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R v Armstrong[2016] QCA 243

SUPREME COURT OF QUEENSLAND

CITATION:

R v Armstrong [2016] QCA 243

PARTIES:

R

 

v

ARMSTRONG, Gary Collyer

(applicant)

FILE NO/S:

CA No 263 of 2015

DC No 1503 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 2 October 2015

DELIVERED ON:

27 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2016

JUDGES:

Fraser and Philip McMurdo JJA and North J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. Grant leave to appeal against the sentence imposed on 2 October 2015.
  2. Allow the appeal and set aside the orders made.
  3. Order that the appellant be sentenced upon count 1 on the indictment to a term of imprisonment of five and a half years with a parole eligibility date of 2 August 2017.
  4. Declare that that sentence has been reduced pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) for the reason that the appellant has undertaken to cooperate with law enforcement agencies in other proceedings and that the sentence which would have been imposed, but for this reduction, would have been a term of seven and a half years with a parole eligibility date of 2 April 2018.
  5. For each of counts 2 and 3 upon the indictment the appellant be sentenced to a term of 16 months imprisonment with those sentences to be served concurrently with each other and to commence on 3 August 2017.
  6. On counts 2 and 3 the appellant be released after serving six months upon entering into a recognizance in the sum of $5,000 on condition that he be of good behaviour for a period of five years.
  7. Declare that the orders made in (5) and (6) are being reduced because the appellant has undertaken to cooperate with law enforcement agencies in proceedings relating to an offence and the sentences which would have been imposed but for that reduction are, upon each count, two years imprisonment to commence on 2 August 2017 with an order for release of the appellant after serving nine months upon entering into that same recognizance.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his pleas of guilty to one count of fraud under the Criminal Code (Qld) and two counts of insolvent trading under the Corporations Act 2001 (Cth) – where the applicant had entered a formal undertaking to give evidence in two other prosecutions – where the sentencing judge accepted that notwithstanding the significant amounts involved in each offence the applicant was not motivated by personal gain, but indicated that a head sentence of 10 years for the state offence appropriately reflected the applicant’s overall criminality – where, for the state offence, the sentencing judge sentenced the applicant to seven years imprisonment with parole eligibility after two years and four months and indicated that but for the applicant’s undertaking he would have been sentenced to 10 years imprisonment with parole eligibility after four years – where, for the Commonwealth offences, the sentencing judge sentenced the applicant to concurrent terms of two years and eight months imprisonment and directed that the applicant be released on a recognizance after 10 months – where there is an error in the effect of those sentences because the applicant cannot be released on a recognizance for the Commonwealth offences before the parole eligibility date for the state offence – where the applicant contends that in any event the head sentence of 10 years imprisonment for the state offence is manifestly excessive and consequently affects any reduction given for his undertaking to cooperate – whether the sentences are manifestly excessive

Crimes Act 1914 (Cth), s 19(3)

Penalties and Sentences Act 1992 (Qld), s 156

R v Bowditch [2014] QCA 157, cited

R v Daswani (2005) 53 ACSR 675; [2005] QCA 167, cited

R v McMillan [2005] QCA 93, cited

R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited

R v NK (2008) 191 A Crim R 483; [2008] QCA 403, cited

COUNSEL:

M J Byrne QC for the applicant

S J Keim SC, with M J Woodford, for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Commonwealth) for the respondent

  1. [1]
    FRASER JA:  I have had the advantage of reading the reasons for judgment of Philip McMurdo JA.  I agree with those reasons and with the orders proposed by his Honour.
  2. [2]
    PHILIP McMURDO JA:  The defendant pleaded guilty to one count of fraud under s 408C of the Criminal Code (Qld) and two counts of insolvent trading under s 588G of the Corporations Act 2001 (Cth).  For the offence of fraud, which I will call the State offence, he was sentenced to a term of seven years imprisonment with an eligibility for parole on 2 February 2018, which was after serving one-third of that term.  For each of the other counts, which I will call the Commonwealth offences, he was sentenced to a period of two years and eight months imprisonment with a direction, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that after serving 10 months he be released upon entering into a recognizance in the sum of $5,000 on condition that he be of good behaviour for a period of five years.  There was no period of presentence custody.  The sentences were to be served concurrently and pursuant to s 19 of the Crimes Act , it was ordered that the sentences for the Commonwealth offences commence on the day of sentencing which was 2 October 2015.
  3. [3]
    In his application for leave to appeal, the applicant specifies all three sentences as the subject of his application although the stated grounds appear to refer only to that for the State offence.  The grounds are specified as:

