Lahni Wood v The Queen
[2019] VSCA 39
•6 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0084
| LAHNI WOOD | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2018 0086
| PETER BELL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 February 2019 |
| DATE OF JUDGMENT: | 6 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 39 |
JUDGMENT APPEALED FROM: | DPP v Bell [2017] VCC 1952 (Judge Ryan) |
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CRIMINAL LAW – Appeal – Sentence – Vigilante attack by four co-offenders – Charges of aggravated burglary and common law assault – Applicant (Wood) participated primarily, though not exclusively, as navigator – Whether error in assessment of role in offending – Undue disparity and insufficient disparity between co-offenders established – Justifiable sense of grievance – Appeal allowed though total effective sentence of 3 years and 2 months’ imprisonment not manifestly excessive — Resentenced to 2 years and 7 months’ imprisonment to bring sentence into line with that of co-offender, and to achieve appropriate parity.
CRIMINAL LAW – Appeal – Sentence – Whether total effective sentence imposed upon applicant (Bell) of 4 years and 5 months’ imprisonment manifestly excessive – Sentence within range – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Wood: | Ms G A Coghlan | Stary Norton Halphen |
| For the Applicant Bell: | Mr J O’Connor | Patrick W Dwyer |
| For the Crown: | Mr J McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA
WEINBERG JA:
These are two applications for leave to appeal against sentence brought by Lahnii Wood and Peter Bell. Both applicants pleaded guilty, on 22 November 2017, to various offences arising out of the same events. The offences took place on 18 December 2016.
Ms Wood pleaded guilty to two charges only, one of aggravated burglary, and one of common assault. Mr Bell pleaded guilty to four charges, one of aggravated burglary, one of recklessly causing injury, one of common assault and one of criminal damage.
On 18 December 2017, each applicant was sentenced as follows:
Lahnii Wood
Charge Offence Maximum Sentence Cumulation 2 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years 3 years Base 4 Assault
[Common law]5 years 6 months 2 months Total Effective Sentence: 3 years and 2 months Non-parole Period 19 months Pre-sentence Detention Declared 25 days S 6AAA Declaration Pursuant to Sentencing Act 1991: 5 years with a non-parole period of 2 years and 6 months
Peter Bell
Charge Offence Maximum Sentence Cumulation 1 Aggravated burglary 25 years 4 years Base 3 Recklessly cause injury [Crimes Act s 18] 5 years 6 months 2 months 4 Assault [Common law] 5 years 6 months 2 months 5 Criminal damage [Crimes Act s 197(1)] 5 years 3 months 1 month Total Effective Sentence 4 years and 5 months Non-parole Period 2 years and 6 months Pre-sentence Detention Declared 25 days 6AAA Declaration Pursuant to Sentencing Act: 6 years and 6 months with a non-parole period of 4 years 6 months
Ms Wood seeks leave to appeal on the following grounds:
(1)The learned sentencing judge erred in finding disparity, which was not reasonably open with the sentence imposed on co-offenders Yates, Gruevski and Bell; and
(2)The learned sentencing judge erred in his assessment of the roles played by the applicant and her co-offenders, in particular:
(a)The applicant was denied procedural fairness by the learned sentencing judge making a finding that the applicant had made a post offence threat when the Crown had disavowed that aggravating circumstance; and
(3)The learned sentencing judge erred by imposing individual sentences and a total effective sentence that were all manifestly excessive considering;
(a)The applicant’s youth at the time of the offending and at sentence.
(b) The applicant’s early plea of guilt.
(c) The applicant’s admissions in the record of interview.
(d) The applicant’s prospects of rehabilitation.
(e) The sentences imposed on co offender Yates.[1]
[1]These are the grounds as amended pursuant to leave granted at the hearing on this application.
Mr Bell seeks leave to appeal on one ground only, namely:
The sentence imposed on charge 1 (aggravated burglary), the total effective sentence and the non-parole period fixed are manifestly excessive.
Particulars:
(a)The sentencing judge gave manifestly insufficient weight to the applicant’s early guilty pleas, his remorse, his good work history, his limited criminal record, his progress towards rehabilitation and the absence of certain otherwise aggravating features.
