R v Armstrong [2010] NSWSC 800

New South Wales Supreme Court

CITATION : R v Armstrong [2010] NSWSC 800

HEARING DATE(S) : 20 April 2010, 21 May 2010

JUDGMENT DATE : 12 August 2010

JUDGMENT OF : Buddin J

DECISION : For the murder of Felipe Flores, the offender is sentenced to a non-parole period of 11 years and 6 months imprisonment with a total term of 17 years imprisonment to date from 4 December 2008. The total term will expire on 3 December 2025 and the offender will be eligible for release on parole on 3 June 2020.

CATCHWORDS : CRIMINAL LAW - sentencing - offender convicted of murder - offence committed in 1991 - need to consider sentencing patterns and practices at that time

LEGISLATION CITED : Crimes (Life Sentences) Act 1989 Crimes (Sentencing Procedure) Act 1999

CATEGORY : Sentence

MAH v R [2006] NSWCCA 226 R v FD & JD (2006) 160 A Crim R 392 CASES CITED : R v MJR (2002) 54 NSWLR 368 R v Previtera (1997) 94 A Crim R 76 R v Todd [1982] 2 NSWLR 517

PARTIES : Regina Paul Darcey Armstrong

FILE NUMBER(S) : SC 2009/63851

COUNSEL : M Cunneen SC (Crown) A Haesler SC (Offender)

SOLICITORS : S Kavanagh (Solicitor for Public Prosecutions) (Crown) Legal Aid Commission of NSW (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BUDDIN J