“(a) No reasons were given for the [section] 13A discount on my sentence; and/or

  1. (b)
    That in all the circumstances the sentence imposed upon me is manifestly excessive.”
  1. [4]
    The first of those grounds refers to the reduction in the sentence for the State offence by the operation of s 13A of the Penalties and Sentences Act 1992 (Qld).  The sentencing judge said that but for the applicant’s cooperation which engaged s 13A, he would have imposed a head sentence of 10 years imprisonment with a parole eligibility date after four years.  There was a similar reduction of the sentences for the Commonwealth offences, pursuant to the since repealed s 21E of the Crimes Act .  The sentences which would have been imposed but for the operation of s 21E were in each case four years with a recognizance release order after 21 months.

Facts and circumstances of the offences

  1. [5]
    The offences were committed by the applicant as a director of a company which was a large importer and retailer of household goods.  There were two other directors, each of whom was charged with the same offences.
  2. [6]
    The company was part of a group which had carried on business for many years before, in about 2005, experiencing liquidity problems.  In 2007 the directors effected a restructure of the business, dividing it into two groups of companies which can be called here the A group and the B group.  The effect of the restructure was to move the significant assets and income to the B group and to leave the A group with the significant liabilities and expenses.  But the restructure had little practical effect on the day to day operation of the businesses and their funds were paid from the one bank account.
  3. [7]
    The applicant supervised the staff which managed the finances of the two groups.  In conjunction with another of the directors, the applicant regularly dealt with Westpac Banking Corporation on behalf of the B group and with the Australian Taxation Office on behalf of both groups.  There were monthly management accounts for all companies in the two groups and the directors were also provided with daily cash flow summaries, so that the applicant was aware at all times of the poor financial state of the A group.
  4. [8]
    In September 2007 the applicant approached Westpac seeking a loan to a company within the A group of $13 million.  The applicant knew that if Westpac was aware of the true financial state of the A group, and in particular the level of its debt, the loan would not be agreed.  The applicant therefore misrepresented to Westpac the A group’s true position in a number of ways.  The proposed borrower was owed large sums by other companies in the A group which, the applicant represented, could repay them, knowing that to be false.  He provided Westpac with misleading data showing the extent of the group’s sales, but not its losses.  He misrepresented that the proposed borrowing would be used to acquire $10 million worth of inventory from the B group, when the true intention of the directors was that the borrower would acquire inventory only gradually.  He thereby misrepresented the value of the borrower’s assets and the security which Westpac was to obtain by a charge over the assets of the A group.
  5. [9]
    Relying on these misrepresentations, Westpac agreed to lend the sum of $13 million.  It would not have done so had it known the truth.  The loan was made on 13 November 2007.  The funds were not used for the purposes which had been represented to Westpac.  Instead they were transferred almost immediately to other companies in the A group, including a transfer of $10.3 million to a particular company which used those funds to pay existing debts, some of which had been overdue for well over 12 months.
  6. [10]
    The State offence was alleged to have been committed on or about 13 November 2007, which was the date of that loan.  By s 408C(1)(d) of the Criminal Code, a person who dishonestly gains a benefit or advantage, pecuniary or otherwise for any person commits the crime of fraud.  The benefit was the Westpac loan and the beneficiary was the borrower company.  At that time s 408C(2)(d) provided that if the benefit was of a value of $5,000 or more, the offender was liable to imprisonment for 10 years.[1]
  7. [11]
    The Commonwealth offences were committed in July 2008.  The company which is relevant to these charges was that which had borrowed from Westpac.  It then had a balance sheet deficit of $15 million, continuing losses and a negative cash flow.  The applicant was aware of these circumstances and, in particular, knew that the company was insolvent.
  8. [12]
    In May 2008 the applicant informed Westpac that the company required an increase in its finance facility and he provided Westpac with a series of financial projections.  In June 2008 the applicant advised Westpac that there was no reason to question the ability of other members of the A group to pay their debts to the subject company, which was untrue because, as the applicant then knew, all of the A group companies were insolvent.
  9. [13]
    On 3 July 2008 Westpac provided the company with an increase of $1.5 million on one facility and an increase of $2 million upon another facility and these amounts were drawn down by the company in the following weeks.  Those two transactions became the subject of the two Commonwealth offences.
  10. [14]
    Westpac ceased funding the company in November 2008.  In December of that year it appointed accountants to investigate the company’s position.  After unsuccessful attempts by the directors to raise finance from Westpac and other sources, the directors placed the two groups into voluntary administration in April 2009.  At that stage the groups had liabilities which included more than $25 million from deposits paid by customers for unfulfilled orders.  The companies went into liquidation in the following month.  As at the date of commencement of the administration, the total amount owing on the facilities the subject of the State offence was in excess of $13 million.  The amounts owing upon the facilities the subject of the Commonwealth offences also exceeded $13 million, although most of that predated and did not result from those offences.  At the time that the applicant was sentenced, Westpac had not recovered any of these debts and no customer deposits had been refunded.
  11. [15]
    After a committal hearing at which witnesses were crossexamined, the applicant was committed for trial on 31 March 2014.  The indictment was presented in September 2014 and a trial was set down to commence in the District Court on 17 August 2015.  The applicant indicated his intention to enter pleas of guilty following discussions with the prosecution that commenced in late July 2015.  Ten days prior to the scheduled trial of the applicant and the other directors, the court was informed that the applicant would plead guilty to these charges and he did so on 24 August 2015.