(b) The sentence imposed contravened the principle of parsimony.
Circumstances surrounding the offending
On 15 July 2016, the primary victim in this matter, Ben Salt, was involved in an altercation at a hotel in Melton, where he assaulted Mr Bell’s daughter, a young woman named Brittany. He ‘glassed’ her, fortunately causing only moderate injuries, including a chipped tooth.
Ms Wood, who knew Brittany and Ben Salt, was present at the time, and witnessed the incident. Ben Salt was arrested and interviewed by police. He was released, pending summons. About a week later, Brittany’s partner, Nick Gruevski, asked her if she knew where Ben Salt lived. She refused to disclose his address, and indicated that she did not want to take the matter any further. She urged Ms Wood not to tell Mr Gruevski where Ben Salt lived, because she feared that Mr Gruevski might retaliate.
In the early part of October 2016, Brittany told police that she did not want to pursue any charges against Ben Salt. Accordingly, on 20 October 2016, the brief of evidence was not authorised, and the investigation was therefore terminated.
On Sunday, 18 December 2016, both Ms Wood and Mr Bell were present at Brittany’s home in Melton South. Mr Gruevski was there as well, as was Kelvin Yates, Ms Wood’s ex-partner. Ms Wood, Mr Bell and Mr Gruevski had all been drinking heavily.
After some time Brittany went up to bed. Ms Wood, Mr Bell, Mr Gruevski and Mr Yates decided to go to Ben Salt’s home, plainly with the intent of punishing him for what he had earlier done to Brittany.
At about 7:30 pm, all four of them drove to Ben Salt’s home. Ms Wood acted as navigator, as she was the only one in the group who knew Ben Salt’s address. Mr Yates was the driver.
They parked some two houses down from Ben Salt’s address. Ms Wood remained in the car while the other three got out. Mr Bell was armed with a metal pipe, about half a metre in length. Neither Ms Wood nor Mr Yates was aware of that fact at the time.
Mr Bell, Mr Gruevski and Mr Yates all walked past Ben Salt’s car, a red Holden Cruze, parked in the driveway of his house. They entered through an unlocked front door. Ben Salt was in his bedroom playing a video game on Xbox through the network with his friend, Damien Leckie, who was in a rear bedroom of the house. Ben Salt’s younger brother, Mitchell, was also in the house, in his own bedroom.
Mr Gruevski and Mr Yates both went into Ben Salt’s bedroom. One of them asked, ‘are you Ben?’. He replied, ‘no’. Mr Yates told him to remain in the bedroom. Mr Gruevski and Mr Yates then left the bedroom, and shut the door behind them. Ben Salt opened the door, and tried to get past, but Mr Yates pushed him back into the room.
Mr Gruevski, accompanied by Mr Bell, then approached Mitchell Salt in his bedroom. They asked him whether he was Ben Salt. Mitchell said ‘no’. They then left the bedroom, and Mr Yates guarded the door, preventing Mitchell Salt from leaving.
Meanwhile, Mr Gruevski and Mr Bell approached Mr Leckie, who, by this stage, was in the lounge room. They asked him where Ben was. Mr Leckie replied, ‘why?’. Mr Gruevski and Mr Bell became angry. They said, ‘Ben likes to glass girls’. At that point, Ben Salt came into the hallway. There, Mr Gruevski punched him twice to the face.
Mr Bell then swung the metal pipe at Mr Leckie. Fortunately, he was able partially to block the blow with his right arm. A scuffle ensued between the two men. During the course of their struggle, Mr Bell grabbed a steak knife from the table next to the couch. That knife had a 15–20 cm blade.
Mr Leckie retreated, behind the couch. Mr Gruevski then approached him and punched him once to the face with a closed fist. This caused Mr Leckie to bleed.
Ms Wood had remained in the car while all this was happening. However, hearing loud noises coming from the house, she eventually got out of the car and entered through the front door. She pointed to Ben Salt, identifying him to Mr Gruevski and Mr Bell, and said ‘he bashes girls’.
