New South Wales Court of Criminal Appeal CITATION : R v Armstrong [2001] NSWCCA 33 FILE NUMBER(S) : CCA 60389/00 HEARING DATE(S) : 16/02/01 JUDGMENT DATE : 16 February 2001 PARTIES : Regina v Anthony John Armstrong JUDGMENT OF : James J at 1; Whealy J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0308 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER : COUNSEL : I Byrne - Appellant LMB Lamprati - Crown SOLICITORS : John Byrnes & Associates - Appellant SE O'Connor - Crown DECISION : Leave to appeal granted - appeal against sentence allowed - sentence quashed IN THE COURT OF CRIMINAL APPEAL No 60389/00 JAMES J WHEALY J Friday 16 February 2001 REGINA v ANTHONY JOHN ARMSTRONG JUDGMENT 1 JAMES J: Anthony John Armstrong has applied for leave to appeal against a sentence imposed on him in the District Court on 14 June 2000 by her Honour Judge Ainslie-Wallace after he had pleaded guilty to one count of conspiring to commit larceny. Judge Ainslie-Wallace sentenced the applicant to a term of imprisonment for three years, with a non-parole period of two years commencing on 31 May 2000. Her Honour back-dated the commencement of the sentence to allow for a period of fifteen days of pre-sentence custody. 2 Under s 117 of the Crimes Act the maximum penalty for larceny is imprisonment for five years. Conspiracy is a common law offence. The sentence for conspiring to commit a substantive offence is not necessarily limited to the maximum penalty that can be imposed for the substantive offence. Nevertheless, only in exceptional cases is it justifiable to impose a heavier sentence for conspiring to commit an offence than could have been imposed for the commission of the substantive offence. 3 It was alleged by the Crown that the applicant had entered into a conspiracy with three other persons, Gregory Walker, Steven Walker and Brett Kelly. The applicant and his alleged co-conspirators stood trial in 1999 on a charge of conspiring to commit robbery. At that trial the jury was unable to agree and the jury was discharged without returning a verdict in respect of any accused. During that trial the co-accused Gregory Walker absconded and he was still at large when Judge Ainslie-Wallace sentenced the applicant on 14 June 2000. 4 On 20 March 2000 the applicant and the co-accused Steven Walker and Brett Kelly were each indicted on charges of conspiring to commit robbery and, in the alternative, conspiring to commit larceny. Each pleaded not guilty to the first charge but guilty to the alternative charge and the Crown accepted the plea of guilty to the alternative charge in full discharge of the indictment. 5 The conspiracy to which the applicant, Steven Walker and Bret Kelly pleaded guilty was a conspiracy to steal a large quantity of cigarettes on 17 September 1998 from premises at Belfield. It was planned that the conspirators should gain entry to the premises by pretending to be police officers who had come to the premises to execute a search warrant. Unbeknown to the conspirators, conversations between them or some of them between 10 September and 17 September had been lawfully monitored and recorded by means of listening devices and telephone intercepts. When the conspirators went to the premises at Belfield on 17 September 1998 they were arrested. 6 In her remarks on sentence Judge Ainslie-Wallace described the offence of conspiracy committed by the applicant as objectively serious. There had been a number of parties to the conspiracy and there had been a considerable amount of planning. The object of the conspiracy was to steal a considerable quantity of cigarettes of substantial value. In furtherance of the conspiracy, the conspirators had obtained a fake search warrant form, which had been filled in, a hand gun which closely resembled a Police Service revolver and two genuine Police badges. Her Honour considered it was a circumstance of aggravation that the conspirators had agreed to impersonate police officers so as "to play on the trust reposed in police by members of the public." 7 On the hearing of this appeal no real objection was taken, or could have been taken, to her Honour's assessment of the gravity of the offence of conspiracy. It was conceded in the proceedings on sentence that the applicant himself had taken some important steps in the carrying out of the conspiracy. It was he who had obtained the blank fake search warrant form and it was he who had filled in the form. On the night of 17 September 1998 the conspirators had met at and departed from his home. As the vehicle in which the applicant was travelling approached the premises at Belfield, the applicant was holding a radio scanner for the purpose of intercepting any police radio messages. Furthermore, it had been agreed between the conspirators that the applicant should be the first person to enter the premises where the cigarettes were and would be the person who, in the guise of a police officer, would do the talking to the occupants of the premises. Consistently with the decision of the High Court in Savvas v. The Queen (1995) 183 CLR 1, the sentencing Judge could take account of events done in furtherance of the conspiracy in assessing the objective gravity of the applicant's criminality as a party to the conspiracy. 