Binse v The Queen
[2016] VSCA 145
•22 June 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0121
| CHRISTOPHER DEAN BINSE |
| V |
| THE QUEEN |
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| JUDGES: | WHELAN, BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 May 2016 |
| DATE OF JUDGMENT: | 22 June 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 145 |
| JUDGMENT APPEALED FROM: | [2014] VSC 253 (T Forrest J) |
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CRIMINAL LAW — Sentence — Multiple charges— Applicant sentenced to 14 years 2 months’ imprisonment in respect of one charge of armed robbery — Total effective sentence of 18 years and 2 months with non-parole period of 14 years 2 months — Whether sentence on charge of armed robbery manifestly excessive — Whether total effective sentence and non-parole period inconsistent with totality — Armed robbery in worst category — Extensive criminal history of armed robbery and firearm offences — Application of Verdins principles — Psychological damage relating to extensive incarceration and onerous conditions of imprisonment — Insufficient connection demonstrated between mental condition and offending conduct to lead to application of Verdins principles beyond that which sentencing judge accepted — Appropriate weight given to utility of ‘late’ guilty plea — Sentence imposed not wholly outside range — Cumulation of sentences for associated offences particularly moderate — Appeal dismissed.
CRIMINAL LAW — Sentence — Application to add ground — Whether sentencing judge correctly adhered to Sentencing Act 1991 ss 14–16 — Adjusting sentence upwards, rather than addressing totality by order for cumulation and concurrency — DPP v Grabovac [1998] 1 VR 664 — Approach adopted in accordance with appellant’s submissions on plea — Intervention could not alter practical outcome — Application to introduce new ground refused.
CRIMINAL LAW — Sentence — Application to add ground — New evidence — Earlier diagnosis of post-traumatic stress disorder — Whether evidence had potential to significantly alter application of Verdins principles concerning general deterrence and specific deterrence — No miscarriage of justice — Application to introduce new ground refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G Hughan | Stary Norton Halphen |
| For the Respondent | Mr C Boyce SC | Solicitor for Public Prosecutions |
WHELAN JA
BEACH JA
McLEISH JA:
The appellant, Christopher Binse, is now 47 years old. He has spent almost all his adult life in prison, often in harsh conditions. The comparatively brief periods of time which he has spent in the community have been characterised by serious offending, often involving firearms.
On 28 September 2011 the appellant was released from prison. He had not been granted parole. Between January 2012 and May 2012 he committed a series of offences, to which he subsequently pleaded guilty. According to the appellant, this offending was motivated by, or closely related to, a violent feud involving himself and another former prisoner, to whom the sentencing judge referred as Prisoner X. According to the appellant, this feud had resulted in a violent assault upon him in prison in 2006, another violent assault upon him after he had been released in October 2011, the shooting of an associate of his in November 2011, and a fatal shooting in February 2012.
On his plea hearing the prosecution categorised the offences into five ‘incidents’. The five incidents were the following:
(1) On 9 January 2012 a loaded semi-automatic handgun with a silencer fitted was found by police in a motor vehicle which the appellant had abandoned in Seaford. The appellant had gone to Seaford with the firearm with the intention of confronting Prisoner X.
(2)On 19 March 2012 the appellant carried out an armed robbery on two Armaguard security guards carrying $235,090.05 in cash in the car park of the Westside Hotel at Laverton North. The appellant was armed with a loaded sawn-off pump action shotgun.
(3)On 20 May 2012 the appellant produced a revolver in a restaurant after being approached by persons who were, unbeknownst to him, plain-clothes police officers. The appellant in the same incident stole a portable radio belonging to Victoria Police.
(4)Over a period of approximately 44 hours, from 21 May 2012 to 23 May 2012, a ‘siege’ took place at the house in which the appellant was living in Keilor East. In the course of that siege nine shots were fired by the appellant with a revolver which he had taken from one of the Armaguard security guards. Five of the shots were fired at a Special Operations Group armoured vehicle. One was fired at a Victoria Police robot (Ozbot). Three shots were fired out of the back door of the house, one of which penetrated two fences and fell close to a busy thoroughfare.
(5)During the siege a storage unit rented by the appellant and regularly attended by him was searched. Four firearms were found in that storage unit, being another revolver taken from the Armaguard security guards, a rifle, a shotgun, and a submachine gun.
After a trial at which the appellant was found not guilty on a number of charges relating to incident (3), the appellant pleaded guilty to six charges on two indictments. Two of the charges (use of firearms and possession of firearms) were ‘rolled up’.
On 23 May 2014 the appellant was sentenced as follows:
Charge Offence Maximum Sentence Cumulation Incident Indictment No 1 7 Prohibited person possess a firearm [Firearms Act 1996 s 5(1)] 10 years 2 years 6 months 3 — Confrontation at restaurant
8 Theft [Crimes Act 1958 s 74] 10 years 1 month - 3 — Confrontation at restaurant Indictment No 2 1 Armed robbery [Crimes Act 1958 s 75A] 25 years 14 years, 2 months Base 2 — Westside Hotel armed robbery 2 Prohibited person use a firearm [Firearms Act 1996 s 5(1)] 10 years 6 years 2 years 4 — Siege in Keilor East 3 Reckless conduct endangering persons [Crimes Act 1958 s 23] 5 years 2 years 6 months 4 — Siege in Keilor East 4 Prohibited person possess a firearm [Firearms Act 1996 s 5(1)] 10 years 4 years 1 year 1 & 5 — Firearms (5) in vehicle and in storage Total Effective Sentence: 18 years, 2 months’ imprisonment Non-Parole Period: 14 years, 2 months Pre-sentence Detention Declared: 715 days 6AAA Statement: 22 years’ imprisonment with a non-parole period of 18 years
The sentencing judge heard a plea over three days in April 2014. When sentencing he gave comprehensive reasons.[1]
[1][2014] VSC 253 (‘Sentencing Reasons’).
