in due course told the police he thought to have been the case, simply a dirty syringe. The male proprietor having seen the syringe, and having been accosted in that fashion by the applicant, struggled with the applicant in the vicinity of the counter. During the course of that exchange, the applicant punched the proprietor who, in his turn, seems to have been concentrating on holding away from himself the applicant's hand holding the syringe.

5 The applicant eventually broke free and made his way to the till, all the time yelling at both the proprietor and his wife, then present, instructions of one kind and another. Eventually he pushed the female proprietor away from the till, threatening her with the syringe, before taking from the till money totalling $311.20. All that having been done, the applicant ran from the premises and was not seen again until, some five days later and on 14 August, he was spoken to by the police in connection with another matter. He was taken to the Wallsend Police Station and interviewed; and he promptly admitted his involvement in the robbery that I have previously described.

6 The applicant told the police that he was an intravenous drug user; that he had been, in effect, desperate for access to drugs at the time he committed the robbery; and that he had been unable then to think of any other way to get quickly the money that he needed in order to acquire the drugs.

7 It is not, I think, necessary to dilate yet again upon the objective gravity of any robbery of the kind that I have described. Time and time and time again, both before and after the recent guideline judgment published by this Court in the matter of Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, it has been made as clear as words can do that armed robbery of any kind is one of the most serious offences in the criminal calendar.

8 All of these things were, of course, well within the contemplation of the learned sentencing Judge. Within his Honour's contemplation also were a number of not insignificant subjective considerations. His Honour dealt with them in a way that can be summarised as follows:

1. The offence was not a sophisticated crime. His Honour took note of various matters of detail which need not now be repeated, but which were sufficient to show that, although there was obviously some premeditation connected with the crime, it was, as his Honour said, "not a sophisticated crime".

2. The applicant's early admission of guilt made to the police.

3. The prompt plea of guilty upon arraignment; and the significance of it from the point of view of the saving to the community of the cost of bringing the applicant to trial.

4. The prisoner's contrition, which his Honour accepted as genuine, and which his Honour thought was bolstered by the action of the applicant, apparently at his, the applicant's, own initiative, of writing to the two proprietor victims expressing his remorse and sorrow for what he had done.

5. His Honour took into account the prisoner's background; and that has two aspects. The prisoner has had, as it would seem, an unhappy and unsettled personal history; and at the time he stood for sentence he appeared to have found at least a measure of present and contingent domestic stability. As I have followed some of the material put before us this afternoon, that state of affairs has not, unhappily, survived his incarceration.

6. The other aspect of the applicant's background when he stood for sentence, as indeed now, is the aspect manifested by his criminal antecedents. By any reckoning the applicant has a very daunting criminal record. As presented to this Court at pages 5 through 11 of the Appeal Book, there are thirty-four items, most of them multi-headed items, stretching from 1980 until 1998. There are two entries, not particularly recent, for robbery; one dating from 1986, when the applicant was dealt with in the District Court at Cessnock and sentenced to imprisonment for four years with a non-parole period of two years; the other being more correctly described as an instance of stealing from the person. It was dealt with in the Local Court at Cessnock, where it attracted a sentence of imprisonment for a minimum term of eighteen months and an additional term of six months. Those two matters are, at least as I think, the matters that leap out from the antecedents as having, in a real sense, relevance for present purposes; although it is to be observed that a number of the other matters in the record are, in their own terms, not by any means insignificant.

7. His Honour took into account the material which has been marked for identification 1 at the present hearing. It will be necessary to return presently and in more detail to this material.

9 It is apparent, I think, on any fair reading of the material that the applicant has been drug addicted, as he himself has consistently maintained, for practically the whole of his adult life. In that regard it is timely to note that he was born in 1964;is now some three weeks short of his thirty-sixth birthday; was aged some thirty-four years and eight months when he stood for sentence; and some thirty-four years and five months at the time of the offence now in question.

10 At page 66 of the Appeal Book there will be found the answer given by the applicant to question 74 of the questions asked of him during the course of his relevant interview with the investigating police. It is not necessary, I think, to set it out word for word; but it is relevant to note the thrust of what the applicant there says. Put simply, he contends that being sent to gaol is not going to assist him in getting on top of his drug addiction. He contends that every time he is put in gaol, he serves whatever sentence has been passed upon him; he is thereafter released; and then almost as of course, finds himself locked back into the drug addicted lifestyle which had landed him in trouble in the first place. He speaks in his answer of having had what he describes as "one chance"; and that was, as it would seem, a chance to attend the William Booth Institute, a well known institution conducted by the Salvation Army for the purpose, among others, of assisting drug and alcohol addicts. The applicant in his answer says that, as he put it:

"I busted there and I had to leave for the 21 day period and they said I could go back when the 21 day period was up. The judge wouldn't let me go back and that well that's the only chance I've ever had ever since I was 15 years old".

11 The problem of which the applicant there speaks is, I do not doubt, a real, and a serious, problem from his point of view. I do not doubt, either, that it is a personal and social problem for which he is entitled to have the proper assistance that the community, through its relevant institutions, can give him. It does need to be borne in mind, however, and to be reaffirmed yet again in this Court, that drug dependency, while it may explain serious crime, cannot be allowed to become a convenient excuse for serious crime. It is in every case a question of balance, but remembering always that the first point to be established in any sentencing proceeding is to fix, and thereafter to keep steadily in mind, a level-headed grasp of the true objective criminality of what is being punished.

