R v Pennell; R v Rankin [2007] VSCA 225

2 I also agree with Curtain AJA that the applications for leave to appeal and the appeals should be allowed and that the appellants should be re-sentenced as she proposes.

3 I add that, having regard to the severity of the appellants' attack on the victim, the sentences to be imposed on the appellants may be viewed as lenient. It is only because of their relative youth and their lack of prior offences of a violent nature that I am persuaded that such a degree of leniency is warranted in the circumstances of this case.**

4 Jason Woolstencroft lived alone on a rural property at Scotts Creek. Andrew Rankin, who had known him for years, considered him to be a pest. On the night of 5 July 2005, Rankin and Cody Clark, who also knew Woolstencroft and it appears also disliked him, drove to Camperdown and by chance, met up with Matthew Condie and Aaron Pennell. Condie and Pennell did not know Jason Woolstencroft. All four men went to the home of a mutual friend and over a period of some four hours, all except Clark, because he was driving, drank a considerable amount of alcohol. It was decided to return to Rankin's house, which was also at Scotts Creek. En route, the topic of assaulting Woolstencroft was raised and that he deserved a hiding. All four then proceeded to drive to the victim's home.

**5 Clark remained in the car whilst the others went inside the house and, finding the victim asleep, Pennell dragged him out of his bed, tearing his shirt from him in the process, whilst at the same time punching him to the head and body. The victim was then forced from the house and placed in the rear of the station wagon. Pennell got in the back with him to ensure that he did not escape and Rankin and Condie sat in the rear seat. Whilst Clark drove to a remote location, the victim was punched in the head by Rankin, Pennell and Condie.

6 Once the car came to a stop, the victim was dragged from it and taken further into the bush a distance of some 50 to 100 metres. On the way, tree branches, said to be as thick as a person's arm and a cow bone were collected and then used to strike the victim to the back and upper body. The blows felled him to the ground and were of such force that the branches broke on impact. Clark, the driver, turned the headlights on so as to illuminate the scene and then all four co-offenders, to varying degrees, kicked, punched and bashed the victim as he lay on the ground. Such was the victim's ordeal that he pleaded with the attackers to kill him. The assault endured for approximately 30 minutes and was of such ferocity that, from time to time, the assailants took respite from it. The victim was told he was going to be killed and that he was lucky that they did not have a shovel with them.

7 A decision was made to return to the victim's house and the victim was forced back into the station wagon where he was again punched to the head and body. En route it was necessary to pass through an electrified gate. The car was stopped and Woolstencroft was taken from it. Rankin then applied the electrified fence wire to him, sending a current through his body. The victim, on his account, suffered some eight to ten shocks. He was then returned to the car and taken back to his home. Once again, Clark remained in the car whilst the three other co-offenders and the victim went inside. At one point, Pennell left the house and eventually drove off on the victim's motorbike. Condie went outside and returned with a double-sided axe and struck the victim twice with it. Rankin and Condie then left the house, departing the scene in the station wagon driven by Clark. On the way out, they passed Pennell on the motorbike at the top of the driveway. At some point in the whole episode, Rankin struck the victim to the head with a bottle and threatened to slash his throat.

8 The victim was left in the house badly beaten, bruised, cut and bleeding. He had no telephone so he could not summon aid. He attempted to stem the flow of blood and went to bed, where he was found by a neighbour at 9.00 am and taken to hospital. Upon admission, the victim presented with his right eye partially opened, his left eye completely swollen and shut, multiple bruises and abrasions over his chest, abdomen, arm and back and lacerations to his leg and knee. X-rays suggested a small laceration to the right kidney and swelling to the brain which, it is said, took a week to subside. Mr Woolstencroft was described as being in a critical condition, but the injuries were not life-threatening and eventually he made a full physical recovery. He does, however, require medical check-ups and at the time of sentencing was said to suffer from the emotional and psychological effects of the assault.

9 Ultimately, all four offenders pleaded guilty to the following offences and were sentenced as follows:

Aaron Pennell: Count 1, aggravated burglary, 5 years

Count 3, intentionally causing serious injury, 8 years

Orders for partial cumulation resulted in a total effective sentence of 9½ years' imprisonment with a non-parole period of 6½ years.

