Bini v The Queen

[1994] HCATrans 462

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EBo lF

IN THE HIGH COURT OF AUSTRALIA	1
2
ADELAIDE	3 4

CORAM:  BRENNAN, DEANE & DAWSON JJ 5 6

NO. A12/94 7 8 9

10 11 12

PETER BINI	APPLICANT	13
14
V	15 16
THE QUEEN	RESPONDENT	17 18 19 20 21
22 23 24

TRANSCRIPT OF PROCEEDINGS	25
26
27
28
THURSDAY, 25 AUGUST 1994 AT 2.45 P.M.	-29
30 31
32
MR S.W. TILMOUTH QC, WITH HIM MR R.M. ARMOUR, FOR APPLICANT	33

37

MR B.J. JENNINGS QC, WITH HIM MS P.M. BARNETT, FOR RESPONDENT 34

35 36

EBo lF	2	APPLICANT ADDRESS
MR TILMOUTH:	Your Honours will be aware that in this	1

case the Court of Criminal Appeal more than doubled Mr 2

Bini's sentence for armed robbery. The original 3

sentence was three years with a non-parole period of 18	4
months and it was increased to six years and a four year	5

non-parole period. I am absolved from painting the 6

whole factual background because Mr Jennings in his	7
outline has agreed, as your Honours have seen, that the	8
outline which is in your Honours appeal book,	9
application book, from p.42 is accurate.	10

The only issue, therefore, is whether there was an 11

error in the Court of Criminal Appeal below. My 12

submission is this: There were four applications - all	13
armed robbery offences - dealt with in the Court of	14

Criminal Appeal at the same time.	They were all brought	15
by the Crown Prosecutor and argued together.	If your	16

Honours know, the Crown Prosecutor argued the lot, then 17

....	defence counsel all responded and then judgments were	18
0
delivered after lunch.	On the basis that it was proper	19

to grant leave to appeal because of a perception that	20
since District Cou~t judge$ had assumed jurisdiction in	21
these cases that the sentences were too low, the Crown	22
appealed on Osenkowski's case which would be well-known	23
to your Honours.	24

What happened, and I submit this is a fair review of 25

what happened in the Court of Criminal Appeal, is that	26
the court essentially allowed leave for the same reason	27

in each case, that is to say, looking at the sentence 28

generally in each case it was manifestly too.low; did	~9
not, in my submission, identify for the purposes of the	30
applicant's appeal any individual reason why leave was	31
appropriate; and applied on re-sentencing, having	32
decided to give leave, a fairly uniform or standard	33
sentence which was not directed to the individual	34
circumstances of this applicant's case.	35

That is supported by the fact that, putting Meo 36

aside, who was a_multiple offender, in each of the other	37
cases where there was one offence of armed robbery, the	38

EBo lF 3 APPLICANT ADDRESS

court said the tariff should have been eight years -	1
pp.24, 32 and 35 respectively. It uniformly discounted	2
each of them by a quarter on account of the early pleas	3
of guilty - uniformly in all cases - putting Meo aside	4
again because it was different for the multiple	5
offending and Bransden where there was a different order	6
for an unidentified reason - uniformly applied the four	7
year non-parole period.	8

In Mr Bini's case the individual circumstances were 9

quite unusual and the mitigating factors were quite	10
powerful and much more powerful than the other three	11

cases before the court. In this case the question of 12

whether leave to appeal should be granted at the start	13
is now, under the Criminal Appeal Rules, directed to the	14

Full Court.	In Malvaso's case the regime that existed	15
was it was generally given over to a single judge.	Your	16

Honours will remember in Malvaso the Full Court assumed	17
on the basis a.single judge had~given leave, whereas he	18
simply referred it up.	19

That regime changed and under the rules now it must 20

be determined whether leav~ should be granted and, if 21

so, what the appropriate sentence should be.	So it had	22
to deal with both phases of the Crown appeal.	In this	23

case the sentencing judge h~d ample material to impose a	24
lesser than normal tariff sentence in Mr Bini's case	25
and, indeed, suspend it because there was a pre-sentence	26
report in the case which seriously contemplated a	27

non-custodial sentence - pp~4 and 5 of the appeal book. 28

There was a psychiatric report before his Honour which indicated that a custodial sentence could be	29
30

counter-productive. Much more importantly, there was in 31

Mr Bini's case the very important circumstance that the	32
very next day he regretted what he did, went in and	33
confessed all to the police when they had no idea or no	34
suspicion that he was the offender.	35

