Braslin v State of Tasmania

[2008] TASSC 50

[2008] TASSC 50

CITATION:              Braslin v State of Tasmania [2008] TASSC 50

PARTIES:  BRASLIN, Dean Phillip
  v
  TASMANIA (STATE OF)

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  232/2007
DELIVERED ON:  4 September 2008
DELIVERED AT:  Hobart
HEARING DATE:  12 August 2008
JUDGMENT OF:  Evans, Blow and Tennent JJ

CATCHWORDS:

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Grounds for interference – Whether sentence manifestly excessive – Failure to make eligible for parole.

Sentencing Act1997 (Tas), ss3(b), 17(3A), (4)(b).
Aust Dig Criminal Law [1003]

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Grounds for interference – Disparity – Co-offenders – Whether disparity between parole eligibility of co-offenders justified.

Aust Dig Criminal Law [1005]

REPRESENTATION:

Counsel:
           Appellant:  K L Baumeler
           Respondent:  A R Jacobs
Solicitors:
           Appellant:  Butler McIntyre & Butler
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2008] TASSC 50
Number of paragraphs:  15

Serial No 50/2008
File No 232/2007

DEAN PHILIP BRASLIN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
BLOW J
TENNENT J

4 September 2008

Order of the Court

Appeal dismissed.

Serial No 50/2008
File No 232/2007

DEAN PHILIP BRASLIN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J

4 September 2008

1. The appellant appeals against the sentence imposed on him following his conviction, together with Jason Mabb and Barry Braslin, on a charge of causing grievous bodily harm, in breach of the Criminal Code, s172.

1. The appellant and Jason Mabb each had prior convictions for crimes of violence.  The appellant was sentenced to four years' imprisonment and no order was made as to his eligibility to apply for parole.  Jason Mabb was sentenced to four years' imprisonment, and it was ordered that he not be eligible for release on parole until he had served three years six months of the sentence.  Barry Braslin, who was 21 years of age when sentenced, had no prior convictions for an offence involving violence.  He was sentenced to three years' imprisonment and it was ordered that he not be eligible for release on parole until he had served 21 months of the sentence.

1. The appellant appeals against the sentenced imposed on him on the ground that it was manifestly excessive insofar as the learned sentencing judge did not make an order as to his parole eligibility.  This ground was advanced firstly on the basis that the appellant ought to have been granted parole, and secondly on the basis of parity between the appellant and Jason Mabb.  The lesser sentence imposed on Barry Braslin was properly not raised in support of the parity argument.  The circumstances of the appellant cannot be compared with those of Barry Braslin.

1. Although the head sentence of four years' imprisonment has not been appealed, the circumstances of the crime are relevant to the question of parole eligibility. 

1. As to the circumstances, the learned sentencing judge said:

"For the purpose of imposing sentence, I find in the case of each of the accused, that they met up on the evening of Friday 16 June 2006 at a house in Clarendon Vale where they played 8-ball and drank beer with a number of other people.  I find that as the evening progressed, Dean Braslin and Jason Mabb began taunting or picking on the complainant.  It appears that there has been a long-standing feud between the Braslin family and the Samoukovic family, the basis for which is not apparent.  Animosity was in the air.  The complainant was persuaded to leave the house and got into the back of a car with a Ms Henderson.  As he did so, verbal abuse was exchanged between the complainant and the three accused.  Dean Braslin said to get the complainant out of the car.  However, the car was driven off, but shortly after stopped at the request of the complainant to confront the three accused who were on the roadway.  Dean Braslin tried to pull the complainant out of the car, but Ms Henderson prevented this and the car drove off to the Henderson house.  The accused also went to the Henderson address and made a racket outside, shouting abuse.  The complainant decided he would not put up with it any longer and went outside to confront the accused.  Ms Henderson gave the complainant a table leg to take with him. ... 

Outside the Henderson house, there was a confrontation between the complainant and the three accused, during which Barry Braslin was hit with the table leg.  The complainant then issued the challenge, 'follow me' and went up the street a short distance, followed by the three accused.