The sentencing reasons

  1. [16]
    The sentencing judge began by noting that the applicant was 58 to 59 years of age at the time the offences were committed and that the applicant had no criminal history and, apart from these offences, a good employment record.  He noted that the applicant’s plea of guilty had saved considerable time and expense.  But he also commented that these were late pleas entered only after a lengthy committal hearing and two pretrial hearings.  In those circumstances, his Honour said, the pleas of guilty were not indicative of remorse.
  2. [17]
    After setting out the facts of the offending, largely as I have done here, the sentencing judge noted that the offending involved very large amounts of money, although that was not the only relevant consideration.  He accepted that the applicant had not been “the instigator of these offences” and that he had been “subservient” to the other directors.  Nevertheless, his Honour remarked, the applicant had played a “vital and intrinsic role”.
  3. [18]
    The prosecution submitted that the applicant had had a “beneficial interest” in the borrower company.  This was disputed and the judge found it unnecessary to resolve the question.  At that point in his reasons, the sentencing judge then made a critical finding, as to whether the applicant had been motivated by an objective of personal gain.  He said:

“There is no dispute that you had an interest in the company and that you acted fraudulently in an attempt to keep the company afloat.  Whether you had a beneficial interest in my view would … play little to no role in the determination of the ultimate sentence in this matter.  It is of relevance, however, and in my view significant that the monies obtained the subject of these charges [were] put back into the business to try and turn things around financially.  I note that this is not a case of you committing a fraud for the purpose of personal gain.  That places this behaviour in quite a different category to many of this nature that come before this court, and is an important point of distinction.”

(Emphasis added)

He continued:

“I have no reason to doubt that you intended or at the very least blindedly hoped the debts would be repaid, but there was precious little evidentiary foundation for that hope on your part.”