Andrew Rankin: Count 1, aggravated burglary, 5 years

Count 3, intentionally causing serious injury, 8 years

Count 7, threat to inflict serious injury, 1 year**

With orders for partial cumulation, a total effective sentence of 10 years' imprisonment with a non-parole period of 7 years was ordered.

**Matthew Condie: Count 1, aggravated burglary, 4½ years

Count 4, intentionally causing serious injury, 7 years

Count 5, intentionally causing serious injury, 9 years

With orders for partial cumulation, a total effective sentence of 12 years' imprisonment with a non-parole period of 8 years was ordered.

Cody Clark: Aggravated burglary, false imprisonment, intentionally cause serious injury and criminal damage, ordered to be detained in a youth training centre for 3 years.

10 Aaron Pennell and Andrew Rankin now appeal against their sentences.

11 It is only necessary to consider the first ground in respect of Mr Rankin's appeal, that is, that the learned sentencing Judge erred in sentencing the appellant as a serious violent offender in respect of count 7 on the presentment.

12 Count 7 relates to the offence of making a threat to inflict serious injury pursuant to s 21 of the Crimes Act 1958. It is not a serious violent offence according to Schedule 1, clause 3 of the Crimes Act 1958 and accordingly, the appellant was not to be sentenced as a serious violent offender in respect of this count. The learned sentencing judge was told that it was such an offence and a table to that effect was submitted to him by the prosecutor during the course of the plea. The Crown concedes now that that submission was wrong, but argues that it did not lead the learned sentencing judge into error and that if it did, it was not a material error which would vitiate the sentences imposed. I do not accept that submission.

13 The appellant qualified as a serious violent offender by reason of the conviction and sentence imposed in respect of count 3, intentionally causing serious injury. He therefore fell to be sentenced as a serious offender in respect of counts 3 and 5 on the presentment, that of intentionally causing serious injury and making a threat to kill. When sentencing a serious violent offender for a relevant offence, the learned sentencing judge must regard the protection of the community as the principal purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the offence considered, in light of its objective circumstances.

14 His Honour, a very experienced judge, must be taken to have acted upon the submissions of the Crown in this regard and in conformity with the provisions of the Sentencing Act 1991. Certainly, his sentencing remarks indicate that he was cognisant of the applicable principles and sought to apply them. Although he did not express the protection of the community as the principal purpose for which the sentence was imposed, his remarks indicated that he was alive to that consideration and he expressly turned his mind to his discretion pursuant to s 6D(2) of the Sentencing Act 1991 and acted upon it. There is nothing in the sentencing remarks to suggest that his Honour did not act upon the Crown's submissions in respect of count 7. His Honour imposed a sentence of one year in respect of it, six months of which he ordered to be served cumulatively. Such order for cumulation suggests that his Honour must have turned his mind to the provisions of s 6C of the Sentencing Act 1991 consistently with sentencing the appellant as a serious violent offender.

15 In these circumstances, I am satisfied that the learned sentencing judge was led into error and because different sentencing considerations apply to the sentencing of serious violent offenders, this must be seen to be a material error and as such it vitiates the sentences imposed upon the appellant. Thus, it re-opens the sentencing discretion and falls to this Court to re-sentence him. The Crown conceded that if the Court came to that view, then the sentences imposed upon Mr Pennell must also be set aside and the sentencing discretion in his case reopened so as to address questions of parity.

16 Having come to the view that his Honour, in sentencing the appellant as a serious violent offender in respect of count 7, was in error, it is not then necessary to consider further the other grounds argued by each of the appellants.

17 Accordingly, it falls for the Court to re-sentence both the appellants.**

**18 Mr Rankin was 21 at the time of the offences and was 22 at the time he was first sentenced. He is now 24 years old. As such, he is to be sentenced as a youthful offender. Mr Rankin has a modest prior criminal history which does not include convictions for violence. He has pleaded guilty, admitted his involvement in these offences in his record of interview, expressed his remorse for his offending conduct and taken significant steps towards his rehabilitation whilst in prison, including abstaining from illicit substances. In sentencing the appellant I take into account all matters personal to him which go in his favour.