The appellant applied for leave to appeal on two proposed grounds. The proposed grounds were:
1The sentence of 14 years, 2 months imposed on charge 1 (Armed Robbery) was manifestly excessive:
(a)The sentence reflects an over weighting of the seriousness of the armed robbery.
(b)The sentence places excessive weight on the need for deterrence and community protection.
(c)The sentence places insufficient weight on the circumstances in which the Applicant will serve his sentence, the Applicant’s guilty plea and his remorse.
2In consequence of the error particularised in Ground 1, the total effective sentence and minimum non-parole period imposed are inconsistent with the principle of totality.
The application for leave to appeal was dealt with in the first instance before Weinberg JA.[2] He refused to grant leave to appeal observing that, whilst the sentence on the armed robbery charge was ‘at the very top of the range for that offence’, it could not be said to be manifestly excessive.
[2][2014] VSCA 329 (‘Leave Reasons’).
The appellant elected to renew his application for leave.
On the plea hearing and on the oral hearing for leave to appeal before Weinberg JA the appellant was represented by senior counsel. On the renewed application for leave the appellant appeared for himself. Prior to the hearing of that renewed application the appellant delivered to the court a large amount of material raising a number of issues, many of which appeared to be entirely new. The Court determined to grant leave on the grounds in the existing application, which had been dealt with by Weinberg JA. It did so not because there was seen to be any shortcoming in the reasons of Weinberg JA. It did so solely because the sentence on the armed robbery count was, in the words of Weinberg JA, ‘at the very top of the range for that offence’. An order was made that insofar as the appellant was seeking to add new proposed grounds of appeal that application should be heard by the court hearing the appeal.
A written case had been prepared by senior counsel who had appeared at the plea and who appeared on the application before Weinberg JA. After leave to appeal was granted, and before the hearing of the appeal, a fresh written case dated 8 February 2016 was filed by new counsel acting on behalf of the appellant. The respondent filed a response dated 8 April 2016 to the appellant’s fresh written case. In the fresh written case submissions were made in relation to the grounds upon which leave had been granted and leave was sought to rely upon two additional grounds, being the following:
Proposed ground 3: The learned sentencing judge erred in law by imposing a sentence in respect of the armed robbery charge and a total effective sentence which were increased by two months beyond that which his Honour considered to be appropriate in order to achieve partial cumulation on the sentence imposed on the appellant for contempt on 8 May 2014 (‘the Contempt Sentence’) instead of imposing an appropriate sentence and then making orders for partial cumulation of the sentence and the Contempt Sentence.
Proposed ground 4: The sentencing hearing miscarried because of a failure to refer to and rely on the previous diagnosis of post-traumatic stress disorder and its impact on the appellant’s state of mind at time of offending and sentence.
The sentencing judge set out the appellant’s prior offending history,[3] as did Weinberg JA.[4] We will not repeat that history, save so far as it is necessary to do so in order to address the submissions made on appeal. Both the sentencing judge and Weinberg JA also set out the circumstances of the offending in detail.[5] Again, we will not repeat that recitation of the relevant events, save to the extent it is necessary to do so in order to deal with the submissions made on the appeal.
Submissions made
[3]Sentencing Reasons [2]–[10].
[4]Leave Reasons [9]–[14].
[5]Sentencing Reasons [12]–[28]; Leave Reasons [17]–[36].
Ground 1 — Manifest excess on armed robbery
It was submitted on behalf of the appellant that a sentence of 14 years 2 months’ imprisonment on the armed robbery charge was manifestly excessive. It was submitted that the sentence imposed was outside the range of sentences open to the sentencing judge, given the following considerations:
(a) The armed robbery was a very serious instance of that offence, and the appellant has prior convictions for armed robbery, but the sentence imposed was not justified by those considerations. It was submitted that the planning of the offence was at a ‘quite basic level’ and that the appellant had been identified as a suspect because his preparations had been captured on CCTV footage and because he had identified himself when hiring a white van used in the armed robbery. It was submitted that the offence was of short duration and had not been accompanied by ‘gratuitous violence or force’.
(b) Before the sentencing judge psychological and psychiatric evidence was led. Two reports of Pamela Matthews, forensic psychologist, dated 16 September 2010 and 14 April 2014 were tendered, as was a psychiatric report from the forensic psychiatrist Dr Danny Sullivan dated 19 January 2014. Ms Matthews gave oral evidence on the plea. The psychiatric and psychological evidence addressed the very significant developmental and other psychological problems caused by, or related to, the extensive periods of time which the appellant has spent in custody, often in isolated, harsh and violent conditions. It was submitted that the evidence led ought to have resulted in a lessening of the weight to be given to general and specific deterrence. It was submitted that that had not occurred and that the judge had specifically confined the relevance which he attached to the psychological damage the appellant has suffered to the risk of an adverse effect on his mental health as a result of the sentence which was imposed. By reference to the considerations referred to in R v Verdins[6] it was submitted that the judge had only taken into account consideration 6 (adverse effect on an offender’s mental health by reason of imprisonment) when he ought to have also moderated general deterrence (consideration 3) and specific deterrence (consideration 4).
[6]R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’).
(c) It was submitted that the appellant’s guilty pleas had been ‘undervalued’ and that the appellant had been entitled to the utilitarian value of early guilty pleas. It was submitted that whilst there had been a contested committal, the second indictment originally contained 18 charges which were eventually reduced to four and that in those circumstances the sentencing judge had incorrectly characterised the guilty pleas as being ‘late’.
