Braslin and Cowen v Tasmania
[2010] TASCCA 1
•28 January 2010
[2010] TASCCA 1
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Braslin and Cowen v Tasmania [2010] TASCCA 1
PARTIES: BRASLIN, Corey Wayne
v
TASMANIA (STATE OF)
COWEN, Leigh Kevin
v
TASMANIA (STATE OF)
FILE NO/S: CCA 163/2009
CCA 172/2009
DELIVERED ON: 28 January 2010
DELIVERED AT: Hobart
HEARING DATE: 18 October 2009
JUDGMENT OF: Evans, Tennent and Porter JJ
CATCHWORDS:
Criminal Law – Sentence – Relevant factors – Nature and circumstances of offender – Age of offender – Young offender – Importance of youthfulness and rehabilitation where youthful offender behaves as an adult in committing a serious crime.
R v Tran (2002) 4 VR 457; KT v R (2008) 182 A Crim R 571, applied.
Aust Dig Criminal Law [3260]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Aggravated armed robbery involving the use of a stolen vehicle subsequently destroyed by fire – Whether particular sentences of imprisonment manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
First Appellant: P A Warmbrunn
Second Appellant: K Baumeler
Respondent: J Hartnett
Solicitors:
Second Appellant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2010] TASCCA 1
Number of paragraphs: 38
Serial No 1/2010
File Nos CCA 163/2009CCA 172/2009
COREY WAYNE BRASLIN v STATE OF TASMANIA
LEIGH KEVIN COWEN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
TENNENT J
PORTER J
28 January 2010
Orders of the Court
Appeals dismissed.
Serial No 1/2010
File Nos CCA 163/2009CCA 172/2009
COREY WAYNE BRASLIN v STATE OF TASMANIA
LEIGH KEVIN COWEN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
28 January 2010
I have read the draft reasons of Porter J. I agree with those reasons and would also dismiss both appeals.
Serial No 1/2010
File Nos CCA 163/2009CCA 172/2009
COREY WAYNE BRASLIN v STATE OF TASMANIA
LEIGH KEVIN COWEN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
28 January 2010
I have read the draft reasons of Porter J. I agree with those reasons and the outcome he proposes. I would also dismiss both appeals.
Serial No 1/2010
File Nos CCA 163/2009CCA 172/2009
COREY WAYNE BRASLIN v STATE OF TASMANIA
LEIGH KEVIN COWEN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
28 January 2010
The appeals
Following a joint trial, each appellant was found guilty by a jury of stealing, aggravated armed robbery, and unlawfully setting fire to property. In company with another man, they stole a car, used it in a robbery of a hotel gaming area, and then burnt the car before fleeing in Mr Cowen's car. On 19 February 2009 Mr Braslin was sentenced to four years' imprisonment to take effect from 1 July 2008, and it was ordered that he not be eligible for parole until he had served one half of that sentence. On the same day, Mr Cowen was sentenced to five years and five months' imprisonment to take effect from 26 July 2008 and it was ordered that he not be eligible for parole until he had served two thirds of the sentence. An order was made that both men "pay jointly and severally" a total compensation amount of $8,491.55.
Mr Braslin and Mr Cowen have both appealed against the sentences imposed. In each case the sole ground of appeal is that the sentence is manifestly excessive in all the circumstances. However, as argued, Mr Cowen's case included a submission that irrespective of the view taken of his sentence in isolation, it should be reduced on the grounds of disparity.
The facts of the crimes
The following is taken from the comments on passing sentence of the trial judge:
"These charges all relate to an armed robbery carried out at the Queen's Head Hotel in North Hobart a little after 11pm on Saturday 26 April last year. Three people travelled to the hotel in a car that had been stolen in Dynnyrne. The hotel has a drive-in bottle shop, which was closed. The offenders drove into the bottle shop driveway. The driver waited at the car. The passengers both entered the hotel through a door from the driveway into a gaming area, where there were poker machines and a bar. One of them was carrying a gun – either a rifle or a single-barrelled shotgun. They were wearing gloves, balaclavas, and hooded jackets, with the hoods up so that not even their hair could be seen.
