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Court of Criminal Appeal 22 November 2000

R v Binnie

[2000] NSWCCA 483

Assault & violenceTheft & property
SENTENCES SEVERITY APPEAL ROBBERY

Citation: R v Binnie [2000] NSWCCA 483
Court: New South Wales Court of Criminal Appeal
Date: 22 November 2000
Judge(s): Barr J; Carruthers AJ

Background

The appellant pleaded guilty in the Gosford District Court to one count of robbery under s 94 of the Crimes Act 1900, carrying a maximum penalty of 14 years imprisonment. The offence involved the armed robbery of a post office at Long Jetty on 1 July 1999, during which the appellant wore a balaclava and used a plastic bag to conceal his hand while demanding money. Approximately $1,000 was taken, and the victim expressed significant fear during the incident.

The appellant had an extensive criminal record dating back to 1977, including prior convictions for armed robbery attracting lengthy custodial sentences. At the time of the offence, he was on parole from a previous term of imprisonment. He was arrested the same day, having spent roughly $400 of the stolen money gambling at a nearby recreation club.

Kirkham DCJ sentenced the appellant to a minimum term of six years and nine months, commencing 29 March 2000, with an additional term of two years and three months. The appellant sought leave to appeal on the basis that the sentence was manifestly excessive.

  • Whether the sentencing judge gave excessive weight to the appellant's prior criminal record as an aggravating factor
  • Whether the overall sentence was manifestly excessive for a single offence of robbery, having regard to comparative cases and sentencing statistics
  • Whether special circumstances existed that warranted a departure from the statutory ratio between minimum and additional terms

Decision

The Court of Criminal Appeal found that the sentence was manifestly excessive. Carruthers AJ observed that, working back from the minimum and additional terms imposed, the effective head sentence was approximately twelve years out of a maximum of fourteen, a significant penalty for what the sentencing judge himself had assessed as a mid-to-upper range instance of robbery simpliciter. Comparative decisions and Judicial Commission sentencing statistics reinforced this conclusion, with statistics indicating that only one other sentence of equal or greater length had been imposed for this offence in the preceding decade.

The Court acknowledged the appellant's serious criminal history and the legitimacy of treating his parole status as an aggravating circumstance. However, applying the principle from Veen v The Queen [No 2], the Court accepted that a prior criminal record cannot be used to punish an offender beyond what is proportionate to the current offence. The combination of comparative case analysis, statistical material, and the sentencing judge's own assessment of objective seriousness led the Court to conclude the sentence could not be sustained.

The Court also noted fresh evidence that the appellant had made productive use of his time in custody, engaging in education and addressing his offending behaviour. While acknowledging this, the Court observed that the appellant's history meant the burden would lie firmly on him to satisfy parole authorities at the appropriate time.

Orders Made

  • Leave to appeal granted
  • Sentence imposed by Kirkham DCJ set aside
  • In lieu, the appellant sentenced to seven years imprisonment commencing 29 March 2000 and expiring 28 March 2007, with a non-parole period of four years
  • The appellant eligible to apply for parole from 28 March 2004

Key Takeaways

  • A prior criminal record may be treated as a relevant sentencing consideration, but under the principle confirmed in Veen v The Queen [No 2], it cannot be used to impose a sentence disproportionate to the objective seriousness of the offence for which the offender is being sentenced.
  • Being on parole at the time of the offence is a recognised aggravating circumstance; a prior criminal record, while relevant, occupies a distinct and more limited role in the sentencing exercise.
  • Judicial Commission sentencing statistics are a legitimate comparative tool, though the Court confirmed they must be approached with caution given the inherent limitations in what such data captures.
  • In dismissing the original sentence, the Court of Criminal Appeal applied an analysis working backwards from the effective head sentence to assess proportionality against both the statutory maximum and the sentencing judge's own finding on objective seriousness.
  • Fresh evidence of rehabilitation and productive custodial conduct may be placed before the Court of Criminal Appeal on a severity appeal, and the Court considered it alongside other sentencing factors in substituting a new sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 94 (robbery)

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