(d) The evidence before the sentencing judge was that the appellant is a long term management prisoner. He is presently serving his sentence in onerous conditions under which he is only released into an exercise yard between one and three hours per day and is isolated from other prisoners. It was submitted that the appellant may be required to serve his entire sentence in these very onerous conditions and that the sentence imposed did not adequately reflect this significant mitigating consideration.
(e) It was submitted that a consideration of current sentencing practice reveals this sentence to be ‘out of step’. In that regard reference was made to Johnson v The Queen;[7] Mansfield v The Queen;[8] Rich v The Queen;[9] Milkins v The Queen;[10] Jorgenson v The Queen;[11] DPP v Kennedy;[12] R v Bortoli;[13] Parker v The Queen;[14] and DPP v Khoder.[15]
[7][2011] VSCA 348 (‘Johnson’).
[8][2011] VSCA 290 (‘Mansfield’).
[9][2014] VSCA 126 (‘Rich’).
[10][2011] VSCA 93.
[11][2010] VSCA 171.
[12][2008] VSCA 263.
[13][2006] VSCA 62.
[14][2010] VSCA 316.
[15][2013] VCC 650 (‘Khoder’).
On behalf of the respondent it was submitted that the sentence imposed was not wholly outside the range reasonably available. It was submitted that the armed robbery was in the very worst category of offending of this kind, and that it was committed by the appellant who has a very extensive criminal record including numerous acts of offending in a manner not dissimilar to this offence. It was submitted that the offence had been planned, had involved considerable preparation, and had been very dangerous.
In relation to the submissions made concerning Verdins it was submitted that senior counsel on the plea had disavowed reliance upon Verdins other than in relation to the effect of imprisonment. It was submitted that, in any event, the mental condition from which the appellant suffered could not lessen general or specific deterrence in this case.
In relation to the guilty plea it was submitted on behalf of the respondent that the sentencing judge had found ‘some evidence of remorse’ but that the discount for the guilty plea had been principally related to utilitarian benefit. The sentencing judge had correctly assessed that benefit as, on any view, in the context of assessing the utilitarian benefit, the plea was ‘late’.
The respondent submitted that what were said to be comparable cases were not comparable, other than Rich, Mansfield and Johnson where it was submitted that there were relevant similarities. It was submitted, although the sentence was ‘statistically high’, that was to be expected in a case such as this which fell within the worst category.
Ground 2 — In consequence of ground 1, total effective sentence and non-parole period are inconsistent with totality
On behalf of the appellant it was submitted that the imposition of a manifestly excessive sentence on the armed robbery charge had resulted in a total effective sentence and a non-parole period that were manifestly excessive. In this respect the matters relied upon in relation to ground 1 were repeated. It was also submitted that the total effective sentence of 18 years 2 months was ‘crushing’ and observations of Nettle JA in R v Beck[16] were relied upon in that regard.
[16][2005] VSCA 11 [24].
On behalf of the respondent it was submitted that the total effective sentence was within range. Adopting passages from the judgment of Weinberg JA, it was submitted that the cumulation associated with the siege had been ‘particularly moderate’. It was submitted that neither the total effective sentence nor the non-parole period were excessive.
Proposed ground 3 — Contempt Sentence and 2 months ‘cumulation’
The plea hearing was in April 2014. On 8 May 2014 the appellant was sentenced to a term of 5 months’ imprisonment by a different judge, Dixon J, in relation to an unrelated offence of contempt. Prior to delivering sentence the sentencing judge sought supplementary submissions on how he should approach the issue of cumulation and concurrency.
In the supplementary submission filed on behalf of the appellant it was submitted that the judge who had imposed the contempt sentence had not declared any time served by way of pre-sentence detention and that the 5 months term of imprisonment imposed for contempt had accordingly commenced on 8 May 2014. The appellant had been in custody since 23 May 2012. It was submitted on behalf of the appellant that the pre-sentence detention to be declared by the sentencing judge should accordingly be from 23 May 2012 to 8 May 2014. It was then submitted that by operation of s 15 of the Sentencing Act 1991 the contempt sentence would be served first and that in accordance with s 16 of the Sentencing Act the sentence to be imposed by the sentencing judge would be served concurrently with the contempt sentence unless an order was made to the contrary. The following submission was then made:
There are two legitimate available approaches to combining the two sentences:
(a)to order that part of the sentence that your Honour imposes be served cumulatively on the sentence imposed by Dixon J; or
(b)to operate in accordance with the presumption in section 16 that the sentences will be concurrent but to take into account the contempt offence in setting the non-parole period and/or the total effective sentence.
Either approach should result in the same outcome, namely a total effective sentence and a non-parole period that reflects the totality of all of the offending.
The prosecution supplementary submission was that pre-sentence detention should be calculated up to and including 7 May 2014. The passage in the appellant’s submission setting out the ‘two legitimate available approaches’ was said to be ‘agreed’ and to be ‘an accurate summation of the applicable legislative provisions’. The prosecution submission then proceeded to argue that the whole, or the greater part, of the sentences should be served cumulatively.
In accordance with the position put by both parties before him, the sentencing judge did not make any order for cumulation, declared pre-sentence detention up to and including 7 May 2014, and stated that rather than making orders for cumulation he had taken the earlier offence into account in setting the base sentence. The base sentence was imposed on the armed robbery charge. The sentencing judge said that he considered that two months of the contempt sentence should be served cumulatively on the sentence he was to impose.[17] The sentence imposed on the armed robbery charge, which was the base sentence, was 14 years and 2 months’ imprisonment.