DAWSON J:	Where is the special leave point?	36
MR TILMOUTH:	The special leave point is whether the -	37

judgment in Malvaso's case of your Honour Justice Deane 38

EBo lF 4 APPLICANT ADDRESS

and Justice McHugh - whether the court must, in	1
considering whether leave is to be granted in the first	2
place, consider the individual circumstances of the case	3
rather than just looking at the gross features, if I can	4
put it that way, determining that the sentence imposed	5
is well below the tariff and then giving leave for that	6
reason alone.	7

In my submission, there is a second special leave 8

point. Even if leave were rightly given, the court in 9

this case never turned its mind to the individual 10

circumstances of the facts in the case. It simply 11

regarded Mr Bini's case like the others as a	12
run-of-the-mill armed robbery - that was expressly said	13
in each judgment - and gave the uniform discount of one	14
quarter on the count of the early plea of guilty but	15
gave no effect to the very powerful mitigating fact here	16
that Mr Bini confessed when he was not even a suspect.	17

BRENNAN J:  .. That is hard to maintain in light of h~s 18

Honour's express reference to the facts, is not it? 19

MR TILMOUTH:  That is true. In the Court of Criminal 20

Appeal at 31 to 32 the col.4'."t did advert at the top of 32	21
to the fact that he confessed the day before - he	22
confessed the day after, I beg your pardon - and was	23

charged and bailed. But of course when it translated to 24

the final sentences the applicant here got precisely the	25
same with adjustments for periods in custody in the	26
other cases as they did, namely, six years head sentence	27

with a non-parole period of. four years. 28

In two of those other cases the offenders there had -29

been caught virtually straight afterwards. Their plea 30

of guilty was entered not out of genuine contrition or	31
remorse but because of the recognition of the inevitable	32

fact that they would have been convicted. In the final 33

case Meo, who committed four offences, went back to rob	34
one of the liquor stores, I think it was, that he robbed	35
before, was shot at and he gave himself up because he	36
realised he served his time, so to speak; his number was	37
up.	38

EBo lF 5 APPLICANT ADDRESS

The situation in this applicant's case was quite different. There is in sentencing principle, in my	1
2
submission, a principle that the extent of the discount	3
to be given on account of an early plea of guilty is	4
very much according to the degree of contrition and	5

remorse demonstrated. The only allowance that.was given 6

in this case was the standard one quarter which was	7
given pursuant to Shannon's case because it recognises	8
the time and expense saved in the administration of	9
justice to running unnecessary trials.	10
No extra allowance at all was given or recognised in the applicant's case for the additional and very	11
12

substantial mitigating features. My answer, therefore, 13

to your Honour Justice Brennan is that although there	14
was apparently a recognition at the top of p.32 of the	15
circumstances, the fact is there must have been an error	16
because the applicant here received no lesser sentence	17

.on re-sentencing-than .the.others did. It was a.standar9 18

six years discounted from eight allowing for the early	19
plea of guilty.	20

CONTINUED 21 22 23 24 25 26 27

28

29

30 31 32 33 34 35 36 37

JRB lG	6	APPLICANT ADDRESS
MR TILMOUTH:	The applicant's case called out for a	1

substantially larger discount, not only because of the	2
matters I talked about earlier, but also because he had	3
confessed a crime when the police did not have a	4
suspect.	5

If the court pleases, in my submission, th~s point 6

was specifically raised by defence counsel at p.47. In	7
the Court of Criminal Appeal - this is para.1.7.2 of the	8
statement in support, which is not disputed - defence	9
counsel submitted that leave should be granted only in	10
extreme and exceptional circumstances and that this	11
case, in the indented part, involved the making of a	12
full confession when the police did not know and had no	13
evidence leading to the identity of the offender. That	14
was an act of contrition, genuine contrition, and that's	15
certainly different from the other cases before your	16

