R v Binnie [2000] NSWCCA 483

New South Wales Court of Criminal Appeal

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 Kirkham DCJ OFFICER :

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 R v Fraser [1999] NSWCCA 212 R v Sweetman [2000] NSWCCA 228 CASES CITED: 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 to date from 10 February 1998. The applicant was released to parole in August 1998, and one immediately notes that he did not obtain parole at the expiration of the minimum term. 4 However, be that as it may, on 1 July 1999 he committed the subject robbery. He was arrested on that day and refused bail. Prior to coming before Kirkham DCJ for sentence on 12 November 1999, the applicant was sentenced by the Wyong Local Court on 11 August 1999 in respect of a number of matters, the most serious resulting in a sentence of a fixed term of imprisonment of nine months to date from 1 July 1999 and to expire on 31 March 2000. Reference has already been made to this sentence. 5 It is not with surprise that one notes that during the course of his remarks on sentence Kirkham DCJ referred to the applicant as a recidivist. The relevant facts of the subject offence may be shortly described. On the afternoon of 1 July 1999 the applicant entered the post office at Long Jetty at which time there were two persons in the post office, the licensee-owner and a customer. The applicant had covered his face with a balaclava. The applicant approached the owner and the customer and pointed a plastic bag covering one of his hands towards the owner. He demanded money from her and placed another plastic bag on the counter for that purpose. About one thousand dollars in cash was then placed in the bag by the owner and the applicant left the post office and was seen to drive off in a vehicle. Interestingly, there were different number plates on the front and rear of the vehicle. However one plate was clearly capable of being traced by investigating police officers. The numbers on the plates were taken down by various people who happened to be in the area when this robbery was committed, as the applicant drove off. Thus it was that a little later in the day the applicant was arrested at the Mingara Recreation Club, by which time he had already dissipated something to the order of four hundred dollars of the stolen money, gambling on poker machines. 6 There was before the sentencing judge a statement by the licensee of the post office, which stated: " I was terrified by this person. I felt that I or the lady customer may have been injured if I did not co-operate with the man and give him the money. At this stage I do not have the exact amount that was stolen. It would have been just over a thousand dollars." 7 In his remarks on sentence, Kirkham DCJ said: "The statements of the people concerned, particularly that of Miss Grady, the licensee, illustrates that she was in significant fear and terror when the demand for money was made in the way that I have indicated by the prisoner. It is a well-known fact that people who suffer traumas of this nature suffer for many years to come and these Courts are constantly reminded of the terrible long-term disabilities and influence and fear and stress that are left in their wake. The community is entitled to be protected from acts like this and the only way the Courts can do it is by way of punishment. Objectively it is a serious offence. It is one which is probably in the range of objective seriousness around about mid to upper range. The legislature has provided a maximum penalty of some fourteen years for worst case scenario, so the criminality is moderate to serious."