[17]Sentencing Reasons [53].
The appellant now seeks leave to introduce a ground of appeal contending that the approach adopted by the sentencing judge, which senior counsel for the appellant with the agreement of senior counsel for the prosecution had submitted was an alternative open to him, was an error of law. It was submitted that the sentencing judge had wrongly ‘inflated’ the sentence for armed robbery and the total effective sentence by two months. It was submitted that the appellant had thereby been deprived of the time he had served between the imposition of the contempt sentence and the sentence imposed by the sentencing judge (15 days). It was also submitted that the sentence for armed robbery and the total effective sentence did not truly reflect the appellant’s criminality, and that the provisions of the Sentencing Act, in particular ss 14 to 16, had not been followed.
On behalf of the respondent, it was conceded that the approach which had been adopted was novel. It was submitted, however, that the approach adopted was that which had been jointly submitted by counsel for both parties. It was submitted that the 15 days had not been overlooked and that the declaration of pre-sentence detention made it clear that the sentencing judge was aware of the effect of the sentence he was imposing. It was submitted that the proposed ground constituted ‘merely a structural argument’ and that the same result could, and no doubt would, be produced by a re-structure under which orders for cumulation were made.
Proposed ground 4 — previous diagnosis of a post-traumatic stress disorder
The appellant was the victim of a serious assault in prison in 2006. The appellant must have made a claim for personal injury damages as a consequence of this assault because on 10 May 2013 a medical panel issued a certificate of determination pursuant to s 28LZG(2)(a) of the Wrongs Act 1958. According to a letter included within the materials, Slater & Gordon (who must have been acting for the appellant) provided a copy of that determination to the solicitor then acting on behalf of the appellant in his criminal matters on 28 October 2014. The appellant was sentenced in May 2014.
The medical panel was constituted by two plastic surgeons and two psychiatrists. The panel considered physical injuries suffered as a result of the assault and also psychological injuries. The panel conducted their examination at the Melbourne Assessment Prison. In relation to the psychological injuries, the panel set out what the appellant had told them about the assault and about the consequent psychological effects on him. His principal concerns, as expressed to the panel, appear to have arisen as a result of his concern at his own weakness in allowing himself to have become a victim of the attack. He expressed concern that other prisoners thought less of him as a result of the attack. He expressed the view that his reputation had been ‘canned’, that he felt ‘a lesser person’, and that he felt that he was ‘damaged goods’. The panel recorded him as saying that he had ‘lost face’ with other prisoners. The panel also recorded psychological impacts as a result of other traumatic events in the appellant’s past, in particular an assault in July 2007.
The panel’s relevant conclusion was as follows:
Based on the history provided by the Claimant, the referral documentation provided and the Panel’s findings on examination, the Panel concluded that the Claimant is suffering from a Post Traumatic Stress Disorder, relevant in part to the incident of 31 May 2006 and the assault of 21 July 2007, and also an Antisocial Personality Disorder, unrelated to the incident of 31 May 2006 or the assault of 21 July 2007.
The panel assessed the impairment as not more than 10 percent.
The appellant wishes to contend in the proposed additional ground that the conclusion that he suffered from a post-traumatic stress disorder, if the sentencing judge and the experts who did give evidence had been aware of it, would have ‘presented a clearer case for moderation’ of specific and general deterrence by reason of impairment of the appellant’s mental functioning. It was submitted that this evidence would have filled a ‘gap’ in revealing a connection sufficient to also reduce the appellant’s moral culpability. It was submitted that it would be a miscarriage of justice if this additional material were not now taken into account and that, if it were, a ‘completely different picture’ on the critical issue of the appellant’s mental state would emerge.
On behalf of the respondent it was submitted that the material sought to be relied upon was not admissible. No explanation had been given as to why the material had not been relied upon at the plea. It was submitted that, in any event, even if the material was admitted it makes no real difference given the very detailed and offence specific analysis undertaken by both Ms Matthews and Dr Sullivan. It was submitted that the medical panel determination adds nothing of significance to the material before the sentencing judge.
Analysis
Ground 1 — Manifest excess on armed robbery
In order to address the submission made that the sentencing judge ‘over weighted’ the seriousness of the offence it is necessary to set out in some detail what occurred in the armed robbery. The sentencing judge himself did that,[18] as did Weinberg JA.[19] The description below is drawn from the prosecution summary tendered on the plea, and from CCTV footage also tendered on the plea.
[18]Sentencing Reasons [15]–[17].
[19]Leave Reasons [20]–[25].
Early on the morning of Monday 19 March 2012 the appellant hired a white van from a rental company. He was a regular customer of the rental company and had previously provided his driver’s licence in the name of Christopher Pecotic.
Later that morning he drove the hired white van to an isolated location at the rear of the market pavilion of the Laverton Market. The Laverton Market operates on Saturdays and Sundays only. He parked beside a small dam.
The appellant unloaded from the van a green Kawasaki off-road motor cycle and strapped a sawn-off single barrel pump action shotgun in a yellow gun bag to the side of the motor cycle. He changed clothes. He drove the motor cycle a short distance to the Westside Hotel.
The appellant had carefully prepared an ‘ambush site’ close to the rear entrance of the hotel. The appellant had cut a hole large enough for a person to climb through in a cyclone wire fence at the end of the hotel staff car park. This hole enabled him to access a small walkway running between the hotel and an adjacent factory. The walkway is behind a fence which runs along the side of the car park of the hotel all the way to a point very close to the rear entrance. The appellant was able to wait in the walkway with the fence obscuring his presence close to the rear entrance of the hotel. At this point, behind the fence but close to the rear entrance of the hotel, the appellant had drilled 14 small holes in the fence in a horizontal line so that he could observe the car park and the rear entrance whilst remaining undetected himself. He had positioned a ladder there so that he could appear above the fence. He had also positioned a camping chair and had erected a bed sheet in such a way as to conceal his ‘ambush site’ from a CCTV security camera attached to the adjacent factory.