There was one bar attendant on duty in that area – a young woman. The man with the gun demanded that she give him money, and motioned with the gun to direct her where to get the money from. The intruders robbed her of $4,491.55 from three tills, as well as her handbag and its contents, which included a mobile phone and a wallet. A female customer in the bar was robbed of her handbag, whose contents also included a mobile phone and a wallet. The robbers carried away the stolen money and other property in bags that they had brought with them for the purpose. Security cameras recorded the robbery. It took less than a minute.
The three offenders sped away in the stolen car. They travelled to a dark part of Barrack Street, behind St Mary's Cathedral. Cowen's vehicle was parked there. He had some petrol in a jerry can. He had bought that petrol earlier that night. Somebody set fire to the stolen vehicle in Barrack Street, no doubt using the petrol from the jerry can. The stolen vehicle was burnt out. The three men drove off to Moonah in Cowen's vehicle.
It is clear from the verdicts of the jury that they were satisfied beyond reasonable doubt that Cowen and Braslin were two of the three men that went to the hotel and that, whatever roles each of them played before, during and after the robbery, they were both criminally responsible for the stealing of the car from Dynnyrne, the robbery, and the crime of unlawfully setting fire to the car. I am not able to make a finding as to which individual stole the car. I am satisfied beyond reasonable doubt that it was Cowen who drove the vehicle to and from the hotel. I base that finding on evidence given by Constable Cox that he saw Cowen driving the stolen car when it turned from Patrick Street into Harrington Street, and watched it travel along Harrington Street and then into Newdegate Street towards the hotel in the minutes immediately preceding the robbery. It follows that Braslin must have been one of the two robbers who entered the hotel. The two women who were robbed each gave estimates of the height of the robbers that were inconsistent with other evidence as to Mr Braslin's height, but I think their estimates must have been inaccurate. From evidence given by Constable Long as to observations he made in Barrack Street a few minutes after the robbery, it seems very likely that it was Mr Braslin who set fire to the stolen car, but I do not think I need to make a finding as to who started that fire."
There is no challenge to the trial judge's findings that it was Mr Braslin who was one of the two robbers who entered the hotel, and that it was Mr Cowen who was involved in driving the vehicle. As can be gathered from the trial judge's comments, the appellants and the third person were under police surveillance before and after the robbery. For some reason, they evaded scrutiny for the crucial moments. By way of further background, I note several matters. Before its use in the robbery, the car which was stolen in Dynnyrne was apparently placed in a quiet street in South Hobart for a time. It was retrieved from that location and driven to Barrack Street by Mr Braslin, following Mr Cowen's vehicle. Mr Cowen's vehicle was then secreted in a dark area, behind St Mary's Cathedral. Earlier, it appears that Mr Cowen had bought a container of petrol from a service station.
As noted by the trial judge, when the offenders returned to Mr Cowen's vehicle, the stolen vehicle was set alight. As also noted by his Honour, the evidence strongly suggests that this was done by Mr Braslin, no doubt using the petrol obtained earlier by Mr Cowen. It appears that the stolen vehicle was rolling forwards and down the slope of Barrack Street when it was alight. It had to be stopped with the use of chocks, by fire officers who were quickly on the scene.
It is useful to set out further observations of the trial judge, in respect of which no issue is taken. His Honour said:
"It is clear that this was a very well planned robbery, and that the use of a stolen car and its later destruction were parts of that plan. No doubt it was used and destroyed in order that there would be no scientific or other evidence linking any of the offenders with the robbery. Other indications of skilful and thorough planning include the use of Barrack Street, a quiet street not far from the hotel, as a place to change vehicles and later destroy the stolen car; the use of gloves, balaclavas and hooded jackets; the wearing of baggy outer garments, which I infer were worn so that the robbers' ordinary clothes would not be seen by anyone; the swiftness of the robbery, and of the offenders' departure from the hotel; the fact that the gun and the stolen money, or at least the bulk of it, were never recovered; and the fact that the three men separated shortly after the robbery, with one of them apparently never being identified by the police. The robbery was so well planned that these two men would not have been caught if they had not been under surveillance that night. They were being watched by seven undercover police officers, each in an unmarked car.
