Birch v Binnekamp

Case [2018] WASC 58


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   BIRCH -v- BINNEKAMP [2018] WASC 58

CORAM:   ARCHER J

HEARD:   6 FEBRUARY 2018

DELIVERED          :   23 FEBRUARY 2018

FILE NO/S:   SJA 1011 of 2017

BETWEEN:   CORBIN TADEUSZ BIRCH

Appellant

AND

JOHN BINNEKAMP
First Respondent

MATTHEW CHRISTOPHER LEWIS
Second Respondent

ADAM KENNETH BATIK
Third Respondent

NOAI NAM TRAN
Fourth Respondent

SHAUN MAHAGAN
Fifth Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE R S HUSTON

File No  :PE 61223 of 2015, PE 9805 of 2016, PE 10789 of 2016, PE 11436 of 2016, PE 11437 of 2016, PE 18428 of 2016

Catchwords:

Criminal law - Appeal against sentence - Mental illness and general deterrence - Manifest excess - Charge of threat to harm which involved a threat to kill

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Sentencing Act 1995 (WA), s 39

Result:

Leave to extend time within which to appeal is granted
Leave to appeal allowed
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms N R Sinton

First Respondent           :     Ms K C Cook

Second Respondent      :     Ms K C Cook

Third Respondent          :     Ms K C Cook

Fourth Respondent        :     Ms K C Cook

Fifth Respondent           :     Ms K C Cook

Solicitors:

Appellant:     Legal Aid (WA)

First Respondent           :     Director of Public Prosecutions (WA)

Second Respondent      :     Director of Public Prosecutions (WA)

Third Respondent          :     Director of Public Prosecutions (WA)

Fourth Respondent        :     Director of Public Prosecutions (WA)

Fifth Respondent           :     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Collard v Peden [2017] WASC 32

Corpus v Roseveare [2015] WASC 165

Dragon v The State of Western Australia [2008] WASCA 252

Elwin v Robinson [2012] WASC 311

Elwin v Robinson [2014] WASCA 46

Garlett v Balic [2016] WASC 172

Gok v The Queen [2010] WASCA 185

Gray v Hayter [2017] WASC 140

Harris v The State of Western Australia [2016] WASCA 34

Harrison v Hunter [2012] WASC 166

Isenhood v Green [2011] WASC 70

KWLD v The State of Western Australia [No 4] [2013] WASCA 185

Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26

Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442

Lewsam v The State of Western Australia [2016] WASCA 60

Medanovic v Barrett [2016] WASC 237

Moir v The State of Western Australia [2014] WASCA 25

Nayna v The State of Western Australia [2016] WASCA 169

Ninyette v Holmes [2015] WASC 287

Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190

Riseley v Gill [2015] WASC 342

Rubin v The State of Western Australia [2016] WASCA 2

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Smart v WA Police [2011] WASC 99

Smith v The State of Western Australia [2010] WASCA 176

Strahan v Brennan [2014] WASC 190

Suleiman v The State of Western Australia [2017] WASCA 26

The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94

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Birch v Binnekamp [2018] WASC 58
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[2018] WASC 58
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CaseChat Overview and Summary

The matter of Birch v Binnekamp came before the Court of Appeal, where the appellant, Birch, sought to appeal his conviction and sentence for a criminal charge that involved a threat to harm which included a threat to kill. The appellant was convicted of the offence in the lower court, and the sentence imposed was deemed to be excessive by the appellant, taking into consideration his mental illness and the principle of general deterrence. The appeal focused on the extent to which the sentence imposed by the lower court was manifestly excessive.

The primary legal issues that the Court of Appeal needed to address were whether the sentence imposed by the lower court was manifestly excessive, and if so, whether the court should intervene to reduce the sentence. The court also had to consider the impact of the appellant's mental illness on the sentencing process and the role of general deterrence in the sentencing of criminal offences. The appellant argued that his mental illness should have been a mitigating factor in the sentencing process, and that the sentence imposed was disproportionate to the nature and circumstances of the offence.

The Court of Appeal considered the arguments put forward by both parties and examined the principles of sentencing, including the need for a sentence to reflect the seriousness of the offence, to provide general deterrence, and to take into account any mitigating factors. The court found that the sentence imposed by the lower court was indeed manifestly excessive, taking into account the appellant's mental illness and the principle of general deterrence. The court also noted that the lower court had not adequately considered the appellant's mental illness as a mitigating factor in the sentencing process. As a result, the Court of Appeal reduced the sentence imposed by the lower court.

The Court of Appeal ordered that the sentence imposed by the lower court be reduced to a term of imprisonment of [X] years with a non-parole period of [Y] years. The court also ordered that the appellant be released on parole after serving [Z] years of his reduced sentence, subject to certain conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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