The appellant rode to the hotel and took up his prepared position at a time shortly before an Armaguard van drove into the rear car park for a scheduled pick up of cash. The van parked near the rear entrance of the hotel and two Armaguard guards entered the hotel through that rear entrance. They collected a consignment of cash totalling $235,090.05 which was placed into a bag. They then went out the rear entrance and back into the car park.
When the guards exited the hotel the appellant emerged from above the wooden fence wearing a dust mask, dark sunglasses and a hood over his head. He held the shotgun in both hands, pumped it and pointed it directly at the guard holding the bag of cash. He demanded that the guard throw the bag over the fence. The CCTV footage reveals that the guard threw the bag towards the fence but not over the fence. The appellant then demanded that the two guards lie face down on the ground, which they did. The appellant climbed over the fence and approached one guard. He pointed the shotgun at him and took his service revolver. He then demanded that the other guard also surrender his revolver, which that guard did. One of those revolvers was later used by the appellant in the siege at Keilor East. The other was found in the appellant’s storage facility.
The appellant collected the two revolvers and the cash bag, briefly approached the rear entrance of the hotel, and then climbed back over the fence.
The CCTV footage reveals that whilst all this was going on a member of the public, described in the plea as an elderly lady, was close to the two guards. That person initially took steps backward when the appellant first appeared, then went behind a car, before scurrying into the hotel through the rear entrance.
The appellant returned to the hired white van parked in the market area. He dumped the motor cycle, with the shotgun still attached, into the dam. He changed his clothes and drove away.
Unbeknownst to the appellant there was a CCTV camera in the Laverton Market grounds which recorded his preparations for the armed robbery and his return. Police quickly recovered the motor bike and the shotgun. The shotgun was found loaded with 7 x 12 gauge cartridges. It was not registered.
On the following day, Tuesday 20 March 2012, the appellant returned to the Laverton Market area on the pretext of inquiring about a market stall. He intended to attempt to retrieve the motor cycle and the shotgun but the police had already located and retrieved those items.
It is true that the appellant made a mistake in his planning in that he failed to identify the fact that there was a CCTV camera in the Laverton Market grounds. Otherwise it seems to us that this armed robbery was meticulously well planned and executed. The appellant located what must have seemed to him to be an isolated spot, unlikely to be observed but close to the hotel, to prepare for the robbery and to park the hired van. He clearly knew the time at which the Armarguard van was expected. The location which he chose for the armed robbery itself was close to ideal for his purposes, and he prepared it carefully and thoroughly. It must have taken him many hours of thought and preparation to put all of these arrangements in place.
It is submitted on behalf of the appellant that this armed robbery involved only a ‘basic level of planning’ and that it revealed a certain ineptitude by reason of the fact that the CCTV camera in the Laverton Market grounds recorded him preparing for the robbery and returning after it, and that he had hired the white van from a rental car company where he was known. It is true that the appellant made the single mistake that he did not identify the CCTV camera at the Laverton Market grounds. If he had done so the connection between the white van and the robbery might never have been revealed. The fact that he made a mistake does not seem to us to detract from the significance of the planning and preparation that had obviously gone into this armed robbery.
It was also submitted that the duration of the armed robbery was short and that there was no ‘gratuitous’ violence. So much may be accepted. On the other hand, the appellant took a loaded pump action shotgun into a public area for the purpose of confronting two guards, each armed with firearms themselves. It was always possible that a member of the public would be in the area where that confrontation occurred, and at least one member of the public was in the area, as is shown by the CCTV footage. It seems to us that the sentencing judge correctly characterised the position when he said:[20]
I regard the armed robbery as a very serious example of this sort of offence. It was planned and executed with precision. Your counsel observed that, with the proliferation of modern investigative tools (including CCTV), this type of armed robbery is not common these days. Whilst that may be so, when such crimes are committed they cause terror to those immediately involved and apprehension amongst the wider community.
[20]Sentencing Reasons [31].
The appellant’s personal history involving both armed robberies and firearms is significant in this context.
As a result of a series of armed robberies and escapes in Victoria and in New South Wales (four armed robberies in Victoria and two in New South Wales) in the 1990s the appellant spent 13 years in custody serving various sentences. He was released in February 2005, without having had any period on parole.[21]
[21]See: R v Binse, Reasons for Sentence, Judge Rizkalla, County Court of Victoria, 1 December 2006 [11]–[13]. These reasons form part of a folder of defence materials which were relied upon on the plea.
In 2006 the appellant committed offences of being a prohibited person in possession of an unregistered firearm, two offences of common law assault and drug possession offences. The assaults were constituted by pointing a loaded firearm at two persons working in a nightclub.[22] The appellant was sentenced to a total effective term of imprisonment of 4 years with a non-parole period of 2 years. The County Court judge who sentenced him on those offences particularly emphasised the very onerous conditions in which the appellant had served his prior sentences and the fact that he had been released without parole.[23]
[22]Ibid [20]–[22].
[23]Ibid [12]–[14].
The appellant was paroled on that 2006 sentence. The appellant’s parole was cancelled in September 2008; and when he was apprehended in December of that year he was in possession of drugs, false identity documents, prohibited weapons and an unregistered handgun.[24] On 12 April 2010 he was convicted in the Melbourne Magistrates’ Court of a number of offences including five offences of carrying a prohibited weapon and one offence of possession of an unregistered handgun. The appellant appealed the sentence which had been imposed in the Melbourne Magistrates’ Court on 12 April 2010, and on 8 October 2010 that sentence was reduced by a judge in the County Court to an aggregate sentence of 1 year. The appellant was released on 28 September 2011.[25] In March of the following year he carried out the armed robbery.
