R v Armstrong [2014] NSWSC 700

Supreme Court New South Wales

Medium Neutral Citation: R v Armstrong [2014] NSWSC 700 Hearing dates: 17 April and 23 May 2014 Decision date: 30 May 2014 Jurisdiction: Common Law Before: Adamson J Decision: (1) For the manslaughter of Felipe Flores, the offender is sentenced to a term of imprisonment of 13 years and 3 months, commencing 21 October 2012, with a non-parole period of 9 years and 11 months. (2) The earliest date upon which the offender is eligible for release on parole is 20 September 2022. Catchwords: CRIMINAL LAW - sentence - manslaughter - guilty plea directly contradicted offender's evidence in his previous trial - key witness inaccurate about sequence of events but otherwise reliable - offender inflicted grievous bodily harm upon deceased upon discovering deceased was HIV positive - minor provocation in circumstances where offender made no inquiry as to the HIV status of the deceased and offender was prepared to engage in sexual acts not knowing whether person had HIV - objectively serious offence having regard to brutality of assault and relatively minor provocation - statistical analysis of sentences imposed for manslaughter unhelpful given their varied factual nature - no adverse movement of sentencing practices since commission of crime in 1991 established - no concurrence appropriate with sentence for unrelated offences of sexual intercourse without consent - lack of remorse - offender not entitled to leniency given offender's criminal history before and after his killing of deceased - low prospects of rehabilitation given offender's subjective circumstances - small utilitarian value of guilty plea due to its timing - offender's institutionalisation by reason of lengthy incarceration not a special circumstance Legislation Cited: Crimes Act 1900 (NSW), s 24 Crimes (Sentencing Procedure) Act 1999 (NSW) Sentencing Act 1989 (NSW), s 5 Cases Cited: Armstrong v R [2013] NSWCCA 137 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Hoerler [2004] NSWCCA 184 R v Lavender [2005] HCA 37; 222 CLR 67 R v MJR [2002] NSWCCA 129; 54 NSWLR 368 R v Olbrich [1999] HCA 54; 199 CLR 270 Scott v R [2011] NSWCCA 221 R v Previtera (1997) 94 A Crim R 76 Texts Cited: New South Wales, Judicial Commission of New South Wales, Sentenced Homicides in New South Wales: 1990-1993, (June 1995) Category: Sentence Parties: Regina Paul Darcey Armstrong (Offender) Representation: Counsel: K McKay (Crown) J Nicholson SC (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid Commission (Offender) File Number(s): 2007/63851 Publication restriction: Nil