  1. [19]
    The judge referred to a report from a psychologist which was tendered in the applicant’s case and to which some reference was made in this court.  In this ninepage document, the author detailed the personal and professional life of the applicant before concluding with a statement of the author’s belief that “becoming involved in a large fraud in this manner is quite uncharacteristic for [the applicant], who presents as a very ethical individual with quite conservative moral values.”  The report was more in the nature of a written submission than an expression of a professional opinion.  There was no suggestion that the applicant committed the offences under some psychological disorder.  The sentencing judge correctly described it as amounting to not much more than “a recitation of events”.
  2. [20]
    The judge referred to the references which were tendered in support of the applicant’s case.  The applicant was married with adult children and enjoyed the continuing support of his family.  In the judge’s view, the applicant was “a most unlikely person to repeat this type of offending conduct” and for that reason “personal deterrence [was] of little or no relevance.”  It was also noted that in consequence of the failure of these companies, the applicant had become bankrupt.
  3. [21]
    The judge referred to s 17A of the Crimes Act , which provided that a court was not to pass a sentence of imprisonment on any person for a federal offence unless the court, having considered all other available sentences, was satisfied that no other sentence was appropriate in all the circumstances of the case.  His Honour concluded that no sentence other than one of imprisonment was appropriate.
  4. [22]
    His Honour received both written and oral submissions from the prosecution and the defence and was referred to several cases which were said to be comparable sentences for the State offence.  In the submissions for the prosecution, he was referred to the relevant provisions of the Crimes Act which affected the sentences for the Commonwealth offences and to the ways in which those sentences and that for the State offence could be related to each other.  One of those options, the submission suggested, was for the three sentences to be made concurrent with one another.  The applicant’s then counsel agreed that this was an option.
  5. [23]
    By a written undertaking dated 21 August 2015, pursuant to s 21E of the Crimes Act and s 13A of the Penalties and Sentences Act , the applicant undertook to cooperate with the Australian Securities and Investments Commission and the Commonwealth Director of Public Prosecutions to give evidence against one or both of his codirectors and to otherwise cooperate with the prosecution of them.  The trial of those directors was imminent.  After he was sentenced, one of those directors was tried and the applicant gave evidence according to his undertaking in the prosecution case.  That director was convicted and, at the time of the hearing in this court, was about to be sentenced.  The other director is yet to be tried and, in that respect, the applicant remains bound by his undertaking.
  6. [24]
    At the sentence hearing, counsel then appearing for the applicant submitted that before an allowance was made for the cooperation under s 13A, the appropriate head sentence would be lower than (the maximum of) 10 years if that offence was considered “on its own”.  Counsel then added that the Commonwealth offences would not “take your Honour beyond a 10 year head sentence for that fraud,” at which point his Honour interrupted to say that it was his view that, without the s 13A considerations, a head sentence of 10 years would have been an appropriate sentence.  This indicated the course that his Honour was to take, which was to increase the head sentence for the State offence because of the criminality involved in the Commonwealth offences, because the three sentences were to be served concurrently.  In his sentencing reasons, his Honour said:

“It has been submitted on your behalf, and as I understand it the Crown really doesn’t disagree with the approach, that I should take into account the full criminality of your conduct for the three offences when determining the sentence for the most serious of the charges, that is, obviously, count 1.  And I agree with that approach, and I will adopt that course.”

  1. [25]
    His Honour then imposed the sentences, finishing with an explanation, in relation to those for the Commonwealth offences, which was apparently made to meet the requirements of s 16F of the Crimes Act .  He said that:

“In relation to those charges you have been sentenced to two years and eight months, but I have ordered that you be released after serving 10 months of that period of time, and you will serve the balance of that sentence in the community.  That is for the purpose of allowing you to rehabilitate and to move on with your life.  Were you to breach the condition of the bond into which I’ve ordered that you must enter, then various penalties or consequences may flow …”.

  1. [26]
    However under these orders, in fact the applicant was not to be released after 10 months from the commencement of his sentences, but only after being released on parole having served at least two years and four months.  The orders for release under the sentences for the Commonwealth offences conflicted with the parole eligibility date fixed under the other sentence.  At least for that reason there was an error by the sentencing judge.
  2. [27]
    Beyond declaring what sentences would have been imposed but for the applicant’s undertaking of cooperation, his Honour said nothing about the quantification of the reductions in the sentences.  The sentencing judge said nothing, for example, of the relative importance of the evidence of which the applicant had undertaken to provide or of the degree of personal risk to the applicant or any other person from that cooperation.  Section 13A(7) requires a sentencing judge to state (in closed court) that the sentence has been reduced under the section and the sentence which the court would otherwise have imposed.  It contains no specific requirement for a judge to explain the reasons for the quantification of the reduction.  In some cases it will be necessary for a judge to explain how the reduction in the sentence was quantified.  The absence of reasons in this case does not warrant the setting aside of this sentence.  The reduction which was made was substantial, thereby indicating that the judge was satisfied that the applicant’s cooperation was likely to be valuable and to put him at some personal risk.