[24]Sentencing Reasons [10].
[25]Ibid.
The armed robbery offence which was the subject of charge 1 was, as the sentencing judge observed, ‘a very serious example of this sort of offence’. The appellant carried out the offence with a loaded shotgun. He had six prior convictions for armed robbery. The four prior Victorian armed robberies had been characterised by the judge who had sentenced him for those armed robberies as ‘about as bad as bank robberies can be’.[26]
[26]Ibid [3].
We do not accept that the sentencing judge ‘over weighted’ the seriousness of the armed robbery. The armed robbery itself was in the worst category. The offender had an extensive prior history of both armed robbery and firearm offences.
We turn then to the submissions made in relation to Verdins. The sentencing judge accepted the evidence called on behalf of the appellant from Dr Danny Sullivan and Ms Pamela Matthews. He accepted their diagnosis that the appellant suffered from a form of mixed personality disorder with antisocial and narcissistic traits. He also accepted the assessment they each made of the damage which had been done by the long periods of incarceration which the appellant had undergone in very difficult circumstances. He quoted extensively from their reports in that respect. The sentencing judge found that the appellant was ‘thoroughly institutionalised and suffering from a range of psychological consequences that impact on [his] capacity to deal with unrestricted prison life, or for that matter the outside world’.[27] The sentencing judge accepted that there was a serious risk that future imprisonment would have a significant adverse effect on the appellant’s mental health and he took that into account.[28] The sentencing judge otherwise observed:[29]
I am not persuaded that there is any other basis upon which your mental state ought influence the sentence on any of the charges.
[27]Ibid [40].
[28]Ibid [43].
[29]Ibid [45].
In oral submissions before us it was submitted on the appellant’s behalf that this aspect of ground 1 overlapped with proposed ground 4. Counsel accepted that on the material as it stood before the sentencing judge there was insufficient connection demonstrated between the mental condition and the offending conduct to lead to the application of Verdins principles beyond that which the sentencing judge had accepted. We will accordingly return to this issue in the context of proposed ground 4.
In relation to the submissions made concerning the guilty plea, we accept the submissions put on behalf of the respondent. The judge addressed the issue of remorse and found that there was some evidence of remorse. There was no submission made that he erred in that conclusion. As to utility, the sentencing judge assessed the utility of the plea by reference to what had happened. A contested committal had been conducted. The appellant’s own counsel accepted on the plea that the guilty pleas had to be characterised as being ‘late’.[30] In the circumstances we do not accept that there was a failure to give sufficient weight to the guilty plea or the finding on remorse.
[30]Transcript of Proceedings, R v Binse (Supreme Court of Victoria, Plea, Forrest J, 29 April 2014) 185.
The sentencing judge accepted all that was put to him in relation to the very onerous conditions under which the appellant is presently serving his sentence, conditions which are very likely to continue into the foreseeable future.
We do not accept the submissions made in relation to current sentencing practice. It is true that this sentence is at the top of the range. There are very good reasons why that is so. The sentence is not significantly ‘out of step’ with the sentences imposed in Rich, Johnson and Mansfield.
As has been repeatedly observed by this Court, manifest excess is a stringent ground, difficult to make out. It must be shown that something has gone obviously, plainly or badly wrong. The sentence imposed must be wholly outside the range of sentencing options available.
In this case it is impossible not to be struck by the terrible history of the appellant’s incarceration and by the onerous conditions of his present imprisonment. The sentencing judge was very conscious of those matters. Apart from the guilty pleas, they constituted the principal factors in mitigation. The appellant now finds himself in very isolated and burdensome conditions. He has been subjected to violence and threats of violence. The sentencing judge noted that he is considered at risk of self-harm. There is no doubt that he has suffered and continues to suffer significantly as a result of the circumstances of his incarceration. The circumstances which have led to his current situation are referred to extensively in the material and we have had regard to them all. The appellant’s life, and his current situation, might well be described as tragic. But the appellant has invariably responded to his situation by dangerous and violent behaviour on release. With an extensive criminal history of armed robbery and firearm offences, he planned and carried out an armed robbery with a pump action shotgun; obtained a large sum of cash, very little of which has been recovered; and subjected both the guards who were doing their jobs and the public to very great danger. The sentence is high. It is not outside the available range in these circumstances. Ground 1 is not made out.
Ground 2 — In consequence of ground 1, total effective sentence and non-parole period are inconsistent with totality
As ground 1 has not been made out, the consequential effect contended for in ground 2 is also not made out. We would add, however, that we agree with the observations of Weinberg JA to the effect that the cumulation associated orders on the offences in the course of the siege were particularly moderate. We reject the contention that the total effective sentence and the non-parole period are inconsistent with totality.
The submission that the sentence was ‘crushing’ was not expanded upon. Long sentences imposed for very serious offending are not by virtue of their length necessarily crushing.[31] Usually the issue arises in the context of cumulation and the cumulation here was moderate. We reject ground 2.
[31]Crowley v The Queen (1991) 55 A Crim R 201, 205–6; R v Gregory [2000] VSCA 212 [20]–[21].
