Braslin, Corey Wayne v Tasmania (State of) [TASCCA]

• Jurisdiction: Tasmania
• Judge: Evans J,Tennent J,Porter J
• Judgment Date: 28 January 2010
• Docket Number: CCA 163/2009
• Court: Court of Criminal Appeal
• Date: 28 January 2010

[2010] TASCCA 1

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Tennent and Porter JJ

CCA 163/2009

CCA 172/2009

Braslin, Corey Wayne

and

Tasmania (State of)

Cowen, Leigh Kevin

and

Tasmania (State of)

R v Tran (2002) 4 VR 457 ; KT v R (2008) 182 A Crim R 571, applied.

Aust Dig Criminal Law [3260]

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.

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]

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J

1 I have read the draft reasons of Porter J. I agree with those reasons and would also dismiss both appeals.

Tennent J

2 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.

Porter J

The appeals

3 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.

4 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

5 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.’

6 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.

7 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.

8 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 veryupsetting 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

9 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.

10 On behalf of Mr Braslin, the...