At that point, Mr Gruevski and Mr Bell approached Ben Salt and took him into the kitchen area. There, they further assaulted him. Mr Gruevski told Ben Salt to apologise, for what he had done to Brittany some months earlier. Ben Salt immediately replied that he was sorry.
It should be noted that the prosecution contended, on the plea, that Ms Wood was in the kitchen at the time that Ben Salt was being both assaulted and abused. Ben Salt claimed that he heard her yelling out while he was being attacked. It was common ground that Mr Yates had remained at Mitchell Salt’s bedroom door, essentially keeping guard over him.
As a result of Mr Bell’s attack on him with the metal pole, Mr Leckie received cuts to his nose and left arm, as well as bruising to his face, chest, back and arms. Ben Salt received bruising to his back and left arm.
The prosecution, in its written opening on the plea, noted that Mr Gruevski and Mr Bell had warned both Ben Salt and Mr Leckie that they were not to report the matter to the police, and threatened to return with guns if they did.
Mitchell Salt, in his statement to police, claimed that after Ms Wood had come into the house, she had entered his bedroom. He said that she explained that she was sorry for what had occurred, but added that if he called the police, the others would return with guns. The four co-offenders all left the house together. They took the metal pipe and the steak knife with them.
At some point, either before entering the house or upon leaving, Mr Bell damaged the right hand tail light of Ben Salt’s Cruze vehicle. That gave rise to the charge of criminal damage brought against him.
In addition, as they were leaving, Mr Yates stole Ben Salt’s Xbox console and controller, as well as several games from his bedroom. That gave rise to the charge of theft brought against him.
Ms Wood’s application
Grounds 1 and 2
Having regard to the manner in which this application was presented on behalf of Ms Wood, it is convenient to deal with both grounds 1 and 2 together.
Ground 1 of Ms Wood’s application, the parity ground, complains of undue disparity between her sentence, and the sentences imposed on Mr Yates and Mr Gruevski. In addition, and by way of amendment to the ground, she contends that there was insufficient disparity between her sentence, and that of Mr Bell.
Consideration of this ground requires careful consideration of the individual components of each of the sentences involving her co-offenders. It also requires close attention to the total effective sentence in each case.
Ms Wood received a sentence of three years’ imprisonment on the charge of aggravated burglary, and six months’ imprisonment on the charge of common assault, two months of which was cumulated on the sentence on charge one. As previously indicated, her total effective sentence was therefore three years and two months’ imprisonment. A non-parole period of 19 months was fixed.
Mr Yates was sentenced to two years and six months’ imprisonment on the charge of aggravated burglary, and three months’ imprisonment on the charge of common assault. In addition, he received sentences of three months’ imprisonment on each of the charges of recklessly causing injury, and theft. One month of the sentence on the charge of theft was made cumulative upon the sentence for the aggravated burglary. His total effective sentence therefore came to two years and seven months. A non-parole period of 15 months was fixed.
Mr Yates therefore received a total effective sentence which was seven months less than that of Ms Wood, and a non-parole period which was four months less than that fixed in her case.
Stopping at that point, Ms Wood contends that the disparity between the sentence that she received, and that imposed upon Mr Yates, was manifestly excessive. Mr Yates was sentenced for four offences, and Ms Wood for two only. She received significantly heavier sentences on the two charges that were common to both of them.
That was so, even though Ms Wood was several years younger than Mr Yates at the time of this offending. She was aged 24 at the time of sentencing, while he was 28. Neither of them had any prior convictions.
According to counsel for Ms Wood, her client’s role in the commission of these offences was no greater than that of Mr Yates, and she might be regarded as having been less involved. Her role had been confined to acting as the navigator for the group, directing the others to Ben Salt’s house. Mr Yates was the driver, and there was nothing to choose between them in that regard.
In addition, Ms Wood remained in the car throughout the early stages of the offending. Mr Yates was there for the entire time after Mr Bell, Mr Gruevski and he had entered the house.