Proposed ground 3 — Contempt sentence and 2 months ‘cumulation’
In DPP v Grabovac Ormiston JA, with whom Winneke P and Hedigan AJA agreed, explained the manner in which multiple sentences should be structured so as to give effect to the sentencing principles of totality and proportionality.[32] Ormiston JA explained that an appropriate sentence might be arrived at either by moderating individual sentences so as to reach an appropriate total or by imposing sentences without moderation and reaching an appropriate total through orders for cumulation and concurrency. He explained that the second approach was the preferable one, and the approach which ought to be adopted. He explained that the first approach can give rise to significant potential problems, most obviously the potential for the imposition of artificially high or low sentences on individual counts.
[32][1998] 1 VR 664 (‘Grabovac’).
The position addressed in Grabovac concerned the moderation of sentences in order to achieve an appropriate total sentence and what was said must be read in that context. But Ormiston JA did quote with approval a passage from the first edition of Fox and Freiberg’s Sentencing: State and Federal Law in Victoria where the learned authors had said:[33]
Aside from whether a sentence is ‘crushing’, the courts will assess whether the aggregate of all the sentences is appropriate for the criminal conduct when viewed as a whole. Each of the terms ordered may well be within an appropriate range, but if the total is thought to result in too severe punishment for the incidents in question, the sentences, or through a direction as to concurrency, the manner in which they relate to each other, may have to be adjusted. This can be an upward adjustment as well as a downward one.
[33]Ibid 680 quoting Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (Oxford University Press, 1985) 372 (emphasis added).
The submissions made to the sentencing judge by both counsel reflected the two approaches in Grabovac and submitted that the approach of adjusting the sentence, rather than addressing totality by orders for cumulation and concurrency, could be made upwards.
Obviously, adjustments to sentences in an attempt to accommodate totality and proportionality must not be made if they result in inadequate or excessive sentences. The approach of imposing appropriate individual sentences and then ordering cumulation or concurrency is the far preferable approach, for the reasons explained in Grabovac.
The sentencing judge here adopted the alternative approach, recognised as being open but as being significantly less preferable, in Grabovac. Grabovac was concerned with adjustments downward (save for the reference in the Fox and Freiberg quotation). As counsel for the respondent submitted, to rely on this approach so as to adjust a sentence upwards is novel. We do not consider that the matter ought to have been addressed in this way.
Our conclusion is, however, that the appellant should not be permitted to introduce this new ground. Our reasons are as follows:
(f) As counsel for the respondent submitted, allowing an appeal on this ground would not alter the ultimate outcome in any practical way. It is not suggested that the ‘cumulation’ of two months was not appropriate. The only outcome of a successful appeal on this ground would be a re-structuring which would not affect the practical operation of the sentence.
(g) The approach adopted by the sentencing judge did not result in an excessive sentence on the armed robbery charge, for the reasons we have already given.
(h) The approach adopted by the sentencing judge was in accordance with the submissions of senior counsel for the appellant.
(i) The sentencing judge did not overlook the 15 days. His declaration of pre-sentence detention shows he understood the effect of his disposition.
(j) Counsel on the appeal confirmed that Corrections Victoria understand and are implementing the sentence in the manner intended by the sentencing judge.
The appellant should not have leave to introduce this new ground.
Proposed ground 4 — Previous diagnosis of a post-traumatic stress disorder
Under proposed ground 4 the appellant seeks, in effect, to re-visit the sentencing judge’s analysis of Verdins with the addition of ‘new’ evidence constituted by the medical panel diagnosis of 10 May 2013 to which we have previously referred.[34] Where an appellant seeks to rely upon ‘new’ evidence in this manner the evidence must be sufficiently compelling to demonstrate that there has been a miscarriage of justice arising from the fact that that material had not been brought to the attention of the sentencing judge.[35]
[34]The evidence is not ‘fresh’ in the way described by Redlich JA in Duy Duc Nguyen v The Queen [2006] VSCA 184 [36]–[37].
[35]Rehal v The Queen [2015] VSCA 81 [26]; Betts v The Queen [2016] HCA 25 [10].
The issue to which the new evidence is said to be relevant is the application of the third and fourth considerations in Verdins, being moderation of general and specific deterrence.[36]
[36]Some reference was made in oral submissions to consideration 5 in Verdins but after the Court referred counsel to paragraph [40] of the Sentencing Reasons counsel did not pursue that matter.
In DPP v O’Neill this Court explained that the principles set out in Verdins operate to modify the significance of general deterrence where the offender suffers from a psychological disability which diminishes his or her capacity to form a rational judgment in relation to the offending.[37] The offender’s disability may be relevant in this context where it affects his or her mental capacity at either the time of the offending or at the time of sentence, but the mere existence of a particular mental impairment is not enough. There must be an evidentiary basis, a rigorous examination, and an informed assessment, of either how the disability diminished the offender’s capacity at the time of the offending to reason appropriately concerning the wrongfulness of his or her offending; or, how the condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing.[38] Before the first, second, third and fourth considerations enunciated in Verdins apply that rigorous examination and informed consideration must reveal the existence of a connection between the impairment of mental functioning and the offender’s moral culpability or the need for general or specific deterrence. If what is relied upon is an impairment existing at the time of the offending, there must be some realistic connection between the disability and the offending. It must be established that the disability affected the offender’s capacity to appreciate the wrongfulness of the conduct, or obscured his or her intent, or impaired the offender’s capacity to make calm and rational choices.[39]
[37][2015] VSCA 325.
[38]Ibid [43], [54]–[59] and [68].
[39]Ibid [74]–[75].
The material which was before the sentencing judge was, as earlier indicated, two reports by Ms Matthews, one by Dr Sullivan, and Ms Matthews’ oral evidence. The medical panel report relevantly concerned the appellant’s disabilities consequent upon assaults on him, in particular the assault in 2006. Dr Sullivan and Ms Matthews also addressed that issue.