Honours. So counsel in the Court of Criminal Appeal had 17

. :.:expressly" pointed out that the _individual circumstances.	18
of this case stood differently than they did in the	19
other cases before the court and, as I said your	20

Honours, that fact is not Qisputed. In my submission, 21

that being the case, the question should have been asked	22
by the Court of Criminal Appeal in accordance with the	23
judgment of your Honours Deane J and McHugh Jin	24
Malvaso, whether it was appropriate in those individual	25
circumstances that leave should be granted at all and,	26
in my submission, what the Court of Criminal Appeal did	27

was simply identify that there was a disparity from the 28

tariff - p.26 - when it came to Mr Bini's case, p.31,	~9
and said, per Matheson J, line 26:	30
'I refer to what I just said in my judgment in allowing	31
the appeal for the Director of Public Prosecutions in	32
the case of Fermaner and I agree with the Director of	33
Public Prosecutions that this is a matter in which this	34
court should also grant leave.'	35

That is the say, to maintain adequate standards. At 36

that stage, in my submission, the court should have gone	37
on and asked the question, well, is it appropriate to	38

JRB lG 7 APPLICANT ADDRESS

grant leave even given the sentence is apparently low in	1
the individual circumstances of the case? That, in my	2
submission, it didn't do, and that is the first error.	3

DAWSON J:  When it came to reach its conclusion, it 4

indicated that the individual circumstances of the case	5
warranted the higher sentence and the court then would	6
have had regard to the age of the offender and his prior	7
record - and he is a man of 36 years of age - somewhat	8
older than some of the other offenders - he had a	9
record, a number of prior offences including assaults,	10
and he had twice, previously, been given suspended	11
sentences and had been given bonds on other occasions.	12

MR TILMOUTH:	Yes, that is true.	13
DAWSON J:	Inferentially, the court had regard to	14

all of that. 15

MR TILMOUTH:  In my submission, the error is disclosed 16

in the outcome and the outcome was that there was no	17
differentiation ~or the.mitigating-factors I have	18
identified.	19

DAWSON J:  There must be a limit to the mitigation 20

that you can give for assisting police or pleading	21
guilty.	22

MR TILMOUTH:  That is true, but it must be reflected 23

over and above the standard- discount which is given,	24
simply for administrative convenience.	25

DAWSON J:	In all the circumstances.	26
MR TILMOUTH:	That is true.	27

DAWSON J:  If it were a first offence, then it 28

would loom much larger, but it is not. ~9

MR TILMOUTH:  I agree with all that, but at the end of 30

the day, in my submission, the fact of this question of	31
giving himself up was such an outstanding mitigating	32
feature that it must have necessarily reflected in a	33
greater or a lesser sentence, rather than pertained	34
here.	35
In my submission, the error might be indicated as well at p.31 when the court said that it was a typical -	36
37
armed robbery on a service station, although I concede	38

JRB lG	8	APPLICANT ADDRESS
RESPONDENT ADDRESS

it adverted to psychiatric treatment and the like. But 1

in my submission, the demonstration of the error is in	2
the outcome - there is no adequate differentiation	3
between this applicant's case and the others at the	4
leave stage and, indeed, at the re-sentencing stage.	5
Those questions, in my submission, are the special leave	6
points.	7

I should add your Honours, I am aware that partly 8

what I put today in relation to the application of	9
Malvaso's case has been argued in the case of Everett v	10
Phillips, the Tasmanian case, in which your Honours, I	11
think, allowed the appeal but have reserved judgment.	12

My point goes much further than that, of course.	The	13
statute then was different and there were other	14
different factors, including the attitude of the	15

prosecutor in those cases. But, nevertheless, in my	16
submission, it is a question of general importance	17
whether_the_individualrcircumstances.must be ·considereq	18
at the leave stage and, in my submission, with respect,	19
they weren't, and in any event, when the court comes to	20
re-sentence, whether it has considered the additional	21

mitigating features. If the court pleases. 22

BRENNAN J:	Yes, Mr Jennings.	23
MR JENNINGS:	May it please the court, in the	24

respondent's submission, the approach of the Court of 25

Criminal Appeal was the correct one. It looked at the 26

question of whether the sentence was manifestly 27

inadequate and so decided because it fell far short of	28
what the Court of Criminal Appeal had said was an	·29

appropriate standard for armed robbery offences. In the 30

respondent's submission, it can't be said that the court	31
didn't take into account the individual circumstances of	32

