Finnie v The Queen - [2003] HCATrans 401

[2003] HCATrans 401

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S16 of 2003

B e t w e e n -
SYDNEY THOMAS FINNIE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 2003, AT 11.53 AM

MR R.A. BONNICI: Your Honours, I appear with my learned colleague, MS S.M. KLUSS, for the applicant. (instructed by S. Moran & Co)

MR D.C. FREARSON: I appear for the respondent, if the Court pleases. (instructed by the Solicitor for Public Prosecutions (NSW))

McHUGH J: Yes, Mr Bonnici.

MR BONNICI: Thank you, your Honour. Your Honour, the applicant in this case contends that the Court of Criminal Appeal, in allowing the Crown appeal and in re‑sentencing in the fashion that it actually did, effectively erred in much the same way that the determination was made that the sentencing judge had erred.

By this, I mean that the fundamental discretion which this particular sentencing judge had in this particular case over a two year period was such that his assessment and his discretion, particularly to the individual subjective factors, which saw him effectively say that a three‑year sentence was warranted and a period reducing that sentence for many of the varying subjective factors like the assistance, which was discussed in the closed court, the time that he had spent in maximum security, his ailing health, his age, were of such a kind, your Honours, that they allowed his assessment of those factors to effectively allow him to impose the sentence that he did.

The Court of Criminal Appeal effectively, in allowing the Crown appeal, basically said that that discretion was so wrongly misapplied that it warranted increasing the sentence, because too much weight was given, or, effectively, not enough weight was given to the objective gravity and seriousness of the offences. But, your Honours, when we look at what his Honour Mr Justice Dunford, who gave the sentence and the remarks on sentence in the Court of Criminal Appeal, and what his Honour Judge Coorey say, they both recognise and they both state the seriousness of the offences. They both state the impact on the victims. They both state the fact that this was for different offences.

The part, I think, where there is a slight diversion is in relation to the total amount, in that when your Honours look at the Form 1 matters, they were enabling‑type offences, in that the total amount in the figure – and even Mr Justice Dunford agreed to this – is not in issue, but it is the criminality of the matter. To have gone into the nuts and bolts of how much money was owing or lost in the compensating was not done because it would have prolonged even further what already was too long a sentencing process. So the sentencing judge looked at all those…

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 Finnie v The Queen

Details

AGLC: Finnie v The Queen [2003] HCATrans 401
Case: [2003] HCATrans 401
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Finnie, against his conviction for armed robbery. The applicant had been convicted in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. The High Court granted special leave to appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the issue of whether the applicant had acted under duress. Specifically, the court had to determine if the evidence presented was capable of supporting a defence of duress, and if so, whether the jury had been properly instructed on the elements of that defence, including the requirement for an immediate or imminent threat of death or serious injury.

The High Court, comprising McHugh J and Heydon J, analysed the evidence in relation to the defence of duress. Their Honours noted that for duress to be available, the threat must be of such a nature that the person could not be expected to resist it. They found that the evidence did not establish that the applicant was acting under an immediate or imminent threat of death or serious injury, nor that he had no reasonable opportunity to escape the threatened danger. Consequently, the defence of duress was not open on the facts presented.

The High Court therefore dismissed the appeal, upholding the applicant's conviction.

Orders