8 The first ground of appeal relied on by the applicant was that her Honour had erred in the finding she made about the role played by the applicant in the conspiracy, in that the finding made by her Honour was against the evidence and the weight of the evidence. 9 In pp 3 to 8 of her remarks on sentence her Honour addressed at length the question of what had been the applicant's role in the conspiracy. Her Honour noted the submissions made on behalf of the applicant that it was Gregory Walker who had conceived and planned the criminal venture and that the applicant's role in the conspiracy had merely been to carry out orders given to him by Gregory Walker. Her Honour noted that the Crown contended that the applicant had been a principal, equal in status to Gregory Walker. 10 The body of evidence on which a finding about the applicant's role in the conspiracy had to be made consisted of the transcripts of the various recorded conversations and evidence of the surveillance of the conspirators on 17 September from the time they left the applicant's home to the time they arrived at the premises at Belfield. Her Honour said she accepted that it was clear from the transcripts that Gregory Walker had played a significant role in the conspiracy. However, she observed that that finding would not preclude a finding that the applicant also had played a significant role in the conspiracy. Her Honour then referred to a number of passages in the transcripts of the conversations and to a number of acts done by the applicant in furtherance of the conspiracy and reached the following conclusions: "I am satisfied beyond reasonable doubt that the evidence of the conversations and that of the surveillance and search reveal that the prisoner was playing a role of significance in the conspiracy and was not subordinate to Gregory Walker in the sense that he was merely following orders. I am satisfied on the evidence that he was in a position to make suggestions to Gregory Walker as to details of the theft and they discussed matters in a way which satisfies me they were equals and not as a subordinate." 11 On this application it was submitted by counsel for the applicant that an examination of the transcripts of the conversations would show that the applicant did not himself make any decisions about the conduct of the conspiracy and merely did what he was directed to do by Gregory Walker. It was submitted that the acts done or to be done by the applicant in furtherance of the conspiracy, such as preparing the bogus search warrant and entering the premises impersonating a police officer, had no greater tendency to show that the applicant was a co-principal with Gregory Walker than acts done in furtherance of the conspiracy by other co-conspirators who the Crown accepted had been acting at the direction of Gregory Walker. 12 It was submitted that, in any event, because the gravamen of the offence of conspiracy is an agreement between co-conspirators, it is not legitimate to have regard to acts done in furtherance of the conspiracy in determining the role played by a particular conspirator in the conspiracy. I would reject this last submission made by counsel for the applicant. Conspiracy is a continuing offence and, in my opinion, it is clearly legitimate to have regard to acts done by a conspirator in furtherance of the conspiracy in determining the role played by a conspirator in the conspiracy (see Savvas v. The Queen). 13 In seeking to overturn her Honour's finding that the applicant was a co-principal and not subordinate to Gregory Walker, the applicant had the formidable task of demonstrating that in making that finding her Honour erred "in the sense that there is no evidence to support a particular finding or that the evidence is all one way or that the Judge misdirected … herself leading to a miscarriage of justice". (See R v O'Donoghue (1998) 34 A Crim R 347 at 401.) 14 I have examined all of the transcripts of all of the conversations. Gregory Walker is a party to almost all of the conversations and clearly gave directions to co-conspirators other than the applicant. The applicant was a party to only a few of the conversations. I set out hereunder the transcript of some of those conversations. 15 The conversation on 15 September 1998 at 10:57am: "Date: 150998 Time: 10:57 AA = Anthony Armstrong GW = Gregory Walker GW Hello. AA How are ya? GW Alright mate, what's happening? AA I'm goin' up to town in about twenty minutes, got to go and pay the rent. GW Oh. AA And pick up me, er, jumper (…ind…) pick up me suit from the dry cleaners and that. GW Alright well we've got to put our heads down tomorrow. AA Yeah, I know. GW Um, well I'll have to try and catch up with ya this arvo or something. AA Yeah well, er, where would you want me to meet ya? GW I dunno, fuckin' … AA Goin' trainin' or … GW Yeah, I am, mate. AA Well what time d'ya finish, six? GW Actually if you can get there at half past five. AA Eh? GW At a quarter to six be there. AA Alright, a quarter to six? GW Yeah. AA Right, I'll see ya there. GW Yeah". 