As previously stated, neither Ms Wood nor Mr Yates was aware of the fact that Mr Bell had armed himself with the metal pole, and plainly intended to use it. Both understood that the purpose of the visit to the house was to mete out some punishment to Ben Salt, in revenge for what he had done to Brittany several months earlier. In that sense, this was a vigilante attack.[2]
[2]See generally DPP v Whiteside (2000) 1 VR 331, 339 (Brooking JA); Hamid v The Queen [2019] VSCA 5 [47]–[49] as to vigilantism.
Of course, both Ms Wood and Mr Yates pleaded guilty. He entered his plea earlier than hers, but it was submitted that this did not account for the significantly heavier overall sentence that she received.
In addition, the sentencing judge had made a slightly more favourable finding with regard to Mr Yates’ prospects of rehabilitation than in relation to Ms Wood.[3] Ms Wood’s counsel also challenged that distinction, submitting that, on the evidence, there was really nothing to distinguish between them in that regard. Ms Wood had no prior convictions. She had a problem with alcohol, but, the judge noted that her prospects of rehabilitation depended upon her remaining abstinent.
[3]DPP v Bell [2017] VCC 1952 [43] (‘Reasons’). Cf [61].
Counsel for Ms Wood submitted that it was almost inexplicable that she should have received a lengthier term of imprisonment, than Mr Yates. It was said that the only conceivable explanation for that outcome must have involved an erroneous finding by the judge that Ms Wood, in some way, played a significantly greater role in the commission of the two offences of which she was convicted than Mr Yates.
As regards the parity point concerning Mr Gruevski, counsel for Ms Wood noted that unlike her client, he had been sentenced on three charges, aggravated burglary, recklessly causing injury, and common assault. He had received an aggregate term of 18 months’ imprisonment, with a three-year community correction order thereafter.
It was submitted on behalf of Ms Wood that there was a stark and inexplicable contrast between the total effective sentence of three years and two months’ imprisonment that she received, and the 18 months’ aggregate sentence (even allowing for the three-year community correction order) imposed on Mr Gruevski. That was particularly so given that Mr Gruevski had a lengthy criminal record, including for offences of violence.
In addition, it was submitted that Mr Gruevski’s role in the present offending had to be regarded as far greater than that of Ms Wood. He entered the house well before she did. He was involved in the initial attack upon Ben Salt, as well as the attack upon Mr Leckie. She had no direct involvement in either of those assaults.
It was submitted that the only mitigating factor present Mr Gruevski’s case, that was not also equally available to Ms Wood, was the factor, personal to him, of his having sustained in the past an acquired brain injury, and having a low IQ, measured at 59. Though Mr Gruevski’s very low IQ was a matter properly to be taken into account, that factor alone could not possibly explain how it was that she received a term of imprisonment more than twice the length of that which Mr Gruevski received.
During the course of oral submissions, counsel for Ms Wood sought, and was granted leave, to argue under the ambit of ground 1, that there was insufficient disparity between the sentence that she received, and that imposed upon Mr Bell. It will be recalled that he was sentenced for four offences, two of which were the same as those to which Ms Wood pleaded guilty. Mr Bell was sentenced on the charge of aggravated burglary to four years’ imprisonment, while Ms Wood was sentenced to three years on that charge. Mr Bell received six months for common assault (the same sentence as Ms Wood received on that charge). In addition, Mr Bell was sentenced to six months’ imprisonment for recklessly causing injury to Mr Leckie, and three months’ imprisonment on the charge of criminal damage to the car.
Ms Wood, through her counsel, asked rhetorically how it was that she could receive a total effective sentence of three years and two months’ imprisonment, when Mr Bell, who was ‘by far the most active participant’ in the offending, received only four years and five months’ imprisonment. In other words, he received a total of only 15 months more than the Ms Wood did for far more serious offending. In addition, his non-parole period was only 11 months greater than that which the judge fixed for her.
In support of ground 1, counsel for Ms Wood drew attention to several aspects of the judge’s sentencing remarks that she submitted might explain how it was that her client had been treated so much more harshly than any of her co-offenders.