THURSDAY 12 AUGUST 2010

2009/63851 - REGINA v PAUL DARCEY ARMSTRONG

REMARKS ON SENTENCE 1 HIS HONOUR: Paul Darcey Armstrong (the offender) stands for sentence following his conviction by a jury of the murder of Felipe Flores on 2 September 1991. The maximum penalty for the offence is life imprisonment. As the offence was committed before the legislation providing for the fixing of standard non-parole periods was introduced, it follows that no standard non-parole period is applicable in this case. 2 It now falls to me to determine the factual basis upon which the offender stands to be sentenced. My task in that regard is made considerably easier because there is no real disagreement between the parties about that material. 3 The deceased's body was located by a security guard, Mr Robert Small in the early hours of 2 September 1991. It was discovered in a deserted area behind an electricity sub-station which is just off Lincoln Crescent in Woolloomooloo. The deceased had been brutally beaten to death. Dr Schwartz, who conducted the post-mortem upon the deceased, concluded that his death was attributable to the multiple injuries which he had sustained and in particular those which had been inflicted to his vital organs such as his heart, lung, liver and spleen. The evidence demonstrated that his liver had been almost split in half and that his ribs had been broken. He had also suffered injuries to his genitals. Photographs taken of the deceased in the position in which he was found reveal the nature and extent of his injuries. He had bruising, abrasions and lacerations to his face and his nose had been broken. It is also clear that his face had been stomped on although it does not appear that a weapon was used in the fatal attack. 4 An initial investigation into the matter did not reveal any suspects. Curiously enough however, a person named Clifford Lee, made admissions to having killed a man at the relevant time in the general area of where the deceased's body was discovered. Those admissions emerged from a lawfully intercepted conversation which he had had with an undercover police officer in the cells at Hornsby Police Station on 25 September 1991. Mr Lee gave evidence denying that he was the killer and maintained that he had made up the confession. The Crown case was that he was simply "big noting" himself. There were aspects of his account of the attack in which he had engaged which did not fit in with the otherwise established facts surrounding the manner in which the deceased had met his fate. Mr Lee was never charged with the deceased's murder. Indeed, the police officer who was in charge of the initial investigation formed the view that Mr Lee had been describing the wrong location. Even though Mr Lee had a record for assaulting a number of his female partners and had a dislike for gay men, the jury obviously concluded that the Crown had excluded the reasonable possibility that he was the killer. 5 The deceased, who was aged 27 at the time of his death, came to Australia from Ecuador. He lived an openly gay lifestyle and as such, was in the habit of frequenting establishments in Oxford Street which provided entertainment for persons wishing to meet other gay men. A considerable body of evidence was called to explain his movements in the hours before his death and to demonstrate that he had not encountered the offender during that period of time. It is unnecessary to refer to that evidence in any great detail. Suffice it to say that during the evening of Sunday 1 September 1991 the deceased went with friends to various hotels on Oxford Street. They ended up at the Exchange Hotel arriving there at about 1 am the following morning. The deceased and his friends remained there for some hours although at one stage the deceased left to go across the road in order to access an ATM machine. The evidence establishes that the deceased was still at the Exchange Hotel at around 3 am. By the end of the evening, he had made the acquaintance of a very tall Australian man. It is common ground that that man was the offender, who is 6'7" in height. It was clear to his friends that the deceased was excited about having met the offender and that he intended to engage in sexual relations with him. 6 Although investigators retained the deceased's fingernail clippings, it was not until 2008 that further forensic analysis enabled a match to be made between the offender's DNA profile and the material which had been located on the deceased's shirt and under his fingernails. By 2008 the offender had returned to live in Launceston, which is where he had spent his formative years. Police went to Launceston and interviewed him there on 4 December 2008. During that interview, which was electronically recorded, the offender was shown a photograph of the deceased. He denied knowing him or having met him. He did say however that at the time he was in the habit of having sex with gay men in establishments such as the Exchange Hotel. During the course of the trial the offender made a number of formal admissions. It included the following: At the time (August/September 1991) I was a promiscuous homosexual. I regularly went to the gay-oriented bars or clubs around Oxford Street. In 1991, I often picked up, or was picked up by, other gay men. I often had casual and anonymous sex with other gay men in toilets and dark places in bars and clubs around Oxford Street, including the Exchange Hotel. At the time I was regularly at the Sunday night gay evenings at the Exchange Hotel. I have had explained to me the evidence of Ms Burger and Dr Bruce from the Department of Analytical Laboratories in relation to DNA matching. I accept that evidence, and I admit that the DNA found on Mr Flores' fingernails and shirt came from my bodily fluids. 7 Following the interview, the offender was arrested and charged with the deceased's murder. In due course, he was extradited to New South Wales. It is appropriate to date the sentence from 4 December 2008 being the date upon which the offender first went into custody. 8 Dr Bruce gave evidence about the DNA material which had been located. Although blood had been discovered under the deceased's fingernails, Dr Bruce was unable to determine whether it emanated from the deceased or from the offender or indeed from both of them. Nor was he able to offer a definitive opinion as to the source of the DNA which belonged to the offender. He could not say, for example, whether it came from his blood, his semen, his saliva or even from his skin cells (although he regarded that possibility as much less likely). 9 As I have said, the deceased's body was discovered in Woolloomooloo. It is difficult to be precise about the exact time of the discovery but it cannot have been any later than 3.30 am and it may well have been earlier than that. Mr Small gave evidence that at about that time he saw a man leaving the area of Lincoln Crescent in an old model creamy or white coloured Holden station wagon with its headlights off. He described the rear driver's door of the vehicle as being of a "red pinkish primer colour". The evidence established that the offender owned an old model white Holden station wagon at the time. It was in poor condition and had rust throughout it. The rear driver's door was of a different colour, being either a different shade of white or cream. One of the previous owners of that car had used bog to fill in holes in the car caused by the rust. Although the bog filler was normally brown in colour, it was sometimes pink or grey. Mr Small described the man who was driving the vehicle as being approximately 5'6" to 5'8" in height. He made his observations from a distance of about 80 to 90 metres. The jury nevertheless clearly accepted the Crown's contention that that man was the offender. 10 During the course of his record of interview with police, the offender denied that he had bought any vehicles whilst he was in Sydney. That was, of course, untrue. Notwithstanding the passage of time between 1991 and the date of the interview, the jury was entitled to conclude that the offender's professed inability to recollect anything about the vehicle, a car which had caused him considerable trouble because it had attracted the attention of the police having accumulated a number of parking tickets, was difficult to accept. Nor would the manner in which the offender answered some of the questions asked of him by police in that interview have assisted his cause. 11 A critical witness in the Crown case was the offender's then live-in male partner. By the time the partner came to give evidence, she had become Ms Jacinta Webber. Ms Webber gave evidence that the offender had come home one evening on an occasion, which she said was in September 1991, with a damaged shirt. She said that she had also observed that he had blood on his shirt and scratch marks both on his face and on his chest. According to Ms Webber, the offender told her that he had sustained the injuries when he had become involved in a fight with a patron at the place where he was then working as a barman. Ms Webber also gave evidence that shortly after that incident she was reading an article in the Sydney Star Observer newspaper. She said that it concerned a gay murder in the Woolloomooloo area. She said that when she had drawn it to the offender's attention, he had replied that "he had hurt someone pretty badly in Wollooloomoo…but that when he'd left he said he was still alive". The Crown case was that that aspect of her evidence was consistent with Mr Small's evidence that when he had first seen the deceased, his eyes had still been moving. That observation suggested that he was then still alive. 12 A significant attack was made upon the credibility of Ms Webber particularly as it was not until September 2009 that she first told police of what she had observed about the offender and what she had been told by him. Furthermore, by her own admission, she was a recovering alcoholic. Moreover, objective evidence in the form of medical records from 1991 enabled Mr Haesler SC, who appeared for the offender, to submit that her reliability was significantly compromised. Nevertheless, particularly given the manner in which Ms Webber gave her evidence, it was well open to the jury to accept her evidence and I have little doubt that it did. Such failures as there were in her recollection were perfectly explicable given the passage of time since the fatal incident had occurred. Her evidence of having seen the scratch marks on the offender's body was capable of being supported by the evidence that the offender's DNA was under the deceased's fingernails. Although of course no obligation was cast upon the offender to do so, the fact remains that nothing was suggested to Ms Webber which may have explained why she would have been prepared to falsely implicate the offender in this crime. 13 On 6 April 2009, the offender who was then in custody awaiting trial, spoke on the telephone to his father. The telephone conversation was lawfully intercepted. It was in the following terms: Accused The lawyer came out and saw me last Tuesday Peter Oh right Peter Yeah so you have to wait until the 19 th June Accused Yeah Peter That's a long way away Accused Yeah about 10 weeks. The prosecutors are trying to get all their shit together apparently my lawyer already as a Q.C. barrister lined up. Apparently there is a partial DNA on this persons shirt 1 in 180 thousand – then apparently fairly common. But under the fingernails is 1 in 580 thousand. Peter Oh. Accused But they don't know what type. Peter Oh Accused and previously there was 2 other suspects and they are both since deceased. Peter Two more. Accused Two other suspects they are both since deceased, passed on, dead. Peter Oh so Accused According to my lawyer the only thing they have is the DNA so my lawyer is going to check out what type it is, the validity of it how it was stored for the last 17 to 18 years. Peter Oh right, yeah they might had nothing on you then mate. Accused Yeah they probably want to strike up a bargain, like drop it from Murder down to Manslaughter. Peter You are not having that are you. Accused Well we have not plead anything yet, because we do not know the strength of the DNA. Peter You wont plead guilty to nothing at the moment Accused No Peter No