16 The conversation on 16 September 1998 at 10.23 am: "Date = 160998 Time = 10.23 GW = Greg Walker AA = Anthony Armstrong UM = Unknown Male - Paul … GW [on telephone] Hello mate. Yeah mate. Did you get that? Oh no. Alright then eh (ind)… fuckin' where isn't mine, fucken not far from your fucken street. (ind). I'll go and pick the other bloke up and come back here. Oh right, well I'll be about twenty minutes, 'cause I'll go over and pick me cousin up. Alright. See ya. See ya. UM I might as well follow ya, to you see him (ind). You reckon I'll follow you, you see him. GW If you want. UM Alright then. Where you going? Gladesville? GW No I'm going to pick up the blonde bloke. I've gotta go over the .. see me cousin … UM Alright. GW … go to Coogee. UM We'll play follows. [laughs]. [phone rings] GW [on phone] You there mate. (ind). Walk out and walk towards (ind) pub because, I've (ind) that Paul following me. (ind), I'm on me own. (ind) Yeah down near there. See you mate. [phone rings] GW Fuckin. Me phone won't answer. AA What's doin' mate (ind) GW Mate, I don't want that paperwork piss it off. AA Well thought we're gonna go to your sisters. GW I can't … we can't go there. AA Right. GW I'll meet you down the servo, just around the corner. AA Righto. GW Right hurry". 17 The conversation on 16 September 1998 at 18:31 "Date: 160998 Time 18:31 Duration 00:22. GW = Gregory Walker AA = Anthony Armstrong AA Hi. GW Are you there, mate AA Yeah, where are you at? GW Walk out and walk towards the pub 'cause I've got Prawn followin' me, I don't want to take him down near there. AA Yeah righto I'll leave now. GW See ya, mate". 18 The conversation on 16 September 1998 at 10.23 am "Date = 160998 Time = 7.02:16 (10:23) GW = Greg Walker SW = Steve Walker AA = Anthony Armstrong UM = Unknown Male - Paul [Radio in Background] (ind conversation) AA What, do you work most days, do you (ind) SW Two days a week, sometimes three. AA What do you clean? Houses? SW (ind) not very much (ind) AA Yeah, right. (IND CONVERSATION) AA King of the kids. (IND CONVERSATION) GW Did you like that (ind) SW Yeah, I did. (IND CONVERSATION) GW Hello, is (ind) there please. (ind) Oh, it's alright (ind) see ya later. [CAR STOPS. CAR DOOR OPENS/CLOSES} AA Yeah, oh well (ind) SW Yey, yeah. (IND CONVERSATION) AA (ind) goin' to do it (ind) SW Yeah. (IND CONVERSATION) AA (ind) money (ind) SW Yeah (IND CONVERSATION) SW Yeah, that's what it's about, mate/ (IND CONVERSATION) SW (ind) have we got a place to take it straight away. AA No, we haven't (ind) worked that out. SW Just we don't fuckin' laying around (ind) AA That's right [CAR DOOR OPENS] AA Nice car UM How ya goin' (ind) SW Not too bad. AA Nice car you got there. (IND CONVERSATION) [CAR DOORS OPEN/CLOSE]". 19 The conversation on 17 September 1998 at 10.23 am. "Date = 170998 Time = 11.26.57 (10:23) GW = Greg Walker AA = Anthony Armstrong [SOUND OF TRAFFIC] [LOUD MACHINE NOISE] (…ind…) GW Have a look what is (…ind…) the garage, we might have to move a few things out. AA That's right (…ind…) GW Yeah, we might just have to move a few things to make room. AA Yeah, because that's not a bad holding (ind) and we can get up at 3 in the morning tomorrow, you know what I mean? GW Yeah just get there early in the morning (ind). The thing is if we get there we might just have to get there Thursday night and piss that thing of straight away. Oh no just drive (ind) out at 3am.. AA Yeah. GW (ind) you know what I mean, (ind) finish as soon as possible". 20 The conversation on 17 September 1998 at 10.23 am "Date = 170998 Time = 11.56.16 (10:23) BK = Brett Kelly GW = Greg Walker AA = Anthony Armstrong UM Come on Kel. AA Well that's all done. BK Where do you want this kept (ind) AA I'll just be home this afternoon alright, (ind) watching TV". 21 The conversation on 17 September at 9.20am "Date = 170998 Time = 12:06:39 (9.20) GW = Greg Walker BL = Brett Kelly AA = Anthony Armstrong K (ind) to make sure. GW Oh well yeah that's right then. (ind) AA (ind) Go and enjoy ouselves. BK Yeah. GW Where are you going mate? AA Just on the corner of Cleveland and Bourke mate. I'll see you tonight. GW Get home in about an hour (ind) lunch time or something. (IND CONVERSATION) GW I've got a red light here. See you later. AA oh go past it whatever. GW I've got a green. You'd have to get out here. AA Yeah. No keep going, keep going further up if you want to. GW Well I'm going (ind) here. AA Going left are ya? Nah keep going. Stop here, stop anywhere and I'll get off. UM (ind) AA Alright just I'm gonna try and jump off if I can there's nothing here. CAR DOOR CLOSES". 22 It is clear that her Honour was justified in finding that the applicant had played a role of significance in the conspiracy. It is also clear that her Honour was justified in finding that at least on one occasion the applicant had made a suggestion to Gregory Walker about the conduct of the conspiracy. However, I have concluded that the applicant has succeeded in demonstrating, even by the exacting test in R v O'Donoghue, that her Honour erred in finding that the applicant was a co-principal of equal status to Gregory Walker. As the transcripts of the conversations demonstrate, Gregory Walker on numerous occasions gave the applicant directions about what the applicant was to do. 23 A conversation that was particularly relied on by the sentencing judge in making her finding that the applicant was a co-principal was the conversation commencing at 10.57 on 15 September. This is the conversation in which Gregory Walker said to the applicant, "we've got to put our heads down tomorrow". This assertion by Gregory Walker, standing by itself, would have provided some support for a finding that the applicant and Gregory Walker were co-principals. However, soon afterwards in the same conversation the applicant is recorded as asking Gregory Walker, "where would you want me to meet ya?" A little later in the same conversation Gregory Walker said to the applicant, "If you can get there at half past five". The applicant said, "Eh?", and Gregory Walker said, "At a quarter to six, be there." The applicant asked "a quarter to six?", Gregory Walker said "yeah" and the applicant said "right, I'll see ya there". 