As indicated, there is some degree of overlap between grounds 1 and 2. That overlap arises because it was submitted on behalf of Ms Wood that one of the main reasons why her sentence was unduly harsh compared with the sentences imposed upon Mr Yates and Mr Gruevski, was because the judge had overstated the level of her involvement in the commission of these offences.
More particularly, it was submitted that his Honour had erred in finding that Ms Wood had been in the kitchen, at the time that Mr Bell and Mr Gruevski were engaged in the second assault upon Ben Salt.[4] Mr Salt claimed that she had been yelling at him the whole time.
[4]Ibid [14].
The second finding which counsel for Ms Wood sought to attack, was his Honour’s acceptance of Mitchell Salt’s account, as set out in his statement, that Ms Wood had told him after she entered his bedroom, that she was sorry ‘that she and her co-offenders were there’.[5] More particularly, in his statement he asserted that she said that if he called the police, ‘they would be back with guns’.
[5]Ibid [17].
In that regard, the judge stated in his sentencing remarks, ‘I accept that you threatened Mitchell Salt, that should he go to authorities, that your co-offenders would return with a gun’.[6] It was submitted that this being an aggravating factor, his Honour could not properly have been satisfied beyond reasonable doubt that these statements were made.
[6]Ibid [47].
The third such ‘finding’ was based upon an observation, in the sentencing remarks, to the effect that Mr Leckie, in his deposition had described Ms Wood as ‘walking like she was the boss running the whole thing’.[7] In fact, his Honour did not make any specific finding as to her role in anything like those terms. However, it was submitted that merely by mentioning that evidence, it could be assumed that his Honour had accepted it, acted upon it, and used it to elevate Ms Wood’s role to that of the main instigator. It was submitted that there was no proper basis for any such conclusion.
[7]Ibid [15].
With regard to the ‘kitchen finding’, it was submitted that the evidence did not permit a finding, beyond reasonable doubt, that Ms Wood had been in the kitchen, or yelling at Ben Salt, in the way that he described.
Counsel submitted that her predecessor on the plea had made it plain to the judge that he should not find, beyond reasonable doubt, that Ms Wood had been in the kitchen at the relevant time, still less that she had been yelling as alleged. That was because there was conflicting evidence about that matter. Mr Leckie had said that only Mr Bell and Mr Gruevski had been in the kitchen at the time. He made no mention of Ms Wood having been yelling, a matter that would surely have found its way into his statement had it occurred.
As regards the threat to Mitchell Salt, it was submitted that Ms Wood had said nothing of that kind. Rather, she had merely told him that she was sorry about what had occurred.
Counsel acknowledged that there had indeed been a threat made to return with guns if police were called. However, it was submitted that Ms Wood had not been party to that threat.
In that regard, it was noted that the prosecution opening, in its original form, had attributed that threat to all four co-offenders, and specified that it had been made to Ben and not Mitchell Salt. However, the prosecution had deleted the reference to Ms Wood and Mr Yates from its opening, thereby, so it was said, making it clear that this particular aggravating feature was not alleged against Ms Wood. It was wrong therefore, for the sentencing judge to have included reference to the warning about returning with guns in his sentencing remarks when dealing with Ms Wood, notwithstanding the fact that the claim that she had given that warning appeared in Mitchell Salt’s untested deposition.[8]
[8]The judge did not refer to this threat, in terms, as an aggravating factor. However, there can be little doubt that he regarded it as such, given its place in para [47] of his sentencing remarks: see ibid [47].
It is unnecessary, for present purposes, to rule upon whether his Honour fell into error in finding, as he did, that Ms Wood had been in the kitchen, yelling at Ben Salt as he was being assaulted by Mr Bell and Mr Gruevski. His Honour based that finding upon Ben Salt’s account as set out in his deposition. Mr Leckie’s account did not support Ben Salt in that regard.
For our part, we consider that even if Ms Wood had been in the kitchen, and had been yelling out as Ben Salt was being attacked, that would hardly have amounted to a major aggravating factor. She was, after all, fully complicit in both the aggravated burglary, and the common assault to which she pleaded guilty. The rest was simply a gloss, of marginal significance.
