The ‘Ceiling Principle’ in NSW Appeals Cases

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By Paul Gregoire and Ugur Nedim

Just after midnight on 2 September 1991, Paul Darcey Armstrong met Filipe Flores at the Exchange Hotel on Oxford Street in Sydney’s Darlinghurst. The pair left the nightclub, and Armstrong drove Flores to Lincoln Crescent in Waterloo.

Mr Armstrong then performed oral sex on the 27-year-old Ecuadorian man at a park. As the pair then lay on the grass, Mr Flores revealed he was HIV positive. This caused the much larger Armstrong to fly into a rage and violently assault Flores.

The victim suffered severe internal injuries, including three fractured ribs, a lacerated liver, bruised spleen, and deep cut to the groin area.

After the assault, then 28-year-old Armstrong dragged Flores’ half-naked body into a dark place and left him. The victim was found dead later that morning by a security guard.

Convicted of murder

In 2008, the NSW police Unsolved Homicide Team linked the offender’s DNA profile to blood samples found underneath Mr Flores’ fingernails and on his shirt.

On 12 August 2010, a jury in the NSW Supreme Court (NSWSC) found Armstrong guilty of murder, under section 18 of the Crimes Act 1900. The offence carries a maximum penalty of life imprisonment, and a standard non-parole period (SNPP) of 20 years gaol time.

An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole. However, as the offence was perpetrated before SNPPs were introduced in February 2003, it was not applicable to the case.

NSW Supreme Court Justice Terence Buddin sentenced Armstrong to 17 years in prison, with a non-parole period of 11 years and 6 months.

Unrelated charges

Mr Armstrong also stood trial and was convicted in the NSW District Court (NSWDC) of two unrelated counts of sexual intercourse without consent, under section 61I of the Crimes Act. The maximum penalty for this offence is 14 years behind bars.

An SNPP of 7 years imprisonment applies to the offence. But again, it did not apply in this case as the offences were committed in 1992.

NSWDC Judge Helen Murrell delivered the sentences on 13 August 2010, the day after his sentencing for murder. The combined sentences for the two offences came to 5 years 10 months and 17 days imprisonment, with a non-parole period of 3 years 10 months and 17 days.

The sexual assault sentences were to be served entirely concurrently with Armstrong’s head sentence for his murder conviction, but only partially with its non-parole period. This resulted in the non-parole period being extended by approximately 1 year and 10 months.

The partial defence of provocation

Mr Armstrong successfully appealed his murder conviction to the NSW Court of Criminal Appeal (NSWCCA). On 20 May 2013, the appeals court quashed his conviction and ordered a re-trial. The NSWCCA subsequently revised the sentences imposed for the sexual assault offences.

In April 2014, Armstrong stood before the NSWSC once more. This time, he pleaded guilty to the manslaughter of Mr Flores. The plea to the lesser offence of manslaughter was entered by reason of provocation.

The partial defence of provocation can be argued in a court of law when a person who’s killed another claims to have been provoked by the deceased in such a way that they lost self-control and were therefore less culpable for their actions.

Provocation can reduce a murder charge to one of voluntary manslaughter.

Mr Armstrong claimed he’d lost control after Flores told him that he was HIV positive, and he’d then intended to cause grievous bodily harm. The Crown accepted the plea, taking into account community concerns over contracting HIV in 1991.

The maximum penalty for manslaughter is 25 years in prison. There is no SNPP.

The Supreme Court proceedings

NSWSC Justice Christine Adamson accepted that Armstrong had lost control. However, she found he had regained it by the time he hid his victim’s body. She considered that he did this “in order to reduce the prospects of his involvement being revealed”.

Her Honour rejected Armstrong’s claim that he did not realise Mr Flores had died. She found the offender had concluded the death would be put down to a “gay-bashing”, and that he did not have good prospects for rehabilitation.

On 30 May 2014, her Honour imposed a sentence of 13 years and 3 months imprisonment, with a non-parole period of 9 years and 11 months. Justice Adamson noted that the original sentence handed down by Justice Buddin had no “bearing on the exercise” of her “sentencing discretion.”

Her Honour ordered the new sentence commence on the date the non-parole period for Armstrong’s sexual offences expires. This meant he would become eligible for parole approximately five months later than he had been prior to the overturning of his murder conviction.

The ceiling principle

Mr Armstrong appealed his sentence to the NSWCCA on the ground that the sentencing judge had failed to take into account the sentences of NSWDC Judge Murrell and NSWSC Justice Buddin, along with the total effective sentence and non-parole period.

Armstrong’s lawyers were relying on the general principle that sentences handed down at an initial trial should be regarded as the upper limit of the sentence imposed following an appeal and retrial, lest the offender would be worse off after a successful appeal.

This is known as the ceiling principle. As noted by the High Court Justices in R H McL v The Queen the principle is important because “if the raising of a sentence after a successful appeal became common, it might discourage appeals.”

The findings of the NSWCCA

NSW Chief Justice Tom Bathurst found that in Armstrong’s case, the failure to apply the ceiling principle “cannot be explained by the fact that because a lesser overall sentence for manslaughter was imposed, there was no need for any concurrence with the second offence.”

His Honour determined that the sentencing judge had made an error in regarding the earlier sentences as irrelevant. Justice Bathurst also noted that, in circumstances where a longer sentence is imposed at a retrial, the sentencing judge must set out the reasons for this.

His Honour therefore found it necessary to resentence Mr Armstrong, as in his understanding re-establishing concurrency “is not permitted by the authorities.”

The orders

In resentencing, the appeals court took into consideration Justice Adamson’s analysis of the offence as objectively very serious, as it was “a brutal and savage attack by a large, strong man against a relatively diminutive weaker man.”

It allowed the appeal and set aside the sentence imposed at the retrial. Mr Armstrong was sentenced to 12 years and 3 months imprisonment, with a non-parole period of 9 years and 2 months.

This meant Armstrong was eligible for parole approximately 11 months earlier than his initial combined murder and sexual assault sentences.

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