Mabb v Tasmania [2008] TASSC 22

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Non-parole period or minimum term - Relevance of remissions when considering non-parole period.

Corrections Act 1997 (Tas), s86.

Corrections Regulations 1998 (Tas), reg23(1)(a).

Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348, followed.

Judgment Number: [2008] TASSC 22

1 The appellant appeals against the sentence imposed on him following his conviction, together with Dean Braslin and Barry Braslin, on a charge of causing grievous bodily harm in breach of the Criminal Code, s172. Each offender pleaded not guilty to the charge, but changed his plea to guilty on the second day of the trial.

2 The appellant, who was 34 years of age when sentenced, had an appalling record for crimes of violence. His first significant conviction was in 1992 when he and one Kevin Braslin, having involved themselves in a brawl at a rugby club social function, brutally punched and kicked their victim about the head and body. He died. The crime the appellant was convicted of did not encompass causing the victim's death, as the prosecution could not establish who actually caused it. The appellant was convicted of assault and sentenced to two years' imprisonment. His second significant conviction was in 1995. He and a friend were evicted from a hotel following an altercation with the victim. They waited outside the hotel until the victim left at closing time. In the course of what then ensued, and as the victim was being restrained, the appellant ran to him and stabbed him in the stomach with a knife, causing a very serious wound. The appellant was convicted of wounding and sentenced to two years' imprisonment. He has since been convicted of common assaults committed in November 2000, December 2000, June 2005 and July 2005. The latter two convictions were recorded subsequent to the crime which is the subject of this appeal, which was committed on 17 June 2006. For it the learned sentencing judge sentenced the appellant to four years' imprisonment, and ordered that he not be eligible for release on parole until he served three years six months of the sentence. Dean Braslin, who was 23 years of age when sentenced, had spent most of his life in juvenile detention. He was 12 years of age when he committed his first assault. Since that offence, he had 12 convictions for offences involving violence, as well as many other offences. He was sentenced to four years' imprisonment and no order was made as to his eligibility to apply for parole. Barry Braslin was 21 years of age and 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.

3 The appellant appeals against the sentence imposed on him on the ground that both the head sentence and the non-parole period are manifestly excessive.

4 The crime which is the subject of this appeal was a very violent assault. Each of the three offenders was armed with a piece of wood and repeatedly hit Marco Samoukovic about the head and body. So violent was the attack that he suffered multiple skull, facial, rib and hand fractures, together with multiple lacerations. Serious injuries were caused to his brain and lungs. He underwent several major operations. He spent many months in hospital and later in rehabilitation. He has been left with multiple serious deficits, many of which are likely to be permanent.

5 The learned sentencing judge's findings in relation to the circumstances of the crime have not been challenged. His Honour 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."

6 I digress to address the learned sentencing judge's comment that:

"So violent was the attack that I find that the accused intended to cause the complainant grievous bodily harm."

That comment reflects an exchange between his Honour and the prosecutor in the course of the sentencing hearing when his Honour raised the finding that he should make as to the mental element of the offenders. They were not convicted of committing an unlawful act intended to cause bodily harm in breach of the Code, s170, an element of which crime is a specific intention to cause grievous bodily harm. They were convicted of causing grievous bodily harm in breach of the Code, s172. A specific intention is not an element of this crime, the requisite mental element being an intention to cause grievous bodily harm or subjective recklessness, R v Bennett [1990] Tas R 72. The direction to the jury approved by the Court of Criminal Appeal in that case was that in order to convict the accused of causing grievous bodily harm, the jury would have to be satisfied beyond reasonable doubt:

"That at the time he performed that act he intended to cause bodily harm of that kind or he foresaw the likelihood that such harm may be caused."

In the course of the exchange mentioned between the learned sentencing judge and the prosecutor, his Honour queried whether his finding as to the mental element should be "that they intended to cause grievous bodily harm or that they foresaw grievous bodily harm as a likely consequence of the unlawful acts?" The prosecutor's response was that the finding should be that they intended to cause grievous bodily harm. In the course of the submissions that followed from each offender's counsel, no counsel demurred from that response. I have addressed this matter because the bald finding that the accused intended to cause the complainant grievous bodily harm might give the impression that, contrary to the principles enunciated in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, the offenders were punished for a breach of the Code, s170, rather than the crime of which they were convicted, a breach of the Code, s172_._ That is not the case, and counsel for the appellant has not suggested otherwise.

7 Counsel for the appellant submits that the head sentence of four years' imprisonment imposed on the appellant was at the upper end of the penalty range for his offence. Counsel rightly acknowledges that the sentence was not outside the applicable penalty range. In Professor Kate Warner's text, Sentencing in Tasmania, 2nd ed, Federation Press 2002, pars11.305 to 11.309, she deals with the crimes of wounding and causing grievous bodily harm together, as each crime is the subject of the Code, s172. Professor Warner notes that the crime of causing grievous bodily harm tends to attract a more severe sentence than that of wounding, and that sentences of two to three years were at the top of the range for wounding, but that sentences of three to five years were at the top of the range for causing grievous bodily harm. Table 6 in par11.306 of the text shows the median sentence for a single count of grievous bodily harm to be eighteen months' imprisonment. However, of more significance to me is the fact that the table shows that from 1990 to 2000, 14 sentences of four years and above were imposed for a single count of wounding or causing grievous bodily harm. This confirms that the sentence imposed by the learned sentencing judge was within the range of sentences that have been imposed for breaches of the Code, s172. When considering this range, it is to be remembered that a number of the sentences that form the basis of the table referred to attracted a real discount for an early plea of guilty. The appellant and his co-offenders did not plead guilty until the second day of the trial, a course which had little, if any, mitigatory effect.