Both of the young women who were robbed suffered a range of psychological symptoms. Both are still very nervous in public, particularly in situations with similarities to the situation on the night in question. There is no indication that either of them is likely to suffer any major psychological disorder, but there must still be a small chance of that happening. Often the full psychological impact of a traumatic crime like this emerges years after the event. No doubt the robbery was very upsetting for the other people who were in the bar at the time. The proprietor of the hotel not only lost the money that was stolen, but also incurred losses as the result of paying for counselling for all the hotel employees, and closing the hotel for a couple of days following the robbery. Others who suffered inconvenience and loss include the man whose car was stolen and destroyed, and the fire officers who had to stop it rolling down Barrack Street and put out the fire."
Mr Braslin's personal circumstances
Mr Braslin's date of birth is 7 July 1988 making him 19 years and 9 months old at the time of the offences. As the trial judge noted, he "has some prior convictions, but only for driving offences". The record of these offences commences in August 2007 and ends on 10 April 2008. There are some 26 offences in that period, mostly for speeding and failing to wear a seatbelt. Sufficient demerit points were accumulated for Mr Braslin to have been disqualified on three occasions. The trial judge did not regard these matters as significant.
On behalf of Mr Braslin, the following matters were put to the trial judge:
· he was raised by both parents who remain supportive of him, and he had recently acted as a carer for his mother in a period when she suffered from a serious heart condition;
· despite only basic literary skills, he has had continuous employment since leaving high school up until recently when he became unemployed;
· he has had no difficulties with drugs and drinks relatively little alcohol;
· he was a young man with inherent prospects of rehabilitation, those prospects being more significant and tangible in light of his lack of relevant history and the presence of his family support network;
· he had spent seven months and 21 days in custody on these matters, having chosen not to apply for bail until the end of 2008.
Of course, the trial judge did not have the benefit of any explanation for Mr Braslin's apparently sudden excursion into serious offending, and no further insight into his conduct, other than what was apparent from the evidence in the trial. For the same reason, there was no evidence of remorse, and the only suggestion of co-operation was that Mr Braslin formally consented to an amount of money seized by police on the night of the offences, being applied to the partial satisfaction of any compensation order. That was a matter noted by the trial judge.
Mr Cowen's personal circumstances
Mr Cowen's date of birth is 28 October 1981, making him 26½ years old at the time of the offences. He has a significant list of prior convictions, commencing in January 1999. The matters include 12 convictions for burglary/aggravated burglary, 13 for stealing, one for aggravated assault and two for assault. There are numerous other offences of dishonesty of varying types, and a set of firearms licence offences in May 2004. Included in that history are two appearances in the Supreme Court. The first was in August 2001 and related to crimes of aggravated burglary, assault and destroy property. He was sentenced to 18 months' imprisonment, with nine months of that sentence suspended on conditions. He appeared again on 23 September 2004 in relation to stealing and aggravated assault, with the sentence being four months' imprisonment to commence at the expiration of sentences then being served, with three months' imprisonment suspended on conditions.
It should be noted that on five occasions Mr Cowen has been given the benefit of the suspension, wholly or in part, of varying terms of imprisonment. On 3 August 2006, for offences of dishonesty, he was sentenced to imprisonment for two years and three months, the execution of 10 months of which was suspended on condition he be of good behaviour for three years. These crimes were thus committed whilst he was the subject of that suspended sentence. He was released on parole on 3 July 2007 for a period of five months and 30 days. That release date was nearly 10 months before these crimes, and in the meantime whilst on parole, Mr Cowen committed two further offences of dishonesty for which he was dealt with in September 2008.
The trial judge had two pre-sentence reports, one dated 1 April 2004; the second, 12 May 2005. A predominant issue in the report is Mr Cowen's substance abuse, involving both alcohol and illicit drugs. In the more recent report, it is noted that Mr Cowen had undergone two separate periods of supervised probation and one community service order for 80 hours. The report contains the following comments:
"The real test for the defendant is to 'unlearn' years of anti-social behaviour and develop more appropriate responses to the various situations that life presents. The defendant is still torn between two worlds and has a long way to go before he can reach his goal of not re-offending. The defendant's reasoning ability is affected and his behaviour unpredictable/aggressive when he is either under the influence or withdrawing from drug use. However the defendant's efforts to cease using drugs, is a positive step towards him gaining the stability required to develop and implement problem solving and decision making skills … the defendant is assessed as requiring a high level of intervention from Community Corrections …".
