Braslin v The Queen
[2001] TASSC 22
•8 March 2001
[2001] TASSC 22
CITATION: Braslin v R [2001] TASSC 22
PARTIES: BRASLIN, Leslie Raymond
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 103/2000
DELIVERED ON: 8 March 2001
DELIVERED AT: Hobart
HEARING DATES: 8 March 2001
JUDGMENT OF: Crawford, Evans and Blow JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: In Person
Respondent: T J Ellis
Solicitors:
Applicant: In Person
Respondent: Director of Public Prosecutions
Judgment Number: [2001] TASSC 22
Number of Paragraphs: 13
Serial No 22/2001
File No CCA 103/2000
LESLIE RAYMOND BRASLIN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
EVANS J
BLOW J
8 March 2001
Orders of the Court
Application for an extension of time dismissed.
Appeals dismissed.
Serial No 22/2001
File No CCA 103/2000
LESLIE RAYMOND BRASLIN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
EVANS J
BLOW J
8 March 2001
In these proceedings the applicant is seeking to challenge orders made by Underwood J on 1 November 2000 in respect of a previously suspended sentence of 6 months' imprisonment. The order made was that 4 months of that sentence be put into immediate execution, and that the balance of 2 months' imprisonment be suspended on condition that the applicant be of good behaviour for a period of 2 years from that day.
The Criminal Code, s407(1), requires any person who has been convicted and desires to appeal against any sentence to give notice of appeal within 14 days of the date of the sentence. The applicant did not give notice of appeal within 14 days after 1 November 2000, but he subsequently filed a number of documents in the Court: two documents headed "Notice of Appeal" dated 16 November 2000 and 22 January 2001; an application for extension of time to appeal dated 22 January 2001; and two affidavits, both sworn on 22 January 2001. As the applicant is unrepresented, we think the preferable course is to consider the merits of his proposed appeal.
The sequence of events leading to the orders of Underwood J of 1 November 2000 was as follows:
(a)On 7 March 1997, the applicant pleaded guilty before Underwood J to two counts of assault, contrary to the Criminal Code, s184, each involving an assault on a man named Darren James Feil. Each of those assaults occurred on 13 July 1996. Underwood J sentenced the applicant to 6 months' imprisonment on those charges, but wholly suspended that term of imprisonment. One of the conditions upon which the sentence was suspended was that the applicant was to be of good behaviour for a period of 2 years.
(b)On 21 April 1997, the applicant pleaded guilty before Wright J to a further charge of assault pursuant to the Criminal Code, s184. This crime involved an assault on a Mr Fenton and a number of other people on 23 September 1996. Wright J sentenced the applicant to 3 months' imprisonment, but suspended half of that term upon a condition that the applicant be of good behaviour for a period of 2 years.
(c)In late 1999, the applicant and two of his relatives were tried before Underwood J in relation to an incident that occurred on 3 February 1999. The applicant was convicted of three counts of aggravated assault and one count of assault. On 6 December 1999, Underwood J sentenced the applicant to 9 months' imprisonment on those charges. An appeal against his conviction was subsequently dismissed: Braslin v R [2000] TASSC 133.
(d)On 9 December 1999, in consequence of the convictions relating to the incident on 3 February 1999, the Director of Public Prosecutions made two applications pursuant to the Sentencing Act 1997, s27(1), seeking orders in respect of the suspended sentences imposed by Underwood J and Wright J. On 1 September 2000, Underwood J ordered that the suspended part of the sentence imposed by Wright J be put into execution. On 1 November 2000, Underwood J made the orders that the applicant is now seeking to challenge in respect of the suspended sentence of 7 March 1997.
A mistake was made in the application of 9 December 1999 in respect of the suspended sentence imposed by Underwood J. That application referred to the applicant "committing the crimes of Aggravated Assault (4 counts) and Assault on the 3rd of February 1999", when in fact the applicant had only been convicted of three counts of aggravated assault, not four counts, in respect of the relevant incident. The same mistake was made in the applicant's record of prior convictions which was tendered on the hearing of that application. However, the transcript of those proceedings reveals (at 4) that on 1 September 2000 the Director of Public Prosecutions, Mr Ellis, tendered a certificate of conviction and a copy of his Honour's comments on passing sentence in relation to the convictions of December 1999. Both correctly referred to three counts of aggravated assault and one of assault. It is apparent from the transcript of the proceedings that the discrepancies as to the number of convictions for aggravated assault were not noticed. It is evident from the comments made by the learned primary judge on passing sentence on 1 November 2000 that this was of no consequence. All that his Honour said about the crimes of 3 February 1999 was:
"On 3 February 1999 you committed a further crime ¾ crimes involving violence and on 2 December 1999 you were sentenced to nine months' imprisonment for aggravated assault and assault. The circumstances surrounding the commission of those crimes bore, as I said at the time I imposed sentence, a chilling similarity to the circumstances surrounding the previous assaults, namely you decided to take the law into your own hands and inflict violence to right what you perceived to be a wrong."
The exact number of convictions for aggravated assault in respect of the incident on 3 February 1999 was of no significance. The learned primary judge plainly did not rely upon the incorrect information that there had been four such convictions, but took into account only the general nature of the applicant's criminal behaviour during the incident in question.