It is also unnecessary to rule upon the alleged threat made by Ms Wood to Mitchell Salt. The entire exercise, of dealing with that allegation, seems to have been somewhat derailed by virtue of the prosecution’s withdrawal of the suggestion, originally contained in the opening, that she was party to the almost identical threat made by Mr Bell and Mr Gruevski to Ben Salt.
Once that allegation was withdrawn, as against Ms Wood, it is easily understandable why her counsel might have assumed that it was not being pressed against her, at least insofar as it was to be found in Mitchell Salt’s deposition. No mention was made in the prosecution opening of any such threat made to Mitchell Salt. It seems that the judge, because he approached the matter in his usual meticulous manner, read each of the depositions closely, and saw fit to incorporate that small part of Mitchell Salt’s statement into his sentencing remarks.
Counsel for Ms Wood sought to elevate this point into a complaint of denial of procedural fairness. We think that gives the matter more credence than it warrants. On any view, it could not have been a major aggravating feature so far as Ms Wood was concerned. After all, it was common ground that she had expressed regret at the fact that they had come to the house at all. The addition of any ‘warning’ of the kind described, assuming that is a proper characterisation of what was said in the context, would hardly have made any real difference to the sentence imposed upon Ms Wood.
There is more substance to the challenge regarding the so-called third finding regarding her having walked ‘like she was the boss’. If indeed the judge’s recitation of what Mr Leckie had said could be regarded as the basis for a finding that Ms Wood was the main instigator and ‘boss’ of the entire criminal enterprise, the passing reference to her appearance as she walked could hardly form the basis of any such conclusion.
In truth, Mr Leckie’s opinion regarding how Ms Wood appeared, whether by walking or otherwise, was of no probative value at all without a proper explanation as to what his observation was based upon. Had objection been taken to that portion of Mr Leckie’s statement,[9] there could never have been any finding, tacit or otherwise, as to her elevated role in this aggravated burglary.
[9]Or had his Honour made it clear that he proposed to rely upon it as the basis for a finding that Ms Wood was indeed ‘the boss’.
Returning then to ground 1, the respondent noted in its written case that a question of undue disparity must depend upon whether it ‘was “reasonably open” to the judge’ to differentiate between offenders in the way that he or she had done.
It was submitted, and it is trite law, that ‘equal justice does not require the same sentence to be imposed for the same offence’. The judge must have regard to the circumstances surrounding the commission of that offence, including the particular role played by each individual offender. The judge must also have regard to the personal circumstances of the offenders in question. It is only when sentences imposed on co-offenders give rise to a ‘justified’, or ‘legitimate’ sense of grievance, that a challenge of this kind can succeed.
The judge in the present case noted that Ms Wood had directed the co-offenders to Ben Salt’s house, with full knowledge of the fact that he was to be assaulted. She watched the three men enter the house. She subsequently joined them, playing the indispensable role of identifying Ben Salt as the person to be assaulted. She then intentionally assisted and encouraged Mr Bell and Mr Gruevski to assault Ben Salt, for a second time as it happened, in the kitchen. She also, on the judge’s findings, threatened Mitchell Salt that, should he go to the authorities, her co-offenders would return with a gun.
It is tolerably clear that the judge considered Mr Yates to have played a significantly lesser role than that of Ms Wood. In essence, Mr Yates’ task, once inside the house, was merely to ensure that Mitchell Salt remained in his bedroom. In terms of any assault upon Ben Salt, Mr Yates had done no more than push him.
The respondent also submitted that Ms Wood’s moral culpability was greater than that of Mr Yates. It was acknowledged that neither Ms Wood nor Mr Yates had any prior convictions, and that upon arrest, both had made full admissions. They had each entered an early plea, although Mr Yates’ plea had been offered sooner than that of Ms Wood.
In addition, it was Mr Yates who was the primary carer for the twin boys born to Ms Wood and himself. She had relinquished custody of the children in early 2017. Moreover, Mr Yates had been in steady employment for some three years.
