Christopher Dean Binse and v The Queen and - [2014] VSCA 329

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0121

CHRISTOPHER DEAN BINSE

Applicant

THE QUEEN

Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 December 2014
DATE OF JUDGMENT:	15 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 329
JUDGMENT APPEALED FROM:	R v Binse [2014] VSC 253 (T Forrest J)

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CRIMINAL LAW – Sentence – Multiple charges – Applicant sentenced to 14 years and 2 months’ imprisonment in respect of one charge of armed robbery as component of total effective sentence of 18 years and 2 months – Whether sentence on charge of armed robbery manifestly excessive – Sentence not manifestly excessive – No reasonable prospect of total effective sentence being reduced – Leave to appeal refused – Criminal Procedure Act 2009 ss 278, 280.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Holt SC	Victoria Legal Aid
For the Crown	Mr R A Elston QC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA

The applicant seeks leave to appeal against a sentence of imprisonment imposed on 23 May 2014. The sentence related to two indictments, hereafter referred to as ‘Indictment No 1’ and ‘Indictment No 2’.
The applicant pleaded guilty to two charges on Indictment No 1, being one count of theft, and one count of being a prohibited person in possession of a firearm (charges 7 and 8 respectively). Following a trial in the Supreme Court, he was acquitted of six further charges on that indictment.
In respect of Indictment No 2, the applicant pleaded guilty to four charges, being armed robbery (charge 1), use of a firearm whilst a prohibited person (charge 2), reckless conduct endangering persons (charge 3) and being a prohibited person in possession of a firearm (charge 4).
On 23 May 2014, the applicant was sentenced in respect of the offences referred to above as follows:

Charge Offence Maximum Sentence Cumulation

Indictment No 1

7 Prohibited person possess a firearm [Firearms Act 1996 s 5(1)] 10 years 2 years
6 months

8 Theft [Crimes Act 1958 s 74] 10 years 1 month -

Indictment No 2

1 Armed robbery [Crimes Act 1958 s 75A] 25 years 14 years, 2 months Base

2 Prohibited person use a firearm [Firearms Act 1996 s 5(1)] 10 years 6 years 2 years

3 Reckless conduct endangering persons [Crimes Act 1958 s 23] 5 years 2 years 6 months

4 Prohibited person possess a firearm [Firearms Act 1996 s 5(1)] 10 years 4 years 1 year

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

Something further should be said regarding the base sentence of 14 years and 2 months’ imprisonment imposed in relation to charge 1.
On 8 May 2014, the applicant commenced serving a 5-month term of imprisonment in respect of an unrelated offence. The sentencing judge in the present…

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.

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Details

Case: [2014] VSCA 329
Decision Date: 15 December 2014

CaseChat Overview and Summary

In the case of Christopher Dean Binse and The Queen, the High Court of Australia was asked to determine whether the sentence imposed on the applicant was manifestly excessive, and whether there was a reasonable prospect of the total effective sentence being reduced. The applicant was sentenced to a total effective term of 18 years and 2 months’ imprisonment, including 14 years and 2 months for a charge of armed robbery. The applicant argued that the sentence for the armed robbery charge was excessive and that the total effective sentence should be reduced.

The court was required to decide whether the sentence imposed on the applicant for the armed robbery charge was manifestly excessive and whether there was a reasonable prospect of the total effective sentence being reduced. The court considered the principles of sentencing, the relevant statutory framework, and the arguments presented by both parties. The court also assessed the totality principle, which involves considering the overall sentence rather than individual components.

The court found that the sentence on the charge of armed robbery was not manifestly excessive, and there was no reasonable prospect of the total effective sentence being reduced. The court emphasised the need to consider the totality of the sentence and the seriousness of the offences committed by the applicant. The court further noted that the applicant had a significant criminal history and had committed a violent crime in the course of his imprisonment. The High Court refused leave to appeal under the Criminal Procedure Act 2009.

Orders