19 In convicting and sentencing the appellant in respect of counts 3 and 5, the appellant falls to be sentenced as a serious violent offender. I consider that a sentence of imprisonment is justified in respect of those counts and in fixing the appropriate sentence I must and do have regard to the protection of the community from the offender as the principal purpose for which the sentence is imposed. However, I do not propose to exercise the discretion to impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances because I am of the view that the sentence imposed will serve to protect the community from the appellant. Accordingly, without in any way diminishing the nature and gravity of the offences here committed, which His Honour quite properly described as an "unrelenting, brutal and cowardly attack", the appellant is convicted and sentenced as follows:

Count 3, intentionally causing serious injury - 6 years

Count 7, threat to inflict serious injury - 3 months

20 Pursuant to s 6E of the Sentencing Act 1991, I otherwise order that the sentence on count 5 be served concurrently with the sentence on count 3 and in order to address the totality of the appellant's criminality, I propose to order that 12 months of the sentence imposed in respect of count 1, be served cumulatively with the sentences imposed on count 3, that is a total effective sentence of 7 years.

21 I am satisfied that by reason of the appellant's age and the steps that he has taken towards his rehabilitation, his further rehabilitation would be enhanced by a lengthy period on parole. Accordingly, I propose to order that he serve a period of 4½ years before becoming eligible for parole and I declare that the appellant has already served by way of pre-sentence detention a period of 832 days.**

**22 Counsel on behalf of Mr Pennell, submitted that he should receive a different sentence from that imposed upon Mr Rankin because his role was somewhat less. Mr Pennell did not apply the electrified wire to the victim as Mr Rankin admitted he did and Mr Pennell did not strike the victim with the tree branches. Whilst that may be so, he was nonetheless actively involved in it. Indeed, he may be said to have instigated the assault by pulling the victim out of his bed with such force that it tore his shirt from his body. He then offered to break the victim's arm whilst holding it behind his back and in the car he got into the rear of the station wagon with him so as to prevent him getting away. He assaulted him on the journey to the bushland whilst out in the scrub and was a party to the various assaults on the return journey. In these circumstances and especially where Mr Pennell did not know the victim and therefore could have no reason to engage in such conduct other than to offer gratuitous violence, even allowing for whatever steps Mr Pennell took to countermand the attack, I am of the view that his lesser role, such as it was, does not mitigate his culpability for the offences here committed.

23 In sentencing Mr Pennell I take into account his pleas of guilty, his age at the time of the offending and now and that he is to be sentenced as a youthful offender. Although Mr Pennell has a significant prior criminal history which includes six prior convictions for burglary, he does not have any convictions for offences of violence. I take into account also that he made admissions to the police in his record of interview, that he has expressed his remorse for his conduct and that he has taken steps towards his rehabilitation whilst in custody.

24 In convicting and sentencing the appellant in respect of counts 3 and 5, the appellant falls to be sentenced as a serious violent offender. As I consider that such a sentence of imprisonment is justified in respect of those counts, in fixing the appropriate sentence I must and do have regard to the protection of the community from the offender as the principal purpose for which the sentence is imposed. However, I do not propose to exercise the discretion to impose a sentence longer than that which is proportionate to the gravity of the offence, considered in light of its objective circumstances, because I am of the view that the sentences to be imposed will serve to protect the community from the appellant.

25 Accordingly, Mr Pennell is convicted and sentenced as follows:

Count 3, intentionally causing serious injury - 6 years

26 Pursuant to s 6E of the Sentencing Act 1991 I otherwise order that the sentences on count 5 be served concurrently with the sentence on count 3 and in order to address the totality of the appellant's criminality I propose to order that 12 months of the sentence imposed in respect of count 1 be served cumulatively with the sentence on count 3, that is a total effective sentence of 7 years.

27 I am satisfied that by reason of the appellant's age and the steps he has taken towards rehabilitation that he would benefit from a lengthy period on parole and accordingly, I propose to order that he serve a period of 4½ years before becoming eligible for parole and I declare that he has already served by way of pre-sentence detention a period of 832 days.

28 That each of the appellants have been sentenced as serious offenders in respect of the relevant offences is to be entered into the records of the Court pursuant to s 6F of the Sentencing Act 1991.