Bini and of his offence. It recited them in its 33

judgment. It then looked at the question, as it had in	34
the case of Fermaner, at whether it was an appropriate	35

case for intervention on the Crown appeal. It looked at 36

that as a separate issue and it so decided that it was.	37
The basis for intervention being, in the respondent's	38

JRB lG 9 RESPONDENT ADDRESS

submission, an appropriate one, namely, to maintain 1

adequate standards of penalty for this offence. It then 2

looked at the question of suspension and decided that it	3
was manifestly in error for the judge at first instance	4
to have suspended the sentence for the reasons which it	5
outlined at p.32 of the appeal book, namely, the	6
seriousness of the offence, its prevalence, his age and,	7
of course, by that it meant he wasn't youthful, and his	8
prior record, and it then decided that it was one of	9
those rare cases in which the court should set aside the	10
suspension.	11

It is to be noted that in Fermaner's case, the court 12

did not set aside the suspension on the basis that the	13
Crown, at sentence in that case, had not said that a	14
sentence of the suspended sentence would be	15
inappropriate. So, obviously, the court had that in	16

mind - the Crown's stance - in looking at Bini. So the 17

respondent says that.given that approach of the· Court ~f	18
Criminal Appeal, it was appropriate to grant leave and	19
it was appropriate to allow the appeal.	20

The respondent submita that the individual 21

circumstances of Bini were adverted to in the judgment 22

of the court. It is true that in Bini's case, there was 23

the circumstance of mitigation which did not apply to	24
the others, namely, his having given himself up, but, of	25
course, there were circumstances in the other cases	26

which weren't present in B~ni's case. In Fermaner's 27

case, he had spent 5 months. in custody; Bini had spent 28

no time in custody. In Fermaner's case, he was - and ·29

this appears at p.27 and p.28 - suffering from a low	30
grade paranoid psychosis, so he had some mental illness	31
which wasn't apparent in Bini's case, albeit that Bini	32

had problems and had seen a psychiatrist.	Ramsden was	33
24 - this appears at p.34 of the appeal book.	Ramsden,	34

the other case which Mr Tilmouth attempts to draw a	35
comparison with, had spent 3 and a half months in	36
custody, he was ?4 and it was said that he had a history	37
of juvenile offending mainly for larceny, but had not	38

JRB lG	10	RESPONDENT ADDRESS
APPLICANT REPLY

offended for 6 years.	So it would appear that Ramsden	1
had no previous record as an adult.	He had spent time	2

in custody, Fermaner had spent 5 months in custody and	3
was a low grade paranoid psychosis. So, obviously, not	4
all 3 cases were the same.	5
In Bini's case, there was a circumstance of mitigation which, in the respondent's submission, the	6
7
court adverted to and it can't be said that it didn't	8

have regard to. But there were circumstances in the 9

other cases, including the time that they spent in	10
custody which, of course, weren't present in Bini's	11
case.	12

So at the end of the day, the Court of Criminal 13

Appeal, having identified manifest inadequacy and	14
manifest error in the exercise of discretion to suspend,	15
had to impose a sentence which it regarded as	16
appropriate in all the circumstances. It did so. It	17

·,happened _to .. be. the .. same _sentence .that was imposed on 18

. .

