R v Binnie - [2000] NSWCCA 483

CITATION: R v Binnie [2000] NSWCCA 483

FILE NUMBER(S): CCA 60733/99

HEARING DATE(S): 22/11/00

JUDGMENT DATE:
22 November 2000

PARTIES :

Regina v Allan Binnie

JUDGMENT OF: Barr J at 19; Carruthers AJ at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0387

LOWER COURT JUDICIAL
OFFICER : Kirkham DCJ

COUNSEL : (Applicant): R J Button
(Crown): W G Dawe QC

SOLICITORS: (Applicant): D J Humphries
(Crown): S E O'Connor

CATCHWORDS: Sentences - severity appeal - robbery - whether sentencing judge gave excessive weight to appellant's prior criminal record.

LEGISLATION CITED: Crimes Act 1900, s 94

CASES CITED:
R v Fraser [1999] NSWCCA 212
R v Sweetman [2000] NSWCCA 228
R v Wheeler [2000] NSWCCA 34
R v Jolley [2000] NSWCCA 69
R v Gower (1991) 56 A Crim R 115
Veen v The Queen [No 2] (1987-1988) 164 CLR 465

DECISION: See paragraph 18

IN THE COURT OF
CRIMINAL APPEAL

60733/99

BARR J

CARRUTHERS AJ

Wednesday 22 November 2000

REGINA v Allan BINNIE

JUDGMENT
1 CARRUTHERS AJ: Allan Binnie seeks leave to appeal against the asserted severity of a sentence imposed upon him by Kirkham DCJ at the Gosford District Court on 12 November 1999. On that occasion the applicant adhered to a plea of guilty to one count of robbery under s 94 of the Crimes Act 1900, as amended. This offence carries a maximum penalty of imprisonment for fourteen years. At the time of sentence the applicant was serving a fixed term of nine months imprisonment from 1 July 1999 to 31 March 2000 in relation to a conviction for obtaining money by deception. That sentence was imposed at the Wyong Local Court on 11 August 1999.
2 His Honour sentenced the applicant to a minimum term of six years and nine months imprisonment to commence on 29 March 2000 and to expire on 28 December 2006 with an additional term of two years and three months to commence on 29 December 2006 and to expire on 28 March 2009.
3 The applicant was born on 15 November 1960 and accordingly was 38 years of age at the date of sentence. He has a long history of criminal offences commencing on 16 June 1977 when he was sentenced to probation for two years by the Albion Street Children’s Court for the offence of break enter and steal. His first conviction for a major crime was on 21 July 1986 when he was sentenced to ten years imprisonment for two counts of armed robbery with a non-parole period of six years. Within less than four years he was released to parole which he breached. On 3 September 1991 he came before the Sydney District Court on one count of robbery whilst armed, two counts of robbery with arms and wounding. On each charge the applicant was sentenced to a minimum term of seven years imprisonment from 11 February 1991 to expire on 10 February 1998 with an additional term of two years and four months…

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 R v Binnie

Details

AGLC: R v Binnie [2000] NSWCCA 483
Case: [2000] NSWCCA 483
Decision Date: 22 November 2000

CaseChat Overview and Summary

The case of R v Binnie involved the appellant, Binnie, who was convicted of robbery. Binnie appealed against the severity of the sentence imposed, arguing that the sentencing judge had placed undue emphasis on his prior criminal record. The appeal was heard in the High Court of Australia.

The central legal issue before the court was whether the sentencing judge had erred in giving excessive weight to Binnie's prior criminal history when determining the appropriate punishment. The court had to consider the principles of sentencing, particularly the balance between punishment and deterrence, and whether the sentence imposed was manifestly excessive. The appellant argued that his criminal record, while relevant, should not have overshadowed other mitigating factors and the circumstances of the current offence.

The court examined the sentencing principles and the discretion afforded to the trial judge in determining the appropriate sentence. It noted that while prior criminal history is a relevant consideration, it must not dominate the sentencing process to the exclusion of other factors. The court found that the sentencing judge had considered the appellant's criminal history along with other relevant matters but did not believe the weight given was excessive. The appeal was ultimately dismissed, with the court upholding the original sentence as appropriate and not manifestly excessive.

No further orders were made by the court in relation to the sentence. The decision reinforces the importance of a balanced approach to sentencing, where prior criminal history is one of many factors to be considered.

Orders