New South Wales District Court CITATION: Regina v Brian Armstrong [2007] NSWDC 359 JUDGMENT DATE: 12 October 2007 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ at 1 DECISION: Sentenced to imprisonment for 5 years with a non-parole period of 2 years and 6 months. CATCHWORDS: Criminal law - Sentence - Aggravated break and enter and commit serious indictable offence (AOABH) - 50 year old offender - First time in custody - Plea of guilty at earliest opportunity - Standard non-parole period - Remorse - Special circumstances LEGISLATION CITED: s112(2) Crimes Act 1900 s21A Crimes (Sentencing Procedure) Act 1999 PARTIES: Regina Brian Armstrong FILE NUMBER(S): 07/51/0100 SOLICITORS: Ms Mudge for the NSW DPP Mr Hegney for the offender SENTENCE 1. Brian Armstrong is before me for sentencing. He committed a serious crime. The crime he committed was contrary to s 112(2) of the Crimes Act 1900 . It is called aggravated break and enter and commit serious indictable offence. 2. The particulars of the charge are that on 17 January 2007 he broke and entered a dwelling house of Charles Kennedy. Then he committed a serious indictable offence, namely assaulting Charles Kennedy and causing him actual bodily harm. This crime was committed in circumstances of aggravation in that Brian Armstrong knew that there was someone in the house at the time that he broke in. Mr Armstrong has pleaded guilty before a magistrate and he confirmed that plea today before me. 3. The first thing is to note and record briefly what happened in this case. On 17 January 2007 Mr Armstrong went to Mr Kennedy's house in Tenterfield. He went there to collect money that was owing to him. He went with a friend. When they arrived at Mr Kennedy's house, Mr Armstrong drove in and parked near the garage. He was warned by his companion not to do anything wrong. He did not heed that warning. He got out, went to the back of the house and pulled the screen door open, using enough force to make one of the hinges come away. Mr Armstrong gave evidence before me, and I accept, that the screen door may have been old. But nevertheless he pulled it with sufficient force for one of the hinges to come away. He then walked into the house. He grabbed Mr Kennedy by the shirt and pulled him outside. Mr Kennedy said " I don't have any money, all I have is fifty dollars in my bank and that has to last me till next week ". Mr Armstrong's response was " Well fucking get it ". 4. Mr Armstrong then proceeded to take his debt recovery seriously into his own hands. He hit Mr Kennedy to the back of his head with his fist. Not only that, he used a copper pipe which was lying around. He then hit Mr Kennedy again with the copper pipe, this time under his left ribs and his left side lower back and then his left and right forearm. He then kicked him in the groin. He was about to throw a plastic table at Mr Kennedy when Mr Kennedy extricated himself, got back into the house, picked up an axe and returned with that, which was sufficient to drive Mr Armstrong away. 5. Mr Kennedy called the police who came and saw a bump on the back of his head, a long red mark and bruising under his left ribs and a mark and bruising on his left lower back as well as a thin red mark and a large amount of swelling on the left forearm and red marks on the inside of the right forearm. He was treated by ambulance officers and found to have a haematoma to his right forearm and head and abrasions on his stomach and back. He was taken to Tenterfield Hospital for observation. 6. Mr Armstrong was arrested and said that he had gone to Mr Kennedy's place for the purpose of speaking with him about a thousand dollars owed to him. Mr Armstrong was bailed on the day of the offence but went back into custody on 15 February 2007 and has been in custody since that date related only to this matter. 7. Mr Armstrong has a criminal record. It discloses first his age. He was born on 2 June 1957 so that he is presently aged 50. Many years ago, in 1979, he has convictions for assault which are sufficiently far in the past to place little weight on them. In 1993 he was convicted of malicious damage and in 1998 of stealing and possessing implements capable of entering a car. These matters were dealt with by Local Courts. He has a record in Queensland which includes offences in each of 2002, 2003, 2004 and 2005. They include creating a disturbance on licensed premises and obstructing a police officer, wilful destruction of property and, significantly, the 2004 conviction was for threatening violence, discharging a firearm or some other act and wilful damage. He received sixty hours community service from the Queensland District Court sitting at Maroochydore. 8. The injuries which were caused to Mr Kennedy I have noted but in this case Mr Kennedy has provided a victim impact statement. Attached to that is a letter from a psychologist Dr Richard Goddard dated 30 April 2007. Mr Kennedy's statement is dated 28 May 2007. Mr Kennedy attended these proceedings before me today. He read out his victim impact statement. Because it is on the record I do not propose to reproduce it in full but for the purposes of these remarks I can say that some of the consequences of the attack, in addition to the physical injuries which I have described, include sleep deprivation, nightmares and fear of reprisals. His health is declining, his blood pressure has become destabilised. He is constantly startled, his lifestyle is affected. He no longer plays bowls, he feels uncomfortable going to the cinema, he has a dread of going out at night. He is on a number of medications for his blood pressure and nerves. He says that he would not be able to cope with his life without these medications. He has limited use of his left arm. 9. The report from Dr Goddard notes that he (Dr Goddard) had been treating Mr Kennedy in his attempts to stop smoking. The assault which occurred in January this year by Mr Armstrong brought about a resumption of smoking by Mr Kennedy. Dr Goddard noted that Mr Kennedy consistently appeared more anxious after the attack. He thought that there were some symptoms consistent with a diagnosis of post traumatic stress disorder. 