Fermaner - same in substance as was imposed on Fermaner	19
and Ramsden, albeit that Ramsden was given a 3 year	20
non-parole period. With r~spect, so be it.	21

The respondent submits that despite the circumstance 22

of mitigation which was present in Bini's case and not	23
in the others, there were other considerations in each	24
case which gave rise to a balancing exercise and, at the	25
end of the day, the court imposed sentences in all cases	26

which were, in substance, ~he same. But we say that 27

that doesn't disclose error. in Bini's case. 28

So the respondent submits that there is,. in this ·29

case, no error disclosed and no basis for the grant of 30

special leave. If the court pleases. 31

BRENNAN J:  Yes, Mr Tilmouth. 32

MR TILMOUTH:  2 matters your Honours. The court did 33

take into account the time spent in custody in all	34
cases, but it adjusted them so that the net effect was	35
the head sentence of 6 years discounted from 8 years.	36
The actual senteDces weren't 6 and 4, they were adjusted	37
to take into account time spent in custody, so that the	38

JRB lG 11 APPLICANT REPLY

final result was the same. The fact remains, in my 1

submission, that in the end result, as in the	2
applicant's case, the court said in relation to them:	3

'The head sentence should be 6 years. We intimate that 4

if it had not been for the earlier plea of guilty, it	5
should have been 8 years and we fix a non-parole per-iod	6
of 4 years.'	7
The same standard formula, in my submission, despite the	8
fact that the applicant's case stood quite differently	9
than the others.	10

BRENNAN J:  Did I understand you to draw some 11

comparison between the applicant's case and Fermaner's	12
case? I thought your outline of argument did, but I	13
didn't understand you to propound it today.	14

MR TILMOUTH:  Fermaner's case just happened to be the 15

one that came first and your Honours can see in	16
Fermaner's case that the same thing almost identically	17

happened. It was the main case in which the .reason to. 18

grant leave was identified, p.26, and exactly the same	19
thing happened at p.28 as happened in Mr Bini's case -	20
lines 40 to 46:	21
'If it were not for the early plea of guilty, and the	22
fact that the respondent had spent nearly 5 months in	23
custody at the time of sentencing, I would have fixed a	24
head sentence in the region of 8 years.'	25
Exactly what they said with an appropriate adjustment	26

for the facts in Bini - p.3~ lines 5 to 15.	Your	27
Honours can see that then they went on to the question	28

of suspension and exactly the same formula, in my	-29
submission, as they used in Ramsden's case at the top of	30
p.35, line 6:	31
'I make it quite clear that but for the plea of guilty	32
the head sentence would have been in the vicinity of 8	33

years.	I would substitute 3 years for the non-parole	34
period.'	35

No reason is allocated, incidentally, why that 3 years	36
was sentenced instead of the 4, as Mr Jennings has	37
accepted.	38

JRB lG 12 APPLICANT REPLY

So in the end result, in my submission, there has been a standard formula applied to quote different	1
2
facts, certainly in the applicant's case. Whether that	3
error translated at the leave stage or at the	4
re-sentenceing stage or both, in my submission it is	5
inescapable and the sentencing process miscarried for	6

either of those stages, if not both of them.	If the	7
court pleases.	8

BRENNAN J:  The applicant seeks special leave to 9

appeal against an order of the Court of Criminal Appeal	10
increasing his sentence on his conviction for armed	11
robbery.	12

His case was one of four cases in which the Court of 13

Criminal Appeal, having heard them together, allowed the	14
Crown appeal against sentence.	15
By their decisions, the Court of Criminal Appeal hoped to "remind all sentencing judges of the great	16
17
importance of maintaining adequate standards of	18

punishment in sentencing for armed robbery". That being 19

the object of the Court of Criminal Appeal, this Court	20
should not grant special leave to review the range of	21
sentences which the Court of Criminal Appeal has set.	22

However, the Court of Criminal Appeal is bound to 23

apply general principles of sentencing to any case in	24
which the Crown seeks to have a range of sentences	25
established or confirmed so that the actual sentence in	26
any case properly reflects its unique circumstances.	27

Counsel for the applicant challenges the sentence 28

imposed on the ground that the principles of	29
comparability and mitigation for contrition and	30
assistance were not observed.	31
A bare reading of the reasons for decision does not support that submission, though some support can be	32
33
found in the order made.	34

However, that gives rise not so much to an issue of 35

principle as to an application of principle to the	36
facts of the case.	37

By majority, the court is of the opinion that no 38

JRB lG 13

question of public importance emerges with sufficient	1
clarity to justify a grant of special leave to appeal.	2

Accordingly, special leave is refused.	3
4 5 6 7 8 9

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