Finally, the judge found that Mr Yates had good prospects of rehabilitation.[10] Accordingly, specific deterrence had ‘little role to play’ in the exercise of the sentencing discretion in his case.[11] On the other hand, his Honour was unable to express a concluded view as to Ms Wood’s prospects, given that these were dependent upon her abstaining from alcohol.[12]
[10]Reasons [43].
[11]Ibid [46].
[12]Ibid [61].
Accordingly, the respondent submitted, the disparity in sentence between Ms Wood and Mr Yates was readily explicable, and reasonably open to the judge.
With regard to the disparity between Ms Wood and Mr Gruevski, the respondent conceded that his role in the offending was significantly greater than hers. After entering the house, Mr Gruevski twice punched Ben Salt in the face. He was also directly involved in the scuffle involving Mr Bell and Mr Leckie. He punched Mr Leckie in the face. It was only after that assault upon Mr Leckie, that Ms Wood first entered the house.
In addition, it was Mr Gruevski, together with Mr Bell, who told Ben Salt and Mr Leckie not to report the matter to police, or they (Mr Gruevski and Mr Bell) would return with guns. Ms Wood was not party to that threat.
The respondent acknowledged that Ms Wood had no prior convictions, whereas Mr Gruevski had a lengthy criminal history. He had been dealt with in the past in relation to 48 separate charges, over the course of 12 court appearances between 2006 and mid-2017. That offending included charges of violence, driving matters, weapon-related offences and various breaches of intervention orders.
The principles governing a ground of undue disparity (or in the case of Mr Bell, inadequate disparity), are well established. The High Court has spoken on this subject on a number of occasions, as has this Court.
As a general proposition, when sentencing co-offenders, a judge should strive to avoid unjustifiable disparity. Self-evidently, any significant disparity should be capable of a rational explanation. For a disparity to be unjustifiable, it must be such as not to be explicable by differences between co-offenders, or the nature of their offending.
This Court may intervene on the ground of undue disparity, in circumstances where the challenged sentence, standing alone, may ordinarily be regarded as within range. The test is whether the disproportion between the sentences is manifestly excessive, and gives rise to a legitimate or justifiable sense of grievance. The disparity must be marked, or clearly unjustifiable.[13]
[13]See generally Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Ryan v The Queen [2016] VSCA 255; Collins v The Queen [2015] VSCA 106.
In Hilder v The Queen,[14] Maxwell ACJ made it clear that the test for undue disparity is a stringent one. His Honour said:
Where a judge has carefully considered all of the relevant sentencing considerations applicable to the respective co-offenders, a ground of parity will rarely succeed. In those circumstances it will be necessary for an appellant to show that, despite the sentencing task having been carefully and conscientiously carried out, nevertheless, the conclusion as to differentiation is so obviously wrong that this Court is constrained to conclude that the sentencing discretion miscarried as a matter of law.[15]
[14][2011] VSCA 192.
[15]Ibid [39].
Notwithstanding admonitions of this kind, we are of the view that in the unusual circumstances of this case, Ms Wood has a justifiable sense of grievance.
Dealing first with a comparison between Ms Wood’s sentence, and that of Mr Yates, it is clear that there are some factors operating in favour of leniency for him, which were not available to Ms Wood. The respondent, in its careful submissions, has identified these.
Yet, it cannot be ignored that Mr Yates entered the house well before Ms Wood. He took part in the initial assault upon Ben Salt, in company with both Mr Bell and Mr Gruevski. He was also complicit in the subsequent assault upon both Ben Salt and Mr Leckie, having been party to a concerted agreement to commit an aggravated burglary in order to gain revenge for what Ben Salt had done to Brittany. He may not have been physically in the kitchen when the later attack took place, but that counts for very little in the broad scheme of things, when dealing with acting in concert.
Mr Yates is also several years older than Ms Wood. As indicated, he committed four separate offences, as distinct from Ms Wood’s two. One of those offences was that of recklessly causing injury, always a serious matter. He was treated leniently, receiving only a three-month sentence for that offence, none of which was cumulated upon his sentence for aggravated burglary.