I find that at this time the three accused formed a common purpose to assault the complainant.  Their purpose was put into effect shortly after the complainant arrived at the house of a friend of his, Mr Triffett.  As the complainant stood on the front steps of Mr Triffett's house, the accused rushed at him.  So violent was the attack that I find that the accused intended to cause the complainant grievous bodily harm.  The evidence does not permit a finding as to which of the accused struck which blows, but I find that all three are liable for the crime to which they have pleaded guilty upon the basis that it was a probable consequence of the prosecution of the unlawful common purpose to assault the complainant.  The complainant was left lying at the bottom of the front steps, unconscious and bleeding profusely from the head.

There is no rational explanation for this violent and frenzied attack which nearly caused a death.  All those concerned had been drinking alcohol and, as is so often the case, this no doubt contributed to the brutality inflicted by the accused.  I find that there are no mitigating circumstances surrounding the commission of the crime."

1. Since 1 October 2002, when the Sentencing Act 1997, s17, was amended by the Sentencing Amendment Act 2002, the law referable to parole has been that in the absence of a court order specifying that a prisoner is eligible to apply for parole after serving a specified period of the sentence, the prisoner is not eligible for parole, see the Sentencing Act, s17(3A). Accordingly the default position is that a prisoner is not eligible for parole. The purpose that underpins legislation empowering a sentencer to order that a prisoner be eligible to apply for parole, is the mitigation of punishment in favour of rehabilitation through conditional release, once an offender has served the minimum time that the sentencer determines justice requires that the offender must serve, having regard to the all the circumstances of the offence, see Deakin v R (1984) 58 ALJR 367 and Power v R (1974) 131 CLR 623 at 629. As to the minimum time that an offender must serve, it is pertinent that a primary consideration when sentencing an offender is the protection of the community, the Sentencing Act, s3(b). The appellant had many prior convictions and this, together with his other antecedents, was relevant to his parole eligibility, see the Sentencing Act, s17(4)(b). When sentencing the appellant, the learned sentencing judge said:

"Dean Braslin is 23 and, as his counsel said, has spent most of his life in juvenile detention.  He was 11 years old when he committed his first offence and only a year older when he committed his first assault.  Since then he has been convicted of 12 crimes or offences of violence, as well as many other offences.  When he was only 15 years old and being sentenced for the crime of wounding with a flick knife, I said:

'You simply will not comply with the rules that enable this society to live harmoniously.  You have refused to accept the assistance that has been offered to you and according to the opinion of the youth justice worker, it appears that you choose to accept your punishment on a tariff basis.'

Nothing appears to have changed in the intervening years."

1. The learned sentencing judge expressly declined to make an order for the appellant's release on parole.  The appellant had many prior convictions for crimes of violence.  The material before the learned sentencing judge also showed that on 2 April 2003, when I sentenced the appellant to twelve months' imprisonment for assault, I said that in view of his record of prior convictions I did not consider it appropriate to fix a parole eligibility date and I did not do so.  Similarly, when Slicer J sentenced the appellant to twelve months' imprisonment with effect from 28 August 2004 for two counts of assault, he did not make an order that the appellant be eligible to apply for parole.  Within less than three months of the appellant's release from prison in relation to that sentence, he assaulted a police officer on two occasions on 20 August 2005, and between the date of his release and the date of the crime which is the subject of this appeal, the appellant committed a number of offences that included driving whilst disqualified on four occasions and failing to appear and breaching his bail on five occasions.  Against the background of this recent history and of the appellant's record for crimes of violence, there was good reason for the learned sentencing judge to decline to order that the appellant be eligible for release on parole.  That his Honour took that course does not provide a basis for concluding that the sentence imposed was manifestly excessive, because the appellant was not made eligible for parole.

