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The three applicants were sentenced by Jackson J for the offence of manslaughter on 19 February 2020. The sentence hearing on that date was the second time the applicants had been sentenced. On re-sentence, Jackson J imposed sentences which were to commence from 19 February 2020. Each applicant sought leave to appeal against sentence on the basis that his Honour erred in failing to take adequate account of non-declarable pre-sentence custody in fixing the head sentence. Stephen Armitage appealed against the factual basis of the sentence, the main contention being that the learned judge erred by punishing the applicant for torturing the deceased, when that count had been discontinued by the Crown. The Court also considered whether a sentence substituted under s 668F(2) Criminal Code 1899 is imposed as and from the date of the original sentence.
Sofronoff P and Morrison JA and Flanagan J
31 August 2021
The applicants were sentenced by Jackson J for the offence of manslaughter on 19 February 2020. His Honour imposed the following sentences, which were to commence on that date (at ):
(a) Stephen Armitage was imprisoned for a period of 10 years. Pursuant to s 159A Penalties and Sentences Act 1992 (“PSA”), 1237 days of pre-sentence custody were declared. A serious violent offence declaration was made.
(b) Matthew Armitage was sentenced to imprisonment for a period of eight years. 1237 days of pre-sentence custody were declared. A serious violent offence declaration was made.
(C) William Dean was sentenced to a period of 10 years. 370 days of pre-sentence custody were declared. The conviction was declared a conviction for a serious violent offence.
The circumstances of the manslaughter were as follows. The deceased, Shaun Barker, was imprisoned in an esky for an extended period of time without food and water, except water laced with a dangerous drug. He was also subjected to a number of serious assaults. The protracted mistreatment of the deceased was committed in an attempt to secure information from him in furtherance of a drug enterprise. .
The evidence led at trial (although incapable of supporting a conviction of murder) was sufficient to establish that the manslaughter was committed in the prosecution of that unlawful purpose, and that the unlawful killing was a probable consequence of the prosecution of that purpose. .
The Court of Appeal referred to its factual findings and reasoning set out in R v Armitage and Armitage  QCA 149 and R v Dean  QCA 254.
Failure to take proper account of non-declarable pre-sentence custody
At the applicants’ original sentence (in 2018) following the trial, they were each sentenced to two years’ imprisonment for interference with a corpse. . By 19 February 2020, that sentence had expired: the applicants had each served their full two-year period. .
At re-sentence, the learned judge correctly identified that it would be appropriate to adjust the notional head sentences for manslaughter to take full account of that non-declarable two-year period. . His Honour sought to achieve this by subtracting two years from the notional sentences of each of the applicants. , .
The Court of Appeal held that this subtraction alone was not enough. Having decided to impose a serious violent offence declaration, to give proper effect to the full undeclared two years spent in custody required a further adjustment to the head sentence. The nature of the conceded error was explained by the Court as follows (–):
“When accounting for non-declarable pre-sentence custody where a serious violent offence declaration is made, it is necessary to reduce the head sentence to reflect the fact that, if the non-declarable pre-sentence custody formed part of the sentence, the defendant would be eligible for parole after serving 80 per cent of it.”
Having identified that the learned sentencing judge fell into error in exercising the sentencing discretion, leave to appeal was granted, each appeal allowed, and it fell to the Court of Appeal to re-sentence the applicants afresh. .
When do substituted sentences under s 668F(2) Criminal Code 1899 commence?
In re-exercising the sentencing discretion, two preliminary issues arose. The first concerned the date from which the substituted sentences were to commence. .
The power exercised by the sentencing judge on 19 February 2020 was the re-sentencing power conferred by s 668F(2) Criminal Code 1899 (“the Code”). . As a result, the issue of when the sentence was to commence turned upon the proper construction of that section, and in particular, the meaning of the phrase, “and pass such sentence in substitution for the sentence passed at trial”. .
That phrase, in s 668F(2), had never been squarely considered by the Court of Appeal. .
However, the Court was guided by the uniform approach taken by courts (here and interstate) to s 668E(3) of the Code, which uses the same term “in substitution”. . The Court observed, relevantly, that: “[s]ubstituted sentences under s 668E(3) have consistently been imposed as applying from the date of the original sentence”. . The Court continued that:
“Although the term ‘in substitution’ is not defined, there is no good reason why it should not have the same operation in s 668F(2) as it does in s 668E(3), so that the commencement date of the substituted sentence is either the date of the sentence which is quashed on appeal (s 668E(3)) or the sentence passed at trial (s 668F(2)).” .
Giving the words “in substitution” their ordinary meaning, the Court of Appeal considered that the substituted sentence should commence from the date of the original sentence because the sentence being substituted is the sentence passed at trial. .
The factual basis for re-sentencing
The second preliminary issue identified by the Court of Appeal concerned the factual basis upon which the applicants should be re-sentenced. .
Stephen Armitage submitted that it would be an error for the Court of Appeal to take into account (as the sentencing judge had) the acts and omissions constituting the torture count for which the Crown ultimately did not proceed. It was submitted that as Stephen Armitage had not been convicted of torture, he was presumed to be innocent of it, and that this presumption prevented the torture allegations from influencing his sentence for manslaughter. . To do so, it was submitted, would be to punish Stephen Armitage for an offence of which he was not convicted. .
Although the Court of Appeal agreed with the principle (established in R v De Simoni (1981) 147 CLR 383) that it should proceed on the basis that Stephen Armitage cannot be punished for the offence of torture of which he has not been convicted, the Court observed that the argument was based on the premise that the torture allegations did not relate to how the unlawful killing occurred. .
That premise was rejected by the Court. The Court observed that “the particulars of torture may constitute a relevant circumstance of the manslaughter by reason of the fact that those acts and omissions informed how manslaughter was a probable consequence of the prosecution of the common purpose”. .
Z Brereton of Counsel
Editor’s Note: This is an appeal against the decision in R v Armitage, Armitage and Dean (2020) 3 QR 375.