8 Insofar as the complainant said "follow me" to the offenders and led them into the street, it may be said that the complainant was willing to engage in a physical confrontation with the offenders. Whilst this is a point of distinction between the crime in question and many of those that are the subject of the table referred to, there are a number of aggravating factors associated with the crime in question. They include:

• The number of assailants, three onto one.

• The use of weapons, each offender was armed with a piece of wood. The piece held by the appellant was described by one witness as being about one metre long and "two or three inches across".

• The duration of the attack and the number of blows struck. It persisted for sufficient time for each offender to repeatedly strike Mr Samoukovic about the head and body. The appellant and Barry Braslin were seen to strike Mr Samoukovic three or four times as he lay motionless and defenceless on the ground.

• The gravity of Mr Samoukovic's injuries. As their extent was reasonably foreseeable if not actually foreseen they are relevant for sentencing purposes, Lambie v State of Tasmania [2007] TASSC 10; (2007) 16 Tas R 151, pars21 - 29.

9 Nothing put before the Court satisfies me that the head sentence of four years' imprisonment imposed on the appellant was beyond the range applicable to his crime and his circumstances. It was not manifestly excessive.

10 The appellant and Dean Braslin received the same head sentence, four years' imprisonment. However, whilst the learned sentencing judge made an order to the effect that the appellant be eligible to apply for release on parole after he served 3½ years of his sentence, his Honour made no order that Dean Braslin be eligible for release on parole. On the face of these sentences, the appellant, if he obtained parole, would serve six months less than Dean Braslin. The appellant, in substance, contends that this apparent difference is inadequate and illusory. It is argued on behalf of the appellant that in the ordinary course he 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 that the real benefit to him of his eligibility to apply for parole after serving 3½ years of his sentence is that he may avoid serving, at most, three months' imprisonment. It is argued that this benefit is manifestly less than that which was fitting and is too little to draw an appropriate distinction between the sentence imposed on him and that of Dean Braslin.

11 It is legitimate to pay regard to the availability of remissions when considering parole eligibility. As explained in the joint judgment of the five members of the High Court who decided Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 355 - 356:

"... it should be stressed that the general rule ... is not that a judge must pay no regard whatsoever in the sentencing process to the availability of remissions for good behaviour while a prisoner is in custody. The general rule is that it is not permissible for a sentencing judge to treat the likelihood of remissions for good behaviour as itself constituting a ground for increasing what would otherwise be the appropriate head sentence.

Somewhat different considerations govern the extent to which a sentencing judge may be influenced by the operation of a remissions system in fixing a non-parole period. The length of a non-parole period is necessarily confined within the period of the head sentence and there is no question of transgressing the basic principle that a term of imprisonment cannot properly exceed that which is justified as appropriate or proportionate punishment for the objective offence. Both a remissions system and a parole system are ordinarily predicated upon the functioning of ordinary sentencing procedures and apply to excuse or release the prisoner from service of the full term of the sentence which is appropriate to his crime. There is no reason in principle why a sentencing judge should be precluded from taking account of the likely effect of remissions against the head sentence in fixing a non-parole period. As a practical matter, the fixing of an appropriate non-parole period may, in some circumstances, require that regard be paid to the likely effect of remissions upon the head sentence. Thus, during the period in which the South Australian remissions system operated to reduce the time required to be served under the head sentence but did not affect the non-parole period, the South Australian Court of Criminal Appeal recognized that it was necessary that a sentencing judge pay regard, when fixing a non-parole period, to the likely effect of remissions upon the head sentence to avoid rendering the parole system nugatory by fixing a non-parole period which extended beyond the earlier unconditional release of the prisoner (see Reg v Eckardt (1971) 1 SASR 347 at pp 349-350; and cf Reg v Paivinen (1985) 158 CLR at p 495)."

12 The intention that underpins legislation as to parole eligibility 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 all the circumstances of the offence: see Deakin v R [1984] HCA 31; (1984) 58 ALJR 367 and Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629. As to the minimum time that an offender must serve, it is to be borne in mind that a primary consideration when sentencing an offender is the protection of the community; the Sentencing Act 1997, s3(b). In view of the appellant's appalling record for crimes of violence (an offender's antecedents are designated to be relevant to parole eligibility, the Sentencing Act, s17(4)(b)), and the fact that he was over ten years older than his co-offenders, it is likely that the learned sentencing judge gave very serious consideration to declining to make the appellant eligible for parole. That his Honour did allow the appellant a short period of parole eligibility is indicative of a recognition that for sentencing purposes some distinction, in favour of the appellant, should be drawn between the appellant and Dean Braslin. On the information before his Honour, it would not have been unreasonable to have declined to draw the distinction. That the distinction was drawn, but the benefit was only relatively modest, does not demonstrate error. Where such a distinction is open and appropriate, it would be wrong not to provide an offender with the benefit of it. Whilst three months may not be a significant portion of a sentence of four years, few would eschew an opportunity to avoid three months of a period of imprisonment.

13 I am unpersuaded that the learned sentencing judge erred in relation to the parole eligibility period that he fixed. It did not involve any manifest disparity. I would dismiss the appeal.

14 I agree that this appeal should be dismissed, for the reasons stated by Evans J. Having regard to the seriousness of the appellant's crime, and to his record for crimes of violence, I consider that the head sentence of four years' imprisonment was well within the range of appropriate penalties.

15 I have had the opportunity to read the reasons of Evans J with which I wholly agree. I would also dismiss the appeal.