Regina v Darren ARMSTRONG [2000] NSWCCA 16

New South Wales Court of Criminal Appeal

CITATION : Regina v Darren ARMSTRONG [2000] NSWCCA 16 FILE NUMBER(S) : CCA 60760/98 HEARING DATE(S) : 14/2/2000 JUDGMENT DATE : 14 February 2000

PARTIES : Regina Darren Armstrong JUDGMENT OF : Sully J at 1; Carruthers AJ at 25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0390 LOWER COURT JUDICIAL Solomon DCJ OFFICER :

COUNSEL : L.M.B. Lamprati - Crown J.S. Andrews - Appellant SOLICITORS : S.E. O'Connor - Crown T.A. Murphy - Appellant

LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 (NSW) CASES CITED: Cartwright (1989) 17 NSWLR 243 Henry (1999) 46 NSWLR 346 DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60760/98

SULLY J CARRUTHERS AJ

14 February 2000 REGINA v Darren ARMSTRONG

JUDGMENT

1 SULLY J: This is an application by Mr Darren Armstrong for leave to appeal against a sentence of penal servitude which was imposed upon him in the District Court at Newcastle by his Honour Solomon DCJ. On 29 October 1998, Mr Armstrong was arraigned in the District Court at Newcastle and before his Honour Job DCJ. He was charged with having robbed, on 9 August 1998, one Maxwell Lewis of $311.20, the property of the Neath Ampol Service Station, he then being armed with an offensive weapon, namely a syringe. Upon such arraignment the applicant pleaded guilty. In due course he stood for sentence before Solomon DCJ on 27 November 1998. His Honour convicted the applicant and sentenced him to penal servitude for six years which his Honour divided equally between minimum and additional terms. 2 The crime of robbery while armed with an offensive weapon is a contravention of s 97(1) of the Crimes Act 1900 and it attracts upon conviction a statutory maximum of penal servitude for twenty years. 3 The relevant facts are as follows. Shortly before 11am on Sunday 9 August 1998, the applicant entered the shop forming part of the premises of the Ampol Service Station at Cessnock Road, Neath. Both proprietors of the shop were then present on the premises and were behind the counter preparing for the day's trading. The applicant entered the premises and walked around the side of the service counter in the premises. At the entrance of the service counter the applicant came face to face with the male proprietor. The applicant began to yell at the proprietor demanding money. The applicant was at that time carrying in his left hand a syringe and this fact was obvious to the proprietor. 4 It is not clear, as the evidence stands, whether in fact the syringe had in it fresh blood, or material of that kind. The evidence is in such a state that it is at least possible that it was, as the applicant in due course told the police he thought to have been the case, simply a dirty syringe. The male proprietor having seen the syringe, and having been accosted in that fashion by the applicant, struggled with the applicant in the vicinity of the counter. During the course of that exchange, the applicant punched the proprietor who, in his turn, seems to have been concentrating on holding away from himself the applicant's hand holding the syringe. 5 The applicant eventually broke free and made his way to the till, all the time yelling at both the proprietor and his wife, then present, instructions of one kind and another. Eventually he pushed the female proprietor away from the till, threatening her with the syringe, before taking from the till money totalling $311.20. All that having been done, the applicant ran from the premises and was not seen again until, some five days later and on 14 August, he was spoken to by the police in connection with another matter. He was taken to the Wallsend Police Station and interviewed; and he promptly admitted his involvement in the robbery that I have previously described. 6 The applicant told the police that he was an intravenous drug user; that he had been, in effect, desperate for access to drugs at the time he committed the robbery; and that he had been unable then to think of any other way to get quickly the money that he needed in order to acquire the drugs. 7 It is not, I think, necessary to dilate yet again upon the objective gravity of any robbery of the kind that I have described. Time and time and time again, both before and after the recent guideline judgment published by this Court in the matter of Henry (1999) 46 NSWLR 346, it has been made as clear as words can do that armed robbery of any kind is one of the most serious offences in the criminal calendar. 8 All of these things were, of course, well within the contemplation of the learned sentencing Judge. Within his Honour's contemplation also were a number of not insignificant subjective considerations. His Honour dealt with them in a way that can be summarised as follows: