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Court of Criminal Appeal 14 February 2000

Regina v Darren ARMSTRONG

[2000] NSWCCA 16

Assault & violenceDrugsTheft & property

Citation: Regina v Darren Armstrong [2000] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 14 February 2000
Judge(s): Sully J; Carruthers AJ

Background

The appellant pleaded guilty in the District Court at Newcastle to armed robbery. On 9 August 1998, he entered a service station at Neath, confronted the male proprietor while holding a syringe, physically struggled with him, threatened the female proprietor, and took $311.20 from the till. He was apprehended five days later and promptly admitted the offence to police.

Solomon DCJ sentenced the appellant to six years' penal servitude, divided equally between a minimum term of three years and an additional term of three years. The maximum penalty for the offence under s 97(1) of the Crimes Act 1900 is twenty years' penal servitude.

The appellant sought leave to appeal against the sentence, arguing primarily that the sentencing judge had failed to give adequate weight to his lifelong drug addiction and to material presented under the principle in Cartwright, which concerns the relevance of an offender's prospects of rehabilitation to the structure of a sentence.

  • Whether the sentencing judge gave adequate consideration to the appellant's lifelong drug addiction as a mitigating and structuring factor in the sentence.
  • Whether the sentencing judge adequately considered the material relevant to rehabilitation prospects (the Cartwright principle), given that this material appeared to be addressed only briefly at the end of the remarks on sentence.
  • Whether, even if error were established, a lesser sentence was warranted in law having regard to the objective seriousness of the offence and the appellant's criminal antecedents.

Decision

The Court accepted that the sentencing judge had considered a range of subjective factors in the appellant's favour. These included the unsophisticated nature of the crime, the early admission of guilt to police, the prompt guilty plea on arraignment, genuine contrition (including letters of apology written to the victims), and the appellant's troubled personal history and drug addiction.

On the Cartwright point, the Court declined to find that the sentencing judge had entirely overlooked the rehabilitation material, even though it had been addressed only briefly at the end of the remarks on sentence. The Court acknowledged that the brevity of the treatment was capable of raising a suspicion of oversight but considered that inference too strong to draw on the available material.

The Court held that, even if some error in the treatment of the Cartwright material were accepted, it would not have justified imposing a lesser sentence. Balancing the appellant's serious and lengthy criminal antecedents (34 entries, including prior robbery matters, stretching from 1980 to 1998) against his drug addiction history, the Court concluded that a reduction in sentence would cut across the reasoning in the guideline judgment in Henry. The objective gravity of armed robbery remained a controlling consideration.

While the Court expressed genuine sympathy for the appellant's lifelong drug problem, it declined to interfere with the sentence. It did, however, direct the Registrar to communicate to the Commissioner of Corrective Services a strong recommendation that the appellant receive stable and continuing drug counselling and treatment throughout his incarceration.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • The Registrar of the Court directed to communicate to the Commissioner of Corrective Services the Court's strong recommendation that the appellant receive a stable and continuing regime of drug and drug-related counselling and treatment in custody.

Key Takeaways

  • Armed robbery involving a syringe was treated as an offence of the utmost objective gravity, consistent with the Court of Criminal Appeal's earlier guideline judgment in Henry.
  • A sentencing court's failure to elaborate extensively on rehabilitation material does not, without more, establish that the material was overlooked; the Court of Criminal Appeal will not draw that inference lightly.
  • Even where an appellant establishes some error in the consideration of mitigating factors such as drug addiction, a lesser sentence will not follow as a matter of course if the objective seriousness of the offence and the criminal antecedents of the offender would not warrant it.
  • Chronic, lifelong drug addiction was acknowledged as a genuinely significant subjective consideration, but was found insufficient to justify reducing a sentence for serious armed robbery when weighed against an extensive prior record including prior robbery offences.
  • In dismissing the appeal, the Court used its practical capacity to recommend therapeutic intervention, directing that the appellant's need for drug treatment be communicated to the corrective services authority, even though no formal order as to treatment could be made.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- Cartwright (1989) 17 NSWLR 243 (rehabilitation prospects and sentence structure)