The structure of the orders

  1. [28]
    The sentencing judge had to consider whether all or some of the sentences were to be served concurrently or cumulatively.  Those considerations were complicated by the need to apply two distinct statutory schemes, each of which limited the available options in the present case but in different ways.  As McPherson JA said in R v Weiss ,[2] “sentencing on a combination of federal and state offences is a notoriously difficult task.”
  2. [29]
    Under the Penalties and Sentences Act , cumulative terms may be imposed by ordering, pursuant to s 156, that the imprisonment for one offence be directed to start from the end of the imprisonment for another offence.  But in R v McMillan [3] Fryberg J (with whom McPherson and Jerrard JJA agreed) said that arguably the power to order accumulated imprisonment granted by s 156 is insufficient to order a sentence for a state offence to commence on the completion of a sentence for a federal offence, because the word “offence” in the section may not refer to a federal offence.  Fraser JA expressed a similar doubt in R v NK .[4]  In the present case the prosecution submitted to the sentencing judge that the sentence for the State offence could not be imposed cumulatively upon the other sentences and the defence did not suggest otherwise.
  3. [30]
    On the other hand, it was possible to make the sentences for the Commonwealth offences cumulative upon that for the State offence, although only partly cumulative.  By s 19, the Crimes Act specifically provided for the accumulation of federal and state sentences in a case such as the present.  Section 19(3) relevantly provided as follows:

“(3) Where:

  1. (a)
    a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and
  1. (b)
    the person is sentenced to imprisonment for more than one of the offences;

the court must, by order, direct when each federal sentence commences but so that:

  1. (c)
  1. (d)
    if a non-parole period applies in respect of any State or Territory sentences––the first federal sentence to commence after the end of that nonparole period commences immediately after the end of the period.”
  1. [31]
    In R v Daswani ,[5] this court agreed with the Victorian Court of Criminal Appeal in R v O'Brien[6] that a sentence imposed under the Crimes Act cannot be ordered to be cumulative upon a state sentence “although that can be effectively achieved by the sentencing court fixing the commencement date of the sentence under s 19(3) of the Crimes Act 1914 (Cth) after the applicable nonparole period imposed on the State offences.”[7]  If the head sentence for the State offence was to exceed three years, the “nonparole period” for that sentence was defined by the parole eligibility date.  That was a date which, if not fixed by the court, would be the date after the prisoner had served half of the sentence.[8]
  2. [32]
    The sentencing judge apparently considered that the three sentences should commence immediately, rather than those for the Commonwealth offences commencing at a later date, because of the way in which he had arrived at the sentence for the State offence.  In other words, because the sentence for the fraud count was inflated for the criminality in all three counts, the three sentences were made concurrent.
  3. [33]
    The course which his Honour took is not uncommon, outside the present context where there are both state and federal offences.  In R v Nagy [9] Williams JA (with whom Jerrard and Muir JJA agreed) said:[10]

Where a judge is faced with the task of imposing sentences for a number of distinct, unrelated offences there are a number of options open.  One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality.  But that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole, or where the imposition of such a sentence would give rise to an artificial claim of disparity between cooffenders.  That list is not necessarily exhaustive.  Such considerations may mean that the other option of utilising cumulative sentences should be adopted.”