10. A Probation and Parole Service report has been tendered. It canvasses merely the options available for sentencing. It assesses Mr Armstrong as unsuitable for both a Community Service Order and a Periodic Detention Order. I should add that I regard either of those sentencing options as too lenient in any event. 11. There is very little subjective material or personal information about Mr Armstrong. There was tendered a letter which became exhibit 1, addressed to Mr Kennedy and the court, expressing Mr Armstrong's deep sorrow for the stress he has caused. That by itself in my opinion would have carried little weight but Mr Armstrong decided to go into the witness box. 12. In the witness box it is quite clear that Mr Armstrong appreciates the seriousness of the crime which he has committed: he left me in no doubt about that. In addition he apologised for the pain and suffering which he had caused to Mr Kennedy and expressed his deep sorrow for what he had done. I regarded that as a genuine expression of remorse and contrition, particularly since Mr Kennedy was present in court when Mr Armstrong said that. Mr Armstrong also gave evidence about the debt which he said he was owed by Mr Kennedy. In addition he gave some evidence which I regard as irrelevant concerning the background of that debt. I place no weight upon the existence of the debt. At least, the only relevance of the existence of the debt is that it explains Mr Armstrong's presence at Mr Kennedy's house and it provides an explanation for his reaction when Mr Kennedy said he did not have the money. Otherwise I do not regard the existence of any debt owed by Mr Kennedy to Mr Armstrong as in any way mitigating Mr Armstrong's behaviour in attempting to recover the debt. I accept that he did not enter the house armed. The copper pipe which he described as small was lying nearby and he picked it up. 13. This is his first time in gaol. He has spent part of that time in segregation by the Corrective Services Department. He is allocated frequently cells which he occupies with other prisoners who are at risk for one reason or another. Mr Armstrong has the support of his family, a sister and a brother and his sister's husband. They would have been here today apart from a miscommunication. Mr Armstrong has pleaded guilty at the earliest opportunity. 14. Mr Hegney who appears for Mr Armstrong acknowledges the seriousness of the offence, as indeed his client does, and submits that a sentence in the region of two years with a non parole period of about one year might be in order. For reasons which I will give I do not regard that as an appropriately severe enough sentence. 15. This was a very serious crime. Parliament created the offence and attached a maximum of twenty years imprisonment to it. What Mr Armstrong did was essentially to invade Mr Kennedy's home and then attack him viciously with a weapon, leaving him not only with physical injuries but significant consequences which are still with him today. 16. So serious does Parliament regard this offence that it has attached a standard non parole period of five years. Strictly that is not applicable because this is a plea of guilty, nevertheless courts are encouraged to use the standard non parole period as a guidepost or as a reference point. The legislation provides that courts must give reasons for departing from the standard non parole period and courts are encouraged to give those reasons even in the event of a plea of guilty. Those reasons should be in accordance with s21A of the Crimes (Sentencing Procedure) Act 1999 . 17. I propose to depart from the standard non-parole period and to sentence Mr Armstrong to a penalty which will be less than that. The two main reasons for departing from the standard non-parole period are Mr Armstrong's plea of guilty and what I regard as his genuine expression of remorse made from the witness box. The crime itself also I regard as being slightly below the middle of the range of objective seriousness. This is because Mr Armstrong went to Mr Kennedy's house in order to collect a debt and reacted very badly when he discovered that he was not going to be paid. He did not go armed but he made use of a weapon or an item as a weapon which was there at the time. To the extent that the home invasion and attack were not planned as such, nor was the use of the weapon contemplated in advance, those factors reduce the severity of the crime to, as I said, a little below the middle of the range of objective seriousness. Nevertheless I regard, as I said, the offence itself as very serious. 18. Taking everything into account I regard a head sentence, that is the overall sentence, of five years as an appropriate length. I propose to fix a non parole period of two and a half years. I have taken into account in fixing a non-parole period which is only half of the overall length of the sentence, the fact that this is Mr Armstrong's first time in custody and that he is serving at least some of that time in segregation. 19. Would you stand up Mr Armstrong. I sentence you to imprisonment for five years to date from today 12 October 2007 and to expire on 11 October 2012 - I apologise, it is backdated. I sentence you to imprisonment for five years to date from when you went into custody for this offence, namely 15 February 2007. That overall five year term will expire on 14 February 2012. I fix a non parole period of two and a half years to date from 15 February 2007 and to expire on 14 August 2009. There will be an additional term or the balance of the term of two and a half years to commence on 15 August 2009 and to expire on 14 February 2012. For the reasons which I have given I regard this case as providing special circumstances for the balance of the term exceeding one-third of the non parole period. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.