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R v Armstrong[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 

v

NEIL ROBERT ARMSTRONG

and

 

STEVEN RICHARD PARK

 

and

MICHAEL FRANCIS PULLYNApplicants

 

 

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 Pullyn picked up a chair and commenced hitting the complainant with it, striking him at least six times.  Armstrong then took up the chair and struck the complainant a further two or three times.  The attack ceased when the applicants believed that the police had been summoned.

 

The applicants left the house uttering threats that this was just a warning.  On leaving, Armstrong smashed the passenger and rear windows of the complainant's vehicle which is the substance of the additional charge against him.

 

After the intruders left the complainant cleaned himself up and was preparing to go to work when at approximately 5 am the applicants returned to the house and attempted to gain entry.  The complainant immediately telephoned the police.

 

The applicants, realising this was happening, left the premises but not before ripping the screen on the front window in their attempt to enter the dwelling.

 

The point of difference in the factual background relates to the extent of the complainant's injury.  He attended the Mount Isa hospital later in the morning where it was noted that he had swelling to the left hand, scalp tenderness, abrasions on the anterior chest, back and face, contusions and superficial laceration of the right cheek, left jaw swelling, contusion and abrasion to the upper inner lip, and linear abrasions to the forearms and arms.

 

The learned Crown Prosecutor described the injuries as "very severe" and the assaults as a "severe beating."  It is likely that the complainant feared for his wellbeing during the assault and it is probably fortunate for all concerned that there was not a more serious outcome.

 

However, in his sentencing remarks the learned sentencing Judge expressed no judgment on the severity of the injuries but only to note that to enter anyone's home in the early hours of the morning and then assault them is on any view, "a serious matter."  That is undoubtedly a correct assessment and the offending conduct is properly met with the imposition of a term of imprisonment.

 

Given the use of the chair as a weapon in the first instance, the persistence of the intention to do harm by returning to the house later, and again the applicant Pullyn arming himself with a chair a second time, it was appropriate to impose a penalty requiring some period of actual custody.

 

The question is whether the period of actual imprisonment of nine months in the case of Pullyn and Park, and 10 months in the case of Armstrong, is manifestly excessive in the circumstances as well as whether the learned sentencing Judge started with the appropriate head sentence.

 

It is proper in my view that there should be some distinction between Armstrong and the other two applicants.  He appears on the facts not to have known the complainant but to have taken it upon himself to lead the assault.  His role is further distinguished by the unlawful damage to the complainant's vehicle.

 

Armstrong has a criminal history which includes a conviction for a like offence in 2002 for which he was ordered to perform 50 hours of community service.  He has subsequent offending for producing and possessing prohibited drugs, obstructing police and committing a public nuisance.  Whilst these offences may not be serious in themselves, that offending does show a disregard for the law and authority.

 

By contrast the other applicants have no prior convictions.  They are New Zealand citizens and propose, when free to do so, to return to New Zealand.

 

To the credit of each of the applicants is the fact that they have shown genuine remorse and have offered to pay compensation to the complainant.  Each of them has a good work record and the capacity to earn high income.

 

The applicants refer to a number of cases in which they contend are comparable to the present circumstances.  The first case relied upon by the applicants is R v Salmon; ex parte A-G (Qld) [2002] QCA 262 where the accused in company with others broke into a dwelling of his uncle in an attempt to recover his two and a-half year old nephew.  That was resisted by the uncle and both the uncle and the aunt were assaulted with a piece of wood.

 

The initial sentence of 12 months' intensive correction order after a plea of guilty was set aside.  The Court of Appeal suggested that the appropriate range for this offending was 18 months to two years' imprisonment suspended after six to eight months.

 

Another Attorney-General appeal relied upon is R v Sailor; ex parte A-G (Qld) [2003] QCA 227, which in my view provided little guidance.  The accused with two co-offenders tried to enter a house which had previously been the scene of a murder of one of the accused's relatives.  He believed the house at that time to be unoccupied and this is a significant distinction between the present circumstances. 

 

The complainant in that case, who surprised them, was living there.  The accused kicked the door open, entered the house and assaulted the complainant in the mistaken belief that that person had been involved in the murder.  Once he had realised his mistake he was deeply remorseful and cooperated with the police.  These rather special circumstances resulted in an intensive correction order being made and, as I have mentioned, I regard the case of no relevance to the present application.