24 Another matter relied on by the sentencing judge in reaching her conclusion that the applicant was a co-principal was her finding that it was the applicant who had suggested the garage as a place to store the stolen cigarettes. However the transcript of the conversation at 10:23am on 17 September 1998 shows that it was Gregory Walker who first mentioned the garage. 25 Another matter relied on by the sentencing judge was that in the conversation with Steven Walker on 17 September the applicant said to Steven Walker "we haven't worked that out". However, the fact that the applicant said this to Steven Walker, in a conversation with Steven Walker in which Gregory Walker did not participate, throws little light on the comparative positions in the conspiracy of the applicant and Gregory Walker. 26 In my opinion, the first ground of the appeal has been made out. 27 The second ground of appeal was that her Honour did not give sufficient weight to the plea of guilty entered by the applicant. In her remarks on sentence Judge Ainslie-Wallace referred to the applicant's plea of guilty and said that she would give a discount to the applicant for the utilitarian value of the plea of guilty and as affording some evidence of contrition on the part of the applicant. In my opinion, this ground of appeal has not been established. 28 The third ground of appeal was that there was disparity between the sentence passed on the applicant and the sentence passed on the co-offender, Steven Walker, such as to give rise to a legitimate sense of grievance on the part of the applicant. Judge Ainslie-Wallace sentenced Steven Walker to a term of imprisonment of two and a half years, with a non-parole period of one year six months. Her Honour sentenced Steven Walker on the basis that he had been more than "a mere foot soldier" in the carrying out of the conspiracy and had participated to some extent in the planning of the conspiracy. 29 The conclusion that I have already come to, that her Honour was in error in finding that the applicant was a co-principal equal in status to Gregory Walker, removes or substantially lessens one ground of distinction between the applicant and Steven Walker and, in my opinion, this third ground of appeal has been made out. 30 As it has been established that error occurred in the sentencing process, it is necessary for this court to consider what sentence it should impose. The crime of conspiracy was an objectively serious crime. The carrying out of the conspiracy was to involve conspirators in impersonating police officers and using a fabricated search warrant. These were serious circumstances of aggravation. The applicant's role in the conspiracy, even if not that of a co-principal, was, in my opinion, a significant role. 31 It is a circumstance aggravating the applicant's criminality that at the time of committing the offence he was subject to a recognisance. The applicant had previous convictions for larceny. The applicant did not give evidence in the proceedings on sentence and there was little or nothing to indicate any contrition on his part, except such contrition as can be inferred from his entering a plea of guilty. 32 On the other hand, some credit must be given to the applicant for the utilitarian value of his plea of guilty. We were informed that the first abortive trial lasted nine to ten weeks and it is likely that a re-trial, if there had not been pleas of guilty, would have lasted a considerable time. 33 It is possible to draw points of distinction, one way or the other, between the position of the applicant and the position of Steven Walker but the conclusion I have come to is that a sentence equal to the sentence imposed on Steven Walker would be an appropriate sentence to impose. I find special circumstances in the need to assist the applicant's rehabilitation. 34 The orders I would propose would be: 1. Leave to appeal is granted. 2. Appeal against sentence allowed. 3. The sentence imposed by Judge Ainslie-Wallace on 14June 2000 is quashed. In lieu thereof the applicant is sentenced to a term of imprisonment for two and a half years with a non-parole period of one and a half years commencing on 31 May 2000 and expiring on 30 November 2001, with a parole period of twelve months. The earliest date on which the applicant will be entitled to be released on parole will be 1 December 2001. 35 WHEALY J: For my part I agree with the reasons of James J and I agree with the orders he has proposed. 36 JAMES J: The orders will be as proposed by me. ********** 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.