The applicant complained that his record of prior convictions contained a reference to a hearing in 1990 involving charges of receiving and stealing, when no adverse finding was made against him. However, it is apparent from the document that no adverse finding was then made, and there is no reason to think this entry was taken into account by Underwood J.
The applicant complained in the first "notice of appeal" about the learned primary judge relying on a psychiatric report by Dr Lopes. The applicant wrote, "conflict of interest in Doctor's report on assessment made by Dr Lopez [sic] for the Appellant His self". It was originally proposed that another doctor furnish a report. The applicant complains that Dr Lopes was an inappropriate choice. However, his counsel encouraged the obtaining of a report from Dr Lopes who had seen the applicant twice. We have no reason to think Underwood J erred in relying on that report, or in not seeking another. His Honour was entitled to take into account all that was said in the report for sentencing purposes. In fact he took one comment made by the doctor into account in the applicant's favour, in that he further suspended 2 months of the sentence because of the doctor's opinion that some portion should be kept suspended as a reminder to the applicant to continue with counselling and to curtail his aggressive propensities. In our view, the report of Dr Lopes saved the applicant from an additional 2 months' immediate imprisonment, and his complaints concerning the use of that report therefore have no merit. It is true that the learned sentencing judge put 4 months of the sentence into effect despite Dr Lopes' diagnoses of anxiety, depression and paranoia, but there is no reason to think that some more favourable course might have been taken if a report had been obtained from a different doctor, or if no report had been tendered at all.
In the second "notice of appeal", the applicant complained to the effect that the learned sentencing judge erred by taking into account a false report made by the applicant's wife. When the suspended sentence was originally imposed in March 1997, the applicant's wife had been facing a charge of making a false complaint of rape. During submissions on 1 November 2000, the learned primary judge enquired as to the outcome of that case, and was told by the applicant's counsel that the police did not proceed with that complaint, and that it was dismissed. His Honour was told that the applicant's wife believed her complaints to be true, that she had sought a restraint order against a man who was apparently involved in a case concerning her allegedly being raped, and that there was still some ongoing animosity between certain parties. In his comments on 1 November 2000, the learned sentencing judge referred to the assaults on Mr Feil, referring to him as "a person whom you believed had wronged your wife by raping her". His Honour went on to say, "Whether or not that was true is a mystery that I don't suppose anybody will resolve, however the aggravating circumstance was that you decided to take the law into your own hands and inflict violence". His Honour was not treating the applicant's wife's complaints as false. There is no merit in the suggestion that he was treating them as false. The sentencing comments of Wright J contained an assertion that the complaint of a rape was false, but that comment was not adverted to or relied upon by Underwood J.
In the second "notice of appeal", the applicant complained that Mr Ellis told known untruths to the learned sentencing judge about the applicant's wife. All that the Mr Ellis said about her was as follows:
"I don't want to muddy the waters too far about Mrs Braslin. I just have a distinct recollection of seeing a prior conviction for making a false report, which I saw when I was preparing to cross-examine her on the appeal, but as I say this may go nowhere."
His Honour decided to disregard that comment and to ignore the suggestion that the applicant's wife had been convicted. It therefore cannot be said that the comments we have quoted had any significance in relation to the orders that the applicant seeks to challenge.
In the second "notice of appeal", the applicant complained that Mr Ellis told untruths about his prior convictions of dishonesty. The applicant appeared before a Children's Court in 1971, when he was 13 years old, on charges of burglary and stealing, and was placed under the supervision of the Director of Social Welfare for 2 years. He appeared in a Children's Court in September 1974, when he was 16 years old, on a number of charges including one of motor vehicle stealing. On that charge, he was placed on 2 years' probation and disqualified from driving until his eighteenth birthday. In June 1980, he appeared in the Hobart Court of Petty Sessions on five charges of making a false declaration, for which he was fined $150, plus $5 costs. He was then 22 years old. He has no convictions for any other offences of dishonesty. When tendering the applicant's record of prior convictions, Mr Ellis referred to the relevant convictions for assault, and to "other crimes of dishonesty and violence". Of course only the 1971 matters amounted to crimes. The 1974 and 1984 matters were apparently offences that did not amount to crimes. The convictions for matters of dishonesty were of no significance, and were not mentioned in the comments on passing sentence. There is no reason to think that the mention of them by Mr Ellis made any difference to the orders of the learned sentencing judge.
In the longer of his two affidavits and in his submissions to this Court, the applicant made a number of assertions which he apparently seeks to rely on as bases for an appeal. He claims that a number of crimes have been committed against his wife and his children, and that the police will not take appropriate action in relation to such crimes. To the extent that such matters were not mentioned in submissions before the learned sentencing judge, they are irrelevant. They were only relevant to the extent that they supported his Honour's conclusion to the effect that the applicant had repeatedly taken the law into his own hands to right what he perceived to be wrongs. The applicant asserted that it seemed the prosecution would stop at nothing to get a conviction. However there is no reason to think that the Crown has been inappropriately zealous in this case, nor that the learned sentencing judge was influenced by the extent of any prosecutorial zeal.
We have dealt with all of the matters raised by the applicant. None of the suggested grounds of appeal has any merit. If we had seen any merit in any of the proposed grounds of appeal, we would probably have extended time. However, it would be futile to grant an extension of time for an appeal that could not possibly succeed.
His application for an extension of time is dismissed. The appeals are also dismissed.
0
0
0