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District Court 15 December 2023

R (Cth) v ARMSTRONG

[2023] NSWDC 563

DrugsFraud & dishonesty
CRIME DISHONESTLY OBTAIN FINANCIAL ADVANTAGE FRAUD AND ATTEMPT ON THE COMMONWEALTH APPEAL METHYL AMPHETAMINE SENTENCE SUBJECTIVE FEATURES

Citation: R (Cth) v Armstrong [2023] NSWDC 563
Court: District Court of New South Wales
Date: 15 December 2023
Judge: Lerve DCJ

Background

The offender appeared before the Wagga Wagga District Court on two separate but simultaneous sets of proceedings. The first involved sentencing for two Commonwealth fraud charges: dishonestly obtaining $64,092 from the Commonwealth by lodging false Business Activity Statements (BAS) with the ATO, and attempting to obtain a further $123,855 by the same method. The offender also submitted a false disaster relief payment claim to Services Australia, receiving $3,000 to which he was not entitled. All of this occurred between March and April 2022.

The second set of proceedings was a severity appeal against sentences imposed by a Magistrate at Wagga Wagga Local Court for five charges of knowingly taking part in the supply of methamphetamine. Those offences involved quantities ranging from 7.7 to 28 grams and occurred across four separate dates in April and July 2022 at locations in regional NSW.

The offender was a co-offender with Wayne Garrett (separately sentenced in November 2023) and with his own mother. He had a significant criminal record, and his subjective circumstances included PTSD, major depressive disorder, and substance abuse, with a causal connection established between those conditions and the offending. The drug supply was characterised as funding his own habit rather than commercial profit-driven dealing.

  • What aggregate sentence was appropriate for the two Commonwealth fraud offences, having regard to the guilty pleas, subjective circumstances, and the need for partial accumulation with the drug sentences?
  • Was the Local Court Magistrate's sentence for the drug supply offences excessive in its severity, and in particular, did the Magistrate err in the commencement date of the sentence?
  • What discount for the utilitarian value of guilty pleas applied across both sets of proceedings?
  • How should the offender's mental health conditions (PTSD, major depressive disorder, substance abuse) bear on the sentencing exercise?

Decision

On the appeal against the drug supply sentences, Lerve DCJ upheld the appeal. The Magistrate had imposed an aggregate sentence of 2 years 6 months with a non-parole period of 1 year 8 months, commencing 28 November 2022. The District Court found that the commencement date was itself an error requiring the appeal to succeed, as the offender had been in custody from arrest on 9 May 2022 and the sentence should have commenced earlier. The District Court re-sentenced the offender to an aggregate of 2 years 2 months with a non-parole period of 1 year 4 months, backdated to 9 August 2022.

On the fraud sentencing, the Court imposed an aggregate sentence of 2 years 9 months (33 months) commencing 9 May 2023. After 15 months in custody, the offender was to be released on a recognizance of $1,000 to be of good behaviour for 2 years, with conditions requiring compliance with supervision, treatment for substance abuse and mental health conditions, and notification of address changes. A reparation order of $64,092 was made in favour of the Commonwealth.

Across both sets of proceedings, the Court applied the established discount for the utilitarian value of guilty pleas: 25% for early pleas and 20% for pleas entered after initial not-guilty pleas. Lerve DCJ noted that the offender's criminal history was "unenviable" but acknowledged the established causal connection between his PTSD, major depressive disorder, substance abuse, and the offending. The Court noted that the drug supply was to fund his own addiction rather than for commercial gain, which was relevant to the assessment of moral culpability. The ratio between the total fraud sentence and actual time in custody was noted to be lower than would otherwise be appropriate, attributable to the mechanics of partial accumulation across the two sets of proceedings.

Orders Made

Drug supply appeal:
- Appeal upheld; Local Court sentence set aside
- Aggregate sentence of 2 years 2 months, non-parole period of 1 year 4 months, backdated to commence 9 August 2022
- Non-parole period to expire 8 December 2023; balance of term to expire 8 October 2024
- Offender to be released to statutory parole at expiration of the non-parole period
- Drugs seized in the appeal matters to be destroyed

Commonwealth fraud matters:
- Offender convicted on each charge
- Aggregate sentence of 2 years 9 months, commencing 9 May 2023
- After 15 months, offender to be released on recognizance of $1,000, conditioned on good behaviour for 2 years, compliance with Community Corrections supervision, participation in substance abuse and mental health treatment, and notification of address changes
- Reparation order of $64,092 in favour of the Commonwealth
- Copy of the psychologist's report (Mr Awit) to be forwarded to the Department of Corrective Services
- Court's intention that the offender be released upon acknowledging the recognizance on 8 August 2024

Key Takeaways

  • The District Court confirmed that the Local Court's jurisdictional limit of 2 years is precisely that: a jurisdictional ceiling, not a maximum reserved for the worst category of case, consistent with the principles in Park v The Queen [2021] HCA 37 and Greaves v R [2020] NSWCCA 140.
  • An error in the commencement date of a sentence can alone be sufficient to require a severity appeal to succeed, even where the overall length of the sentence might otherwise have been defensible.
  • A causal connection between diagnosed mental health conditions (PTSD, major depressive disorder, and substance abuse) and the commission of offences remains a relevant mitigating factor in sentencing, including where the offences involved drug supply to fund the offender's own addiction.
  • The utilitarian value of a guilty plea attracted a 25% discount where entered at an early stage and 20% where entered only after an initial not-guilty plea, with the Court applying those figures consistently across both the sentencing and appeal proceedings.
  • Where an offender faces multiple sets of proceedings being resolved simultaneously, the interaction of partial accumulation can affect the ratio between the total sentence and actual time served, and the sentencing court may explicitly acknowledge that the resulting ratio is lower than would otherwise be imposed.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 11.1, 134.2
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases:
- Park v The Queen [2021] HCA 37
- Bugmy v The Queen [2013] HCA 37
- Hili & Jones v The Queen (2010) 204 A Crim R 434
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- DPP (Cth) v Beattie (2017) 270 A Crim R 556
- Parente v R (2017) 270 A Crim R 412
- Greaves v R [2020] NSWCCA 140
- Moiler v R [2021] NSWCCA 73
- Rasel v R [2022] NSWCCA 239
- Acosta v R [2015] VSCA 94
- Sabra v R [2015] NSWCCA 38
- Health Care Complaints Committee v Johnson [2023] NSWCATOD 165