12 Such, then, is the general background against which the learned primary Judge imposed the sentence of penal servitude to which I have earlier referred.

13 One essential attack is now made upon the sentence. It is that the seventh of the subjective matters to which I have earlier referred either was not considered by the learned sentencing Judge at all; or, if it was, was not given its proper place in the relevant scheme of things.

14 The contents of MFI 1 disclose a course of events which the learned primary Judge was required, - as indeed this Court is now required, - to take into proper account. Decisions of this Court, of which the celebrated decision in Cartwright is the only one which needs to be referred to specifically, establish plainly the relevant principle, and establish as plainly the rationale upon which the principle is said to rest. That there is such a principle; that it must be applied properly; and that it will normally issue in some appreciable discount of sentence; are all propositions so clearly established that they are beyond present questioning.

15 Also beyond present questioning is, however, the qualification placed upon the unfettered operation of the Cartwright principle by section 442B of the Crimes Act 1900 (NSW), and in particular by section 442B(2). It is worth recalling the terms of the subsection. They are,

"A court must not reduce sentence so that the sentence becomes unreasonably disproportionate to the nature and circumstances of the offence".

16 It is always possible, of course, when confronted with such a legislative provision, to launch enthusiastically into a highly refined debate as to what is, and is not, disproportionate, or unreasonably disproportionate; and as to how the nature, and the circumstances, of a particular offence are to be found, and assessed, and so forth.

17 But in the end the application of the Cartwright principle, as qualified by section 442B(2), is not, at least as I see it, yet another occasion for some extended, elegant, theoretical abstraction. What the Court is required to do is its dutiful best to hold in a just balance elements which are, as a matter of strict logic, not always reconcilable at all. In terms relevant to the remit of this Court, there is the further requirement of section 6 (3) of the Criminal Appeal Act 1912 (NSW) that the Court is to dismiss an appeal against sentence unless it is satisfied, - but satisfied of course upon the basis of proper principle correctly applied, - that some other sentence is "warranted in law".

18 The way in which the Cartwright principle, and the section 442B(2) qualification to it, have been argued in connection with the present application raises some interesting questions with which, as I think, it is not necessary to grapple in any detail. Sooner or later, I daresay a case of the present kind will arise in which it is necessary to consider whether the Cartwright principle can possibly entail that a person is permitted to keep on foot, as it were in simultaneous parallel channels, a life of repeated criminal offences on the one hand; and of repeated conduct, on the other hand, which might be thought capable of attracting a Cartwright type consideration. A related question is whether such a person is entitled to have his Cartwright benefits, as it were, grow incremental in parallel with his continuing criminal activities; or whether he is entitled, as it were to bank them, until he confronts a really serious contingent sentence, and then, as it were, to produce his accumulated Cartwright credits.

19 As it happens, and for reasons to which I shall come in a moment, I do not think that those particular questions need to be resolved in the present case. I advert to them because, as it seems to me, a note, even of the most general kind, ought to be taken of them; for, sooner or later, the ingenuity of those who wish to resort to Cartwright will certainly produce those questions in a form which is concrete, and which does require the positive and precise attention of the Court.

20 I would not be prepared to make a finding that the learned primary Judge did not attend at all to the contents of MFI 1. I appreciate the point that has been made in that regard, and to the effect that the way in which his Honour's comments on that aspect of the matter are, so to speak, tacked onto the end of the remarks on sentence is apt to excite a suspicion that perhaps his Honour had overlooked the matter entirely. As I say, I would not be prepared to draw that inference upon the basis of the material, such as it is, that is before this Court on the point.

21 The associated contention that his Honour, if he did consider the Cartwright aspect of the case, did not give it its proper place in the scheme of things, can be disposed of, as I think, in this way. Even were it to be accepted that his Honour had fallen into error in some such way, there would remain still the question whether this Court felt that a lesser sentence was warranted in law. For my own part, I am not unsympathetic to the lifelong drug problem that the applicant obviously has had, and has. But I cannot think that a consideration of that kind, even when coupled with the contents of MFI 1 and brought into balance, as must be done, with the antecedents to which I have earlier referred, can possibly justify the view that a lesser sentence is warranted in law for a crime of the kind that I have earlier herein described. To hold otherwise would be, in my view, to cut across the reasoning in the recent guideline judgment.

22 I think that it would be appropriate, having regard in particular to the matters that the applicant himself has set out in the affidavits which we have seen this afternoon, to attempt some practical recommendations that might ameliorate some of the more unfortunate aspects of his present incarceration; but as to the sentence itself, I do not think that cause has been shown for disturbing it.

23 I would favour orders as follows:

1. That the application for leave to appeal be granted.

2. That the appeal be dismissed.

3. That the Registrar of the Court be directed to communicate to the Commissioner of Corrective Services promptly the strong recommendation of the Court that the applicant, in whatsoever particular custody he may be held from time to time, requires, and ought to receive, a stable and continuing regime of drug, and drug related, counselling and treatment.

24 I propose orders accordingly.

25 CARRUTHERS AJ: I agree.

26 SULLY J: The orders of the Court will be as I have announced them.

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LAST UPDATED: 22/02/2000