STATE OF TASMANIA v SAMUEL DAVID PENNICOTT 21 DECEMBER 2023
COMMENTS ON PASSING SENTENCE PORTER AJ
Samuel Pennicott, the defendant, has pleaded guilty to the crimes of aggravated burglary, wounding and assault. These charges arose out of what is commonly called “a home invasion” incident at a house in Glenorchy on 29 September 2020. The complainant is Jamie Edgar. At about 8.30pm on that date, Mr Edgar was at home sitting in his living room when he heard banging on his front door. When he asked who was there a male voice said that it was the police. The banging continued. Mr Edgar was not persuaded that it was police and one of the people outside yelled words to the effect of “You know who it is”. Mr