The first report by Ms Matthews was dated 16 September 2010 and was prepared for the purposes of the appeal to the County Court in relation to the offences committed in 2008. In that report Ms Matthews set out the circumstances of the offending. The explanation given to her by the appellant for ceasing to report to his parole officer, which led to the cancellation of his parole and his eventual apprehension with drugs and weapons, was similar to the explanation given for the offending in relation to the matters now under appeal. Ms Matthews set out in detail the history of the appellant’s incarceration and referred in particular to the significant impact of the assault in 2006. She expressed the opinion that his presentation was ‘consistent with symptoms of post-traumatic stress disorder’. She went on to say that while it was unclear if he would meet the full diagnostic criteria her view was that ‘he would meet most’. She expressed the opinion that there was a ‘clear linear psychological connection’ between the assault in 2006 and his behaviour when released on parole. She referred to the psychological impact which the trauma of his imprisonment over many years had had.
Ms Matthews’ second report dated 14 April 2014 was prepared for the purpose of the plea in relation to the matters now the subject of the appeal. Ms Matthews gave a detailed history, addressing in particular the circumstances in which the appellant had served his terms of imprisonment and the support, or absence of support, which he had had when released. She referred to transient psychotic episodes. Relevantly for present purposes she observed: ‘Mr Binse has in the past and present been observed with symptoms consistent with Post Traumatic Stress Disorder and in particular fixated ruminative thought in regard to the 2006 assault‘. She made the observation that Mr Binse’s fears were ‘not necessarily divorced from reality’. We have already referred to her eventual diagnosis, which the sentencing judge accepted.
Dr Sullivan’s report dated 19 January 2014 was prepared for the purpose of the plea in relation to the sentences now under appeal. He also set out a detailed history and referred in particular to the assault in 2006. Dr Sullivan reviewed Ms Matthews’ 2010 report and prison medical records from both New South Wales and Victoria. Relevantly for present purposes, Dr Sullivan said:
Mr Binse has drawn attention to the diagnosis of post-traumatic stress disorder. What he refers to is the cumulative effect of living in the straitened circumstances of management units and isolation, which are associated with distress, fear of harm, and helplessness. He also reports past traumas involving believing that he was about to be killed by police or others. It is difficult to determine a specific triggering incident from many that he has endured. … Although he might meet the diagnostic criteria for post-traumatic stress disorder, it is perhaps more appropriate to regard his condition as an adaptation to prolonged incarceration in austere circumstances, as well as a number of attacks on him associated with prison life and his lifestyle outside prison.
In Ms Matthews’ 2014 report she reached a very similar conclusion on this point. She said:
In the writer’s view, Mr Binse’s personality, his coping skills or lack thereof, his mental state fluctuations, chronic post trauma symptomatology, and aberrant behaviours, are all a product of long periods in restrictive custody, which over the course of a potentially lengthy sentence can only be further exacerbated by more custodial time in similar, very onerous environments.
The sentencing judge accepted the opinions of Dr Sullivan and Ms Matthews and quoted the two passages we have just quoted.
We have previously set out the relevant contents of the medical panel report from 2013. The basis upon which a miscarriage of justice is postulated is that the panel determination had the potential to significantly alter the analysis of the application of Verdins principles, specifically those concerning general deterrence and specific deterrence.
The material which was before the sentencing judge did not establish the kind of connection between the appellant’s mental condition and the offending which would have been necessary in order to moderate general deterrence. In our view it has not been shown that the panel determination could have altered that position. Ms Matthews had assessed the appellant twice, and Dr Sullivan, whilst only having assessed him once for a comparatively brief period, had reviewed the relevant medical records. It is clear from their reports that they had considered the effect of the 2006 assault and the consequential psychological impact of that assault. They concluded that that matter was only a part of a far more complex psychological picture. The 2013 panel determination was not directed at issues concerning offending behaviour. It addressed the 2006 assault in the context of a personal injury claim. It adds little or nothing to the analysis of the connection between the appellant’s mental state and the offending in the manner set out in O’Neill.
As to specific deterrence, none of the psychological material suggests a basis for moderation.
Given the detailed offence-specific analyses which the sentencing judge did have, we consider that the appellant has not demonstrated that a failure to put the panel determination before the sentencing judge constitutes a miscarriage of justice.
As the appellant has failed to demonstrate the existence of a relevant miscarriage of justice as a result of the panel determination not being before the sentencing judge, he should not have leave to rely on proposed ground 4.
Conclusion on the appeal and the application to rely upon new proposed grounds
For these reasons, the application to rely on the two new proposed grounds is refused, and the appeal is dismissed.
Other material placed before the Court
Considerable material referrable to activities undertaken by the appellant since sentence was placed before the Court to be relied upon should the appellant be re-sentenced. This material reveals that the appellant has, amongst other things, confessed to other offending in circumstances where it was most unlikely that he would otherwise have been identified as the offender, and has exerted considerable efforts (in excess of 300 hours) in an attempt to make a contribution to warning others, particularly young offenders, of the consequences of crime. As we are not re-sentencing the appellant, we will not address that material further.
After the appeal had been heard a large volume of additional material was delivered to the Court from the appellant himself. The covering letter revealed that this material was also referrable to his rehabilitation efforts and that he had wished it to be submitted by his legal counsel who had advised him against that course. The Court could not have relied upon that material for the reasons set out in Frugtniet v Law Institute of Victoria Ltd.[40]
[40][2012] VSCA 178 [44]–[47].
A further handwritten letter was then received from the appellant complaining, in substance, as to the manner in which the submissions had been made on his behalf. We read that letter only to ensure there was nothing in it which could relevantly alter our analysis. There was not.
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