Before the trial judge, it was put on Mr Cowen's behalf that:
· he was employed at the time of these offences, but was off work as a result of a work-related accident and was in receipt of workers compensation;
· he has a very good work record, having completed a carpentry apprenticeship, but worked continually in service station work, which included managing one such station for about four years;
· when released from custody he intended to leave the State to go to Western Australia to look for work in the mining industry;
· the period of serious offending in the early part of this decade followed on from the break-up of a long term relationship, and the beginning of associations with people who had an adverse influence on him. This included drug use, and his offending escalated from that point;
· he successfully addressed his drug addiction, not having used any illicit substances since 2006.
The trial judge's comments
The trial judge dealt with Mr Cowen first. His Honour's comments as to both appellants are as follows:
"Cowen is 27 years old. He has a bad record of prior convictions, including convictions for crimes and offences involving dishonesty, violence, and unlicensed firearms. He has been sentenced to imprisonment on numerous occasions. In August 2006, 10 months of a sentence of imprisonment was suspended on condition that he be of good behaviour for three years. By committing these crimes, he breached that condition of that partly suspended sentence. However, he has a reasonable employment record, and wants to make a fresh start in another State once he is released from prison.
Braslin is 20 years old. He was only 19 years old on the night in question. He has some prior convictions, but only for driving offences. I do not regard them as significant. Because he is so young, and because he has no significant prior convictions, he must receive a lighter sentence than Cowen. Also, because of the same factors, I will impose the shortest possible non-parole period. I think Cowen should also have the opportunity to be released under the supervision of a parole officer if the Parole Board thinks that would be appropriate, but not until he has served a very substantial part of his sentence.
Both of these prisoners were arrested on the morning of 27 April. Cowen has been in custody ever since. In September last year a magistrate sentenced him to imprisonment for some crimes that he committed in 2007, and backdated his sentence to 26 April 2008. As a result, the period from his arrest until 25 July 2008 must be treated as a period when he was serving a sentence of imprisonment for those other matters. I will therefore backdate his sentence to commence on 26 July 2008. Because he spent the three months before that date in custody, I will give him a slightly shorter sentence than I otherwise would have. That is because of the 'totality principle', which was explained by the High Court in Mill v R (1988) 166 CLR 59.
Braslin was granted bail, but did not apply for bail until more than seven months after his arrest. He was bailed on 12 December, and went back into custody on Monday of this week, the day of the jury's verdicts. I will therefore backdate his sentence to commence on 1 July last, 230 days before his return to custody.
This robbery was a very serious crime. It involved the brandishing of a gun, the stealing of thousands of dollars, and the exposure of several people to risks of extreme psychological harm. At least one of them feared for her life. I need to impose heavy sentences that should deter these two men and others from committing this sort of crime. Because it was a crime indicating a high degree of professionalism, I should impose a sentence that should deter even professional criminals from committing such crimes."
The submissions on the appeals
On behalf of Mr Braslin it was argued that the trial judge "failed to give enough weight" to the relative youth of the appellant, and to his relative lack of prior criminal history. It was submitted that whilst there is no tariff or benchmark for the crime of aggravated armed robbery, a sentence "reflective" of that imposed by this Court in Attorney-General (Tas) v Gee [2003] TASSC 40, would have been appropriate. In that case, the respondent, alone and armed with a sawn-off shotgun, robbed a takeaway food outlet of some $1,200. He was nearly 21 years old at the time. He pleaded guilty at the earliest opportunity and told the presiding justice that he was sorry for what he had done. There were indications of successful self-motivated rehabilitation. He was sentenced to 12 months' imprisonment with a non-parole period of six months, but on the appeal on the ground of manifest inadequacy, the court quashed the sentence and substituted one of two years' imprisonment, the execution of the last six months of which was suspended on conditions, and it was ordered that the respondent not be eligible for parole until he had served nine months.
In Mr Cowen's case, it was argued that the trial judge had placed excessive weight on Mr Cowen's prior convictions in comparison to Mr Braslin's, placed excessive weight on the age difference between the two, and placed insufficient weight on Mr Cowen's "lesser culpability". This, it is said, gave rise to unjustified disparity. Counsel seemed to accept that, to a large extent, the success of the appeal was dependent on the outcome of Mr Braslin's appeal. It was submitted that if Mr Braslin's sentence were reduced, the requirement of parity would compel a reduction in Mr Cowen's sentence. Otherwise, a greater sense of grievance would arise.