 

In R v Blenkinsop [2007] QCA 181, two brothers were part of a group of four men who carried out a house invasion for the purpose of assaulting a person who they believed to be a paedophile.  The two persons in the house were subjected to a prolonged assault and the house was ransacked.

 

One of the brothers who had no prior conviction was sentenced on a guilty plea to four years' imprisonment suspended after 12 months for a period of five years.  On appeal that penalty was set aside to one of imprisonment for 3 years and parole after 9 months was substituted.

 

In R v Bower-Miles & Smith [1995] QCA 453 the two accused, aged respectively 29 years and 19 years, entered the dwelling house of persons whom they rightly believed had stolen car parts from their friend.  One accused was armed with a wooden batten and the other with a billiard cue.  In the ensuing fight the complainants in fact got the upper hand and one of the accused was knocked unconscious. 

 

The accused were each sentenced to three and a-half years' imprisonment with a recommendation of parole after serving 12 months.  On appeal they were resentenced to two years' imprisonment suspended after six months.

 

The respondent has referred to cases which generally show a range of between two years and three years for similar type offending though in two of them the accused persons were armed before attending the premises to be invaded.

 

Mr Copley particularly relies on the remarks of The President in the case of Cockfield who, after examining a number of cases including those presently relied upon by the applicants, suggested that a range for this type of offending was between two and a-half years to three years.

 

On balance, I have taken the view that the head sentences imposed in this instance are within range.  The modification of the sentence to reflect matters favourable to the applicants, particularly the pleas of guilty, by allowing early release on parole was in the main appropriate, but it did not sufficiently distinguish between the respective actions of the applicant Armstrong, on the one hand, and the applicants Pullyn and Park on the other.

 

Armstrong's conduct was more blameworthy than the others and, as well, he had a criminal record though of limited relevance to an offence of violence.  As between Pullyn and Park there was no suggestion that Park used the chair at any time and his role was more in the nature of a presence with a minor contribution to the assault.

 

I would not, however, distinguish between the actions of Park and Pullyn taking into account the latter's emotional turmoil which, whilst not excusing his actions, does explain them to some degree.

 

I see no basis for changing the period of actual time in prison ordered to be served by the applicant Armstrong.  His penalty, including the provision for parole release, has not been shown to be manifestly excessive in my view.

 

I do, however, take the view that insufficient consideration was given to the fact that both Pullyn and Park were first offenders and were otherwise good members of the community.  I regard that the time already served by Park and Pullyn as being appropriate time in custody. 

 

I would therefore dismiss the application for leave to appeal made by the applicant Armstrong.  I would, however, allow the applications made on behalf of the applicants Pullyn and Park by suspending their sentence as from the 30th of May 2008 with an operational period of three years.

 

MUIR JA:  I agree.

 

MACKENZIE AJA:  I agree.

 

MUIR JA:  The orders of the Court are as follows:

 

In appeal 54 of 2008, the appeal by Neil Robert Armstrong, the application for leave to appeal is dismissed;

 

In each of the other two matters the application for leave to appeal is allowed;

 

The appeal is allowed and the sentence is varied to the extent that reference to a parole release date is deleted and it is ordered that the sentence be suspended with effect from 30 May 2008 with an operational period of 3 years.

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Editorial Notes

  • Published Case Name:

    R v Armstrong, Park, Pullyn

  • Shortened Case Name:

    R v Armstrong

  • MNC:

    [2008] QCA 132

  • Court:

    QCA

  • Judge(s):

    Muir JA, Mackenzie AJA, Jones J

  • Date:

    29 May 2008

Litigation History

EventCitation or FileDateNotes
Primary Judgment-06 Feb 2008Three co-accused 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 sentenced to three years' imprisonment in respect of the aggravated burglary, and 18 months' imprisonment in respect of the attempted burglary.
Appeal Determined (QCA)[2008] QCA 13229 May 2008Armstrong sentence application refused, but sentence applications of Pullyn and Park granted by suspending sentence day after appeal judgment; needed to distinguish between Armstrong and others: Muir JA, Mackenzie AJA, Jones J.

Appeal Status

Appeal Determined (QCA)

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