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." 8 His Honour then went on to say: "I note as an aggravating feature, the extensive criminal history of the prisoner." 9 His Honour also noted what he described to be an aggravating feature, that the offence was committed while the applicant was on parole from a lengthy term of imprisonment. His Honour specifically stated that he did not consider it appropriate to set a penalty which would commence prior to the expiry of the term of imprisonment fixed by the Local Court at Wyong, to which I have made reference. His Honour made no reference to special circumstances and it will have been noted he did not disturb the statutory relationship. 10 Counsel for the applicant, Mr Button, has pointed out that if one leaves aside the period of eleven months which the applicant spent on parole between 1998 and 1999 he will have spent a minimum of fifteen years in custody before being eligible for consideration for release to parole, and when one balances this against the additional term of two years and three months, a disproportionate ratio is disclosed. Thus it is argued that Kirkham DCJ erred in failing to find special circumstances. In arguing that the sentence was manifestly excessive it was argued that there must be some distinction between sentences imposed for simple robbery and armed robbery: see R v Fraser [1999] NSWCCA 212 and R v Sweetman [2000] NSWCCA 228. 11 Reliance was also placed upon the Judicial Commission sentencing statistics which record that only one sentence equal to or greater than the full term imposed upon the applicant was imposed for this offence between January 1990 and July 1999. The same observation applies to the minimum term. It is of course acknowledged that one approaches these statistics, without meaning any disrespect to those who prepared them, with a degree of caution because of the limitations inherent in them. 12 Mr Button for the applicant referred this Court to comparative cases of recent origin, namely R v Wheeler [2000] NSWCCA 34 and R v Jolley [2000] NSWCCA 69. It was submitted that his Honour erred in referring to the applicant's antecedent criminal history as an aggravating feature. Such, it was argued, may be contrasted with being on parole at the time of the commission of the offence which is acknowledged to be an aggravating feature. In this context it was submitted that the learned sentencing judge gave excessive weight to the criminal record of the applicant. It was also submitted that the applicant was precisely the kind of person who would require an extended period of supervision in the community after serving another lengthy sentence. Indeed the applicant's failure to rehabilitate himself after release from gaol demonstrated the need for extended help. Support for this view was sought and may be obtained from R v Gower (1991) 56 A Crim R 115 at 120. 13 On the other hand, Mr Dawe of senior counsel for the Crown, submitted that there was no basis upon which his Honour could have found the existence of special circumstances. The fact of the applicant's recidivist behaviour could not reasonably be considered to be a ground for special circumstances, he submitted. As to the applicant's prior criminal record the Crown referred us to the well-known decision of the High Court in Veen v The Queen [No 2] (1987-1988) 164 CLR 465 wherein it was formulated that although antecedent criminal history is a factor which may be taken into account in determining the sentence to be imposed, it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the offence. 14 It is relevant, however, to show whether the offence is an uncharacteristic aberration or whether it manifests a continuing attitude of disobedience to the law. If the latter, retribution and protection of society may all indicate that a more severe penalty is warranted. Mr Dawe submitted that the present case fell precisely within the principles there laid down by the High Court and that this applicant had manifested a continuing attitude of disobedience to the law, which warranted a more severe penalty than otherwise would have been the case. 15 Bearing in mind the age of the applicant, the long period of time he has already served in gaol and the heavy sentence which his Honour imposed, the case necessarily presents itself as a difficult one. The Court has, if I may say so, been very much assisted in the resolution of the problem by the very careful, concise, helpful and realistic submissions that have been made both by Mr Button on behalf of the applicant and Mr Dawe QC on behalf of the Crown. 16 As Mr Button pointed out, one should allow for the early plea of guilty a discount to the order of twenty-five per cent, which is not unrealistic particularly bearing in mind, as the presiding judge pointed out, the plea of guilty alleviated the need for the Crown to call the two occupants of the post office at the time of the robbery, both of whom had been distressed by what had happened. An allowance of twenty-five per cent indicates that his Honour could realistically be taken to have been looking at a overall head sentence to start with of something like twelve years against a maximum penalty of fourteen years, and against his own finding that the case was in the range of objective seriousness around about the mid to upper range. When one takes that analysis and contrasts this case with cases such as Jolley, and Wheeler, and considers, subject to the limitations that I have referred to, the statistical material before the Court, I am irresistibly led to the conclusion that that this sentence was manifestly excessive for one offence of robbery simpliciter, bearing in mind that it was considered by the sentencing judge to be around about the mid to upper range of seriousness. 17 It seems to me, by reference to other decided cases in this Court, and the statistical analysis, and bearing in mind the subjective material which has been supplemented by fresh material put before this Court today one can see that the applicant has utilised his time in gaol in a most productive way, according to his education officer, in an attempt to change his lifestyle and address his offending behaviour. Indeed this applicant has no alternative but to change his lifestyle and address his offending behaviour, otherwise he will spend virtually the rest of his life in a Corrective Services institution. In view of his history, of course, he has the onus of satisfying the appropriate authorities at the relevant time that he has made out a case to be released to parole. 18 It was an extraordinary case in many ways, bearing in mind the inept way in which the crime, serious as it was, was carried out and the almost inevitability that the applicant was going to be arrested very shortly, bearing in mind the fact that one of the number plates was registered in the name of his mother, and secondly that he only decamped to the nearby vicinity where he attempted, presumably, to recover some of his financial losses by gambling. In any event, balancing the objective and the subjective aspects of the case, I would propose that leave to appeal be granted and that the sentence imposed by Kirkham DCJ be set aside, and in lieu thereof that the applicant be sentenced to a period of seven years imprisonment to date from 29 March 2000 and to expire on 28 March 2007 with a non-parole period of four years. He would therefore be eligible to apply for parole on 28 March 2004. 19 BARR J: I agree. The orders of the Court are as proposed by Acting Justice Carruthers. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.