For our part, we find it difficult to see how Ms Wood could justifiably have received a longer total effective sentence than Mr Yates. On no view did she warrant an extra seven months upon the total effective sentence that he received. Nor should she have been given an extra four months by way of her non-parole period.
Our conclusion in that regard is of course fortified, to some degree, by what we have said about the judge seemingly having taken into account the somewhat obscure statement by Mr Leckie that Ms Wood ‘was walking like she was the boss running the whole thing’.
Ms Wood’s complaint of undue disparity is, if anything, stronger in relation to Mr Gruevski. There was only one factor in his favour, so far as sentence was concerned, which differentiated him from Ms Wood. That was his acquired brain injury and his IQ of 59. The sentencing judge was correct in stating that this ‘impact[ed] upon [his] moral culpability’ and had the result that ‘general and specific deterrence should be sensibly moderated’ in his case.[16] The extent to which the overall sentence should have been moderated is, however, another matter. Of course, that is a very low IQ. ‘Sensible moderation’ in a case of this kind, where the nature of the offending involves thuggish behaviour, and requires no great intellect, does not lead to the conclusion that a sentence less than half the length of that which Ms Wood received, was appropriate.
[16]DPP v Gruevski [2018] VCC 798 [42].
Mr Gruevski’s extensive criminal history must surely have warranted his receiving a sentence significantly in excess of that imposed upon Ms Wood. So too, would the extent of his involvement in the commission of these offences. He was sentenced some months after Ms Wood (albeit by the same judge), but she is nonetheless entitled now to feel a deep seated and entirely legitimate sense of grievance about her treatment, as compared with his.
Finally, on the issue of parity, we consider that Ms Wood should have received a much lighter sentence than did Mr Bell. It is true that she ended up with a lower total effective sentence than he did, though we note that their respective non-parole periods were only 11 months apart. Mr Bell was far more culpable than Ms Wood, in every sense of that term. It was he, after all, who unbeknown to the others, armed himself with a metal pole intending to use it. Again, on the issue of parity, she has a justifiable sense of grievance.
Accordingly, ground 1, and to the extent that it is necessary to have regard to it, ground 2, must succeed. We would grant leave on these grounds, and allow Ms Wood’s appeal on that basis.
Ground 3 — manifest excess
Finally, for the sake of completeness, we would say that Ms Wood’s claim that this sentence was manifestly excessive, must fail. It might be thought that a sentence of three years and two months for this offending was stern for someone of previous good character. However, a confrontational aggravated burglary, carried out in order to assault an occupant of the house, and carried out for vigilante purposes, must be viewed as a very serious offence. The individual sentences on charges 1 and 2 were within range. Had it not been for the parity issue, we would not have intervened in favour of Ms Wood.
Mr Bell’s application
Mr Bell has only one proposed ground of appeal, namely manifest excess. Despite the well-constructed and careful submissions put forward on his behalf by his counsel, we consider Mr Bell’s sentence to have been clearly within range.
On any view, Mr Bell was the instigator of this offending. He also played the main role in what took place within the house after the co-offenders had entered. As we have said, it was he who armed himself with a metal pole, intending, it would seem, to use it in his revenge attack upon Ben Salt. It was Mr Bell who reached for and was prepared to use the steak knife in the assault in which he was engaged. In addition, it was Mr Bell who, with Mr Gruevski, attacked Mr Leckie. Ms Wood had nothing to do with that separate incident.
The sentencing judge dealt with Mr Bell in a manner that we consider to have been unimpeachable. In his case, we would refuse leave to appeal.
Orders
In relation to Ms Wood, leave to appeal against sentence will be granted. The appeal will be allowed, and she will be re-sentenced as follows.
Charge Offence Maximum Sentence Cumulation 2 Aggravated burglary 25 years 2 years and 6 months Base 4 Assault
[Common law]5 years 3 months 1 month Total Effective Sentence: 2 years and 7 months Non-Parole Period 15 months S 6AAA declaration pursuant to Sentencing Act: 4 years with a non-parole period of 2 years
In relation to Mr Bell, leave to appeal against sentence will be refused.
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