  1. [34]
    It is important to recognise that the approach which was employed is to be adopted only as a more practical alternative to the imposition of cumulative sentences.  It may be adopted for reasons of convenience and simplicity, as McMurdo P described in R v Bowditch:[11]

“Judges have a discretion whether to impose cumulative or concurrent sentences or partcumulative and partconcurrent sentences … Generally, judges adopt one of two approaches.  They may impose an increased head sentence, usually on the most serious offence, to reflect the totality of all the offending so as to avoid the possible unintended complications and consequences which sometimes flow from the combination of cumulative sentences and complex sentencing and related statutes.  On the other hand, judges may impose a cumulative sentence or a series of cumulative sentences, moderated to reflect the totality principle discussed in Mill v The Queen.  Either method is apposite provided the judges make clear the method adopted and the reasons for it; that the overall effect of the sentence is not manifestly excessive; and that the sentences do not result in double punishment for the same acts.  Judges often tend to adopt the former approach as its effect tends to be more easily comprehended and it is less prone to unintentionally offend the totality principle.”

(Footnotes omitted)

  1. [35]
    Because this approach is adopted as a more practical alternative to the accumulation of sentences, it ought not to result in a longer period of imprisonment or a longer nonparole period than that which would result from the imposition of cumulative sentences.  Yet that is what occurred in the present case and in a practical sense, it was inevitable that it would occur.  That was because of the practical inevitability that (a) the sentences for the Commonwealth offences would be no more than a half of that for the State offence and (b) the parole eligibility date for the state sentence would be short of the half way mark.
  2. [36]
    The term of 10 years imprisonment which the sentencing judge would have imposed (but for s 13A) would have been excessive for the State offence.  As the judge recognised in his sentencing reasons, this was not an example of the worst category of this offence, at least because the applicant had not been motivated by personal gain.  By inflating what would have been the appropriate sentence to the maximum of 10 years, the sentencing judge would have imposed a punishment for the Commonwealth offences beyond that which was permitted by the Crimes Act .  That Act limited the extent to which a federal sentence could be imposed cumulatively upon a state sentence and that limitation was not to be circumvented by imposing an excessive sentence in the exercise of the sentencing discretion under a distinct statutory regime.  That sentence of 10 years and the parole eligibility date after four years were adjusted under s 13A.  But it can be seen that the error in inflating the original term affected the outcome.
  3. [37]
    It follows that the sentence for the State offence must be set aside.  Further the sentences for the Commonwealth offences must be set aside because if the applicant is to be resentenced upon the basis that his nonparole period will be more than 10 months, the present orders that he be released after 10 months would be futile.

Resentence

  1. [38]
    The fraud offence was very serious for the large amount of money involved.  This suggests that the appropriate head sentence before consideration is given to s 13A would be something approaching the maximum of 10 years.  But as already discussed, a very significant mitigating feature was the fact that the applicant was not acting for personal gain.  As the sentencing judge said, that feature put this offence “in quite a different category to many of this nature” and was “an important point of distinction.”  The other significant mitigating circumstances were the plea of guilty and the absence of any criminal history.  As to the guilty plea however, it was a late plea and was not accompanied by remorse, according to the sentencing judge’s findings.
  2. [39]
    In this resentencing of the applicant, he is to be given credit for his cooperation in giving evidence at the trial of one of the other directors as has occurred since the original sentence.
  3. [40]
    In these circumstances, apart from s 13A, the appropriate sentence for the fraud offence would have been of seven and a half years imprisonment with a parole eligibility date after two and a half years of that term.  He is then to be given a reduction under s 13A.  When he was originally sentenced it was envisaged that he would be giving evidence at the one trial of the other directors.  As things have happened, it remains the case that he must give evidence at the trial of one of them.  His evidence at the recently completed trial counts in his favour as past cooperation and not through s 13A.  The value of the s 13A undertaking remains significant and warrants a substantial reduction in both the head sentence and his nonparole period.  In my view they should be reduced so that he is sentenced to a term of five and a half years imprisonment with a parole eligibility date fixed at onethird of that term, or in other words after 22 months.
  4. [41]
    The Commonwealth offences were distinct instances of dishonesty by which not only Westpac but very many other creditors were affected.  These two offences are so closely related that it is appropriate that the sentences for them be concurrent with one another.  But they are so distinct from the fraud count that the applicant should be required to serve some further term of imprisonment in recognition of their seriousness.  The maximum term for each is five years imprisonment.  Again there are the same mitigating circumstances including, most importantly, the absence of any motive of personal gain.  The amounts were large although not as large as that in the fraud case.  As I have discussed, the amount of the head sentences here will not have any practical impact.[12]  The practical effect of these sentences will be upon the time which the applicant must spend in custody.
  5. [42]
    Since the original sentence, s 21E has been repealed but effectively relocated into the new s 16AC of the Crimes Act .[13]  Both the sentence and the nonparole period should be reduced for the same reasons that applied to the reduction under s 13A.  But for the operation of s 16AC I would have imposed terms of two years imprisonment on each count, with a nonparole period of nine months.  Those periods should be reduced under s 16AC to head sentences of 16 months with a nonparole period of six months.
  6. [43]
    Consequently I would reduce the overall length of the applicant’s imprisonment from the present seven years to five and a half years but with the result that he would be released no earlier than the present parole eligibility date fixed by the sentencing judge.[14]  I agree therefore with the sentencing judge in his ultimate conclusion as to how much time the applicant should be required to be in custody.  As should be apparent, the errors in the orders made by the sentencing judge were in the structuring of the sentences.