1. The appellant contends that, on the basis of parity with Jason Mabb, he should also have been made eligible for parole.  The parity principle in relation to the sentencing of joint offenders is a reflection of the notion of equal justice.  A discrepancy between the sentences imposed on co-offenders will attract appellate intervention:

·where the magnitude of the discrepancy is manifestly excessive; Lowe v R (1984) 154 CLR 606, Mason J (as he then was) at 614 – 615 and Dawson J, agreed with by Wilson J, at 624, and Postiglionev R (1997) 189 CLR 295, McHugh J at 309 and Gummow J at 323; and

·where the discrepancy is such as to give rise to a justifiable sense of grievance and appearance of injustice; Lowe, Gibbs CJ at 610, Mason J at 613 and Dawson J, agreed with by Wilson J, at 623 and Postiglione, Dawson and Gaudron JJ at 301, McHugh J at 309, Gummow J at 323 and Kirby J at 342.

1. The assessment of whether the circumstances of a discrepancy give rise to a justifiable sense of grievance and appearance of injustice must be objective, as a sense of grievance can only be said to be justified if it can be so established.  See Lowe, Mason J at 613 and Postiglione, Gummow J at 323 and Kirby J at 342.

1. The apparent discrepancy between the sentences imposed on the appellant and Jason Mabb is that the latter has been given an opportunity to apply for parole which may result in him being released after serving three years six months of his sentence.  This is not a potential discrepancy of six months' between their sentences, as in the ordinary course the appellant will obtain the benefit of a three month remission of his sentence, pursuant to the Corrections Act 1997, s86, and the Corrections Regulations 1998, reg23(1)(a). So, in the ordinary course, the appellant will be released after serving three years and nine months of his sentence. Accordingly, the real discrepancy between their sentences is the possibility that Jason Mabb may, by obtaining parole, be released three months earlier than the appellant. In the context of sentences totalling four years, I am dubious that a contingent discrepancy of three months would amount to a manifest discrepancy if the circumstances of the appellant and Jason Mabb were the same. In any event, I am not satisfied that they are the same.

1. In terms of their role in the commission of the crime, no distinction is to be drawn between them.  As to their personal circumstances, it is to the appellant's benefit that he was considerably younger than Jason Mabb who was 34 years of age when sentenced, whilst the appellant was 23 years of age.  Counsel for the appellant also placed emphasis on the fact that the appellant had never been paroled, whilst Jason Mabb had been paroled in 1993 and 1996.  For the purposes of parity, I do not consider that this difference is of any significance.  From the point of view of Jason Mabb, it could be said that as his record showed that he had not breached parole when granted to him, the Court could more readily grant him parole.  From the appellant's point of view, it could be said that as he had never been paroled in the past, the Court should more readily afford him that opportunity and the Court had no reason to conclude that he would not comply with parole if granted.  The real point of distinction between the appellant and Jason Mabb is their records.  Jason Mabb's first conviction was recorded on 6 February 1990, and the appellant's first conviction was recorded on 24 August 1994.  The following is a comparison of relevant aspects of their records in which convictions for an attempted offence have been lumped in with convictions for that offence.

Crime	Number of Counts Dean Braslin	Number of Counts Jason Mabb
Wounding	1	1
Assault	9	5
Assault police	5	-
Escape	6	-
Aggravated robbery	1	-
Resisting or threatening a police officer	6	-
Disorderly conduct or the like	12	3
Breach of restraint order	3	-
Stealing	10	-
Receiving	1	-
Trespass	6	-
Motor vehicle stealing	28	-
Injure or destroy property	5	3
Negligent or dangerous driving	5	1
Exceed .05	-	2
Driving whilst disqualified	17	2
Speeding	1	9

1. The appellant and Jason Mabb each had an appalling record of prior convictions for crimes of violence.  That apart, the above comparison shows that in general terms, awful as Jason Mabb's record was, the appellant's record was markedly worse.  In these circumstances, the learned sentencing judge was perfectly entitled to distinguish between them for sentencing purposes.  The difference between their sentences is not impeachable on the basis of parity.

1. I would dismiss the appeal.

   File No 232/2007

DEAN PHILIP BRASLIN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  BLOW J
  4 September 2008

1. I agree that this appeal should be dismissed, for the reasons stated by Evans J.

   File No 232/2007

DEAN PHILIP BRASLIN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J

4 September 2008

1. I have had the opportunity to read the reasons of Evans J in this matter. I agree with those reasons and would also dismiss the appeal