Lahni Wood v The Queen - [2019] VSCA 39

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSCA 39
Decision Date: 6 March 2019

CaseChat Overview and Summary

The appellant, Lahni Wood, appealed against the sentence imposed by the trial judge, arguing that it was manifestly excessive and that there was an undue disparity between her sentence and that of her co-offenders. The case was heard in the Court of Appeal. Wood had participated in a vigilante attack with three others, charged with aggravated burglary and common law assault. Wood's role was primarily, though not exclusively, as the navigator.

The legal issues before the court were whether there was an error in the assessment of Wood's role in the offending, whether the sentence imposed was manifestly excessive, and whether there was an undue disparity in the sentences of the co-offenders. The court examined the totality of Wood's role, including her participation in the planning and execution of the attack, and her role as the navigator. The court also considered the principle of parity in sentencing and whether the sentence imposed was within the appropriate range.

The court found that there was no error in the assessment of Wood's role in the offending, but that the sentence imposed was excessive and there was an undue disparity between her sentence and that of her co-offenders. The court acknowledged that Wood had a justifiable sense of grievance, but held that the sentence of 3 years and 2 months' imprisonment was not manifestly excessive. However, to achieve appropriate parity and to bring the sentence into line with that of her co-offender, the court allowed the appeal and resentenced Wood to 2 years and 7 months' imprisonment. The court refused the application of the co-offender, Bell, who argued that his sentence of 4 years and 5 months' imprisonment was manifestly excessive, holding that it was within the appropriate range.

The court ordered that Wood be resentenced to 2 years and 7 months' imprisonment, to be served from the date of her original sentencing. The court also ordered that the appeal of Bell be dismissed, and that he continue to serve his original sentence.

Orders