Orders

  1. [44]
    I would order as follows:
  1. (1)
    Grant leave to appeal against the sentences imposed on 2 October 2015.
  1. (2)
    Allow the appeal and set aside the orders made.
  1. (3)
    Order that the appellant be sentenced upon count 1 on the indictment to a term of imprisonment of five and a half years with a parole eligibility date of 2 August 2017.
  1. (4)
    Declare that that sentence has been reduced pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) for the reason that the appellant has undertaken to cooperate with law enforcement agencies in other proceedings and that the sentence which would have been imposed, but for this reduction, would have been a term of seven and a half years with a parole eligibility date of 2 April 2018.
  1. (5)
    For each of counts 2 and 3 upon the indictment the appellant be sentenced to a term of 16 months imprisonment with those sentences to be served concurrently with each other and to commence on 3 August 2017.
  1. (6)
    On counts 2 and 3 the appellant be released after serving six months upon entering into a recognizance in the sum of $5,000 on condition that he be of good behaviour for a period of five years.
  1. (7)
    Declare that the orders made in (5) and (6) are being reduced because the appellant has undertaken to cooperate with law enforcement agencies in proceedings relating to an offence and the sentences which would have been imposed but for that reduction are, upon each count, two years imprisonment to commence on 2 August 2017 with an order for release of the appellant after serving nine months upon entering into that same recognizance.
  1. [45]
    NORTH J:  I have read the reasons for judgment of Philip McMurdo JA.  For the reasons given by his Honour I agree with the orders proposed.

Footnotes

[1] The offence was committed prior to the increase in that maximum penalty to 12 years by Act 55 of 2008 s 71(1) and (2).

[2] [2000] QCA 262.

[3] [2005] QCA 93 at [22].

[4] (2008) 191 A Crim R 483, 498 [78]; [2008] QCA 403 at [78] (Muir JA and Fryberg J agreeing).

[5] [2005] QCA 167; (2005) 53 ACSR 675.

[6] (1991) 57 A Crim R 80.

[7] R v Daswani [2005] QCA 167 at [10]; (2005) 53 ACSR 675, 678.

[8] Corrective Services Act 2006 (Qld) s 184(2).

[9] [2004] 1 Qd R 63; [2003] QCA 175.

[10] [2004] 1 Qd R 63, 72-73; [2003] QCA 175 at [39].

[11] [2014] QCA 157 at [2].

[12] As they can commence no later than 22 months into the state sentence and having regard to the requirement for reduction for the applicant’s co‑operation in relation to other offenders, head sentences of as much as 44 months could not be imposed.

[13] By the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) s 3 and sch 7 item 5.

[14] The 22 month period for eligibility for parole for the State offence and a further six months for the Commonwealth offences.

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Editorial Notes

  • Published Case Name:

    R v Armstrong

  • Shortened Case Name:

    R v Armstrong

  • MNC:

    [2016] QCA 243

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, North J

  • Date:

    27 Sep 2016

Appeal Status

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