Discussion
Aggravated armed robbery/armed robbery — an issue of prevalence
Prevalence was an issue raised in this case. In her submissions to the trial judge, Crown counsel referred to K Warner, Sentencing in Tasmania, 2nd ed at 331, as to "taking into account prevalence in relation to crimes of this nature and particularly aggravated armed robbery". The trial judge was told that Tasmania Police figures showed that there were "approximately 192 aggravated armed robberies and aggravated robberies" since 1 October 2006 to the date of these offences; 26 April 2008. This assertion was not challenged before the trial judge, but there is no mention of it in his Honour's comments. The issue was not raised in any way in this Court. Strictly speaking, there is no need to consider it. However, it remains a factual matter specifically put to the trial judge. Deterrence is a factor which was given prominence in his Honour's reasons, and increased prevalence is a matter which his Honour may well have taken into account. In my view the exercise in which his Honour was engaged needs to be viewed as a whole, and it is desirable and appropriate for this Court to examine the issue in considering whether the sentencing discretion miscarried. But I think caution needs to be exercised in using police figures relating to the "commission" of crimes of a particular type, given that they may involve subjective judgment.
It is not clear whether Crown counsel's reference to "aggravated robberies" was a mistaken reference to armed robbery, or whether it was intended literally. The paragraph dealing with the issue of prevalence on page 331 of Professor Warner's text, refers generally to armed robberies, whilst the tables showing the sentencing ranges on page 332, relate to aggravated armed robbery and armed robbery. Those tables show that for the period 1999 to 2000, there were 79 single count custodial sentences for the former, with 101 custodial sentences for the latter. Less than 5 per cent of sentences for armed robbery were non-custodial. That makes a total of approximately 190 cases, and over the relevant period, (1990-2000), that is an average of 1.44 cases per month, or about 17 per year.
My analysis of the Court's sentencing database shows a total of 199 sentences for the two crimes, from 1 January 2001 to 26 April 2008; an average of 2.26 cases per month, or about 27 per year. (Since 26 April 2008, there have been a further total of 53 sentences (including these two), which gives a separate average of 2.65 per month; a yearly figure of nearly 32.) To have greater accuracy as a proper measure, other considerations need to be taken into account, such as population growth. However, these statistics, whilst showing nothing dramatic, do bear out an increase of some reasonable proportion in the number of cases of aggravated armed robbery and armed robbery coming before the court.
The same issue of the increased prevalence of armed robbery was discussed fifteen years ago, and things seem to have moved on even a little further since then. In Everett and Phillips v R (1994) 72 A Crim 422 Zeeman J said at 441:
"Armed robbery involving the use of a firearm is a crime of increasing prevalence which informed public opinion expects to be dealt with by sentences which mark strong denunciation of that kind of activity. The nature and prevalence of robberies involving violence or the threat of violence are such that courts must make it perfectly clear to those whom might be minded to commit such crimes, be they youthful or not, that normally they will be visited with immediate and substantial terms of imprisonment."
As noted, there was no challenge to the facts asserted as to prevalence. The assertion of increased prevalence is generally borne out by an analysis of the Court records. It follows that the trial judge was entitled to give the factors of general deterrence and denunciation greater weight than they might have been afforded in the past. (Generally, see the discussion in R vDownie and Dandy [1998] 2 VR 517 per Calloway JA at 520-522.) To digress for a moment, I would observe that such an approach is neither unusual nor untoward. Self-evidently, it is the way in which the system operates. For instance, in this very context, it was held in Devine v R (1992) 2 Tas R 458 that it was not necessary before imposing heavier penalties because of altered circumstances such as prevalence, to give warning or to raise the penalty gradually; see 465 - 467. Taking into account changing relevant community conditions does not offend the principle requiring consistency in sentencing. Like cases must of course, be treated in a like manner; Lowe v R (1984) 154 CLR 606 per Mason J at 610 - 611. However, in Wong v R (2001) 207 CLR at [65], Gaudron, Gummow and Hayne JJ said that "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." [Original emphasis]
What might appear to be a pattern of inconsistency from one given period to the next, may be properly explained by the recent influence of a factor such as increased prevalence. Different levels of prevalence have been expressly put as an example of why sentences may differ from one locality to the next. "The sentencing principles remain uniform, but their application may require weight to be given to local factors." Leeth v Commonwealth (1992) 174 CLR 455 per Brennan J at 476. It is fundamentally implicit in this, that there may be variations in such factors over a period of time. As far as it is reasonably possible to assess and respond, the process of sentencing must be contemporary and attuned to environment.
These observations lead to a related point. That point relates to the use of comparative sentences in the appeal process. In determining whether a sentence is manifestly excessive or manifestly inadequate, this Court is customarily referred to a range of penalties established by comparable cases. A discernible "tariff" (to use the word in that sense), can only be gleaned from sentences imposed over a period of time. In R v Dowie [1989] Tas R 167 at 186, Wright J warned that this tariff approach may be of little value, "particularly where cases supposedly illustrative of the tariff are few, or the relevant facts are not directly comparable". In my view, consideration of whether a case is comparable or not, must include broader external and contemporary factors relevant to the sentencing discretion, such as prevalence. A sentence imposed at a time when prevalence of the particular crime was not high, cannot be said to be comparable to a particular case in which the crime has been committed at a time of significantly increased prevalence. To that extent, what Wright J continued on to say in Dowie, is applicable in this context; that is, a court may frequently be aided by the provision of statistical data but that "it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in light of all the known facts and circumstances."
What then, in terms of a broad range, can be made of the statistics? In Sentencing in Tasmania 2nd ed (above) at 332, for the period 1990 – 2000, the tables of single count sentences show the maximum custodial sentence for aggravated armed robbery as five years, whilst that for armed robbery is eight years. The author notes at 333 [12.107], that for young offenders (18 – 21), no single sentence exceeded three years. In relation to aggravated armed robbery, since the time of the tables to the date of these crimes, there have been a few sentences of more than five years. At the highest end of the scale, there are two sentences of 10 years' imprisonment imposed on co-offenders, but which also related to a number of other offences of dishonesty. There is a third such term, but in that case someone was shot. There is one sentence of nine years' imprisonment – (a regular repeat offender) – two of eight years imposed on recidivist co-offenders, and one of 7½ years. For aggravated armed robbery and armed robbery there are 16 sentences of between three and six years, mostly in the lower end of that range, and almost invariably involving commercial premises, relatively large sums of money, and offenders with significant criminal histories. This is somewhat inconclusive but might suggest that a more punitive approach to this type of crime has been taken in this decade, compared to the last. I should note that at the other end of the scale, there have been four community service orders, of between 56 and 80 hours.
The circumstances of this case
The course of criminal conduct in which the appellants engaged, involved considerable premeditation and planning. A car was stolen with a view to its use in the robbery of the hotel. The destruction of that car by fire was pre-planned. The female patron who was robbed was in the immediate company of three other people. Further weighty aggravating factors are as follows:
· two persons entered the hotel, one brandishing a firearm;
· the use of that firearm, loaded or unloaded, contributes to the crime being one of considerable gravity: Everett and Phillips v R per Crawford J (as he then was) at 435 – 436. (It is not a mitigating factor if the weapon is unloaded or not otherwise capable of being discharged: McFarlane v R (1993) 2 Tas R 210 per Zeeman J at 222);
· the offenders were disguised by the use of balaclavas; O'Brien v R [2000] TASSC 117;
· the crime was committed on commercial premises on a night which might be expected to be one of the busiest of the week; Everett and Phillips (above) at 435 – 436;
· the two immediate victims of the robbery continued to suffer a range of psychological symptoms at the time of passing sentence, and as the trial judge noted, no doubt the whole incident was very upsetting for other people who were in the bar at the time.
Mr Braslin's age
Mr Braslin was nearly 20 years old at the time of these offences. As such, in strict terms, he qualifies as a "young offender" so that the principles applicable to such offenders applied to him; see for example Maney v White [2007] TASSC 7 and Spaulding v Lowe 4/1985. However, whilst youthfulness of itself is generally taken to be a mitigating factor, and the rehabilitation of the offender assumes predominant importance, that is not exclusively so, and does not remain true for all cases irrespective of their nature. In R v Tran (2002) 4 VR 457 at [14] Callaway JA said:
"The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important."
"Deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence…"; R v Phan (1991) 55 A Crim R 128 at 135. The moderation of the emphasis given to rehabilitation rather than general deterrence and retribution has been acknowledged where the young person "has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence of considerable gravity"; R v AEM [2002] NSWCCA 58 at [97] – [98]; KT v R (2008) 182 A Crim R 571 per McClellan CJ at CL at [25]. In the latter case, McClellan CJ at CL continued:
"25 … In determining whether a young offender has engaged in 'adult behaviour', the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society."
26 The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity." [References omitted]
Whilst still qualifying as a youthful offender, Mr Braslin was approaching the end of the time for which such a claim can be made. Regard must be had to the nature and circumstances of these offences, particularly the premeditation and the detailed planning involved. The commission of such crimes, which include a crime of strong violence and considerable gravity, indicates the behaviour of an adult. It is true that Mr Braslin has no convictions for any matters of real significance, but it must be said that the frequency and extent of his offending in a short period of time, at the least shows a disregard for the law. For those reasons, factors of deterrence and retribution/denunciation were not overshadowed by issues of youth and rehabilitation, but were entitled to be given considerable weight.
Resolution of the appeals
For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence. "The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error"; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police (2008) 102 SASR 151 at [88], "An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust."
In Dinsdale v R (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:
"The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence . Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts." [References omitted]
Later, in Wong v R (above) at [58] Gaudron, Gummow and Hayne JJ said:
"Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons."
In Dinsdale (above) at [6], Gleeson CJ and Hayne J said that: "inadequacy or excess is, or is not, plainly apparent". In my view, whilst it may fairly be said that in all of the circumstances, the sentences are heavy penalties, they do not immediately compel the conclusion that they are unreasonable or plainly unjust so as to show a miscarriage of the sentencing discretion. Neither does closer scrutiny lead me to that conclusion. The aggravated armed robbery was a grave instance of what is regarded as a very serious crime: Osborn v R 58/1970; R v McFarlane (1993) 2 Tas R 201 at 210. Additionally, the stolen vehicle used in the commission of that crime was destroyed by fire. It seems to me with respect, that what the trial judge said was perfectly correct. His Honour was faced with criminal activity "indicating a high degree of professionalism", and he needed to "impose a sentence that should deter even professional criminals from committing such crimes". In Mr Braslin's case, I do not lose sight of his age and personal circumstances, but it is impossible to minimise the nature and extent of his criminal conduct, exposed as it is with no other mitigating features present. The trial judge gave due recognition to Mr Braslin's rehabilitation by the availability of the maximum parole period.
In Mr Cowen's case, I regard it as of particular significance that he was the subject of a suspended sentence of imprisonment at the time of the commission of these crimes, and had only recently ended a period on parole during which time he committed offences of dishonesty for which he was sent to prison Although he did not actually enter the hotel or set fire to the car, that is of marginal overall significance given his full participation otherwise. I see nothing in the outcome of either case, as to the head sentence or the non-parole period, which bespeaks error.
That leaves the disparity argument put on Mr Cowen's behalf. The extent of the operation of the parity principle was illustrated by Mason J in Lowe v R (1984) 154 CLR 606 at 613 – 614. His Honour said that the correct principle to be applied in cases of discrepancy, was that a court of appeal was "entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate" - [my emphasis]. In this case, Mr Cowen received a term of imprisonment of 17 months longer than his co-accused, and a higher proportion for the minimum term, in that he is to serve two thirds of his total sentence of 5½ years before becoming eligible for parole, as against Mr Braslin's non-parole period of one half.
In the context of the present argument, there needs to be something which justifies that disparity. On its face it is quite marked. Given the respective roles of the two appellants, the justification must be found in Mr Cowen's antecedents. In my view there is sufficient in his personal circumstances and prior criminal history to justify the disparate approach. He is about 6½ years older. I have already noted his criminal history; in particular his situation in relation to a suspended sentence, and his most recent conduct following his release on parole in July 2007. The need for personal deterrence, and for general deterrence directed towards frequent offenders and recidivists, was a strong one.
I would dismiss both appeals.
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