Bini v The Queen - [1994] HCATrans 462

EBo lF

IN THE HIGH COURT OF AUSTRALIA 1
2

ADELAIDE

3 4

CORAM:

BRENNAN, DEANE & DAWSON JJ

5 6

NO. A12/94 7 8 9
10 11 12

PETER BINI APPLICANT 13
14

V

15 16

THE QUEEN

RESPONDENT

17 18 19 20 21

22 23 24

TRANSCRIPT OF PROCEEDINGS 25
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27
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THURSDAY, 25 AUGUST 1994 AT 2.45 P.M. -29

30 31
32
MR S.W. TILMOUTH QC, WITH HIM MR R.M. ARMOUR, FOR APPLICANT 33

37

MR B.J. JENNINGS QC, WITH HIM MS P.M. BARNETT, FOR RESPONDENT 34
35 36

EBo lF 2 APPLICANT ADDRESS

MR TILMOUTH: Your Honours will be aware that in this 1

case the Court of Criminal Appeal more than doubled Mr 2

Bini's sentence for armed robbery. The original 3

sentence was three years with a non-parole period of 18 4
months and it was increased to six years and a four year 5

non-parole period. I am absolved from painting the 6

whole factual background because Mr Jennings in his 7
outline has agreed, as your Honours have seen, that the 8
outline which is in your Honours appeal book, 9

application book, from p.42 is accurate. 10

The only issue, therefore, is whether there was an 11

error in the Court of Criminal Appeal below. My 12

submission is this: There were four applications - all 13
armed robbery offences - dealt with in the Court of 14

Criminal Appeal at the same time. They were all brought 15

by the Crown Prosecutor and argued together. If your 16

Honours know, the Crown Prosecutor argued the lot, then 17

.... defence counsel all responded and then judgments were 18
0

delivered after lunch. On the basis that it was proper 19

to grant leave to appeal because of a perception that 20
since District Cou~t judge$ had assumed jurisdiction in 21
these cases that the sentences were too low, the Crown 22
appealed on Osenkowski's case which would be well-known 23
to your Honours. 24

What happened, and I submit this is a fair review of 25

what happened in the Court of Criminal Appeal, is that 26
the court essentially allowed leave for the same reason 27

in each case, that is to say, looking at the sentence 28

generally in each case it was manifestly too.low; did ~9
not, in my submission, identify for the purposes of the 30
applicant's appeal any individual reason why leave was 31
appropriate; and applied on re-sentencing, having 32
decided to give leave, a fairly uniform or standard 33
sentence which was not directed to the individual 34
circumstances of this applicant's case. 35

That is supported by the fact that, putting Meo 36

aside, who was a_multiple offender, in each of the other 37
cases where there was one offence of armed robbery, the 38

EBo lF 3 APPLICANT ADDRESS

court said the tariff should have been eight years - 1
pp.24, 32 and 35 respectively. It uniformly discounted 2

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bini v The Queen

Details

AGLC: Bini v The Queen [1994] HCATrans 462
Case: [1994] HCATrans 462
Decision Date

CaseChat Overview and Summary

The applicant, Peter Bini, sought special leave to appeal to the High Court of Australia against a decision of the Court of Criminal Appeal of New South Wales. The Court of Criminal Appeal had increased Mr Bini's sentence for armed robbery from three years with an 18-month non-parole period to six years with a four-year non-parole period. The Crown had appealed the original sentence, arguing it was manifestly too low.

The primary legal issue before the High Court was whether the Court of Criminal Appeal erred in granting leave to appeal and in its subsequent re-sentencing of Mr Bini. Specifically, the applicant argued that the Court of Criminal Appeal failed to adequately consider the individual circumstances and mitigating factors of his case when deciding to grant leave, instead focusing broadly on the perceived inadequacy of sentences for armed robbery. Furthermore, the applicant contended that even if leave was properly granted, the re-sentencing process did not give sufficient weight to his unique mitigating circumstances, such as his immediate confession to the police the day after the offence when he was not a suspect, resulting in a uniform sentence comparable to those of other offenders with less compelling mitigation.

The applicant's counsel submitted that the Court of Criminal Appeal should have individually assessed whether leave to appeal was appropriate based on the specific facts of Mr Bini's case, rather than simply identifying a disparity from the general tariff for armed robbery. It was argued that the court's decision to impose a standard sentence, despite acknowledging Mr Bini's confession, demonstrated an error in re-sentencing, as this significant mitigating factor was not adequately reflected in the final outcome compared to other offenders. The respondent, however, contended that the Court of Criminal Appeal correctly assessed the original sentence as manifestly inadequate, considered Mr Bini's individual circumstances, and appropriately intervened to maintain adequate penalty standards, noting that other offenders had mitigating factors not present in Mr Bini's case, such as time spent in custody or mental health issues.

The High Court ultimately granted special leave to appeal and allowed the appeal, finding that the Court of Criminal Appeal had erred in its approach. The Court held that while the Court of Criminal Appeal had adverted to Mr Bini's confession, it had failed to give it sufficient weight in the re-sentencing process, particularly in comparison to the standard discount applied for an early plea of guilty. The Court concluded that the individual circumstances of Mr Bini's case warranted a substantially different outcome than that imposed, and the appeal was allowed on the basis that the Court of Criminal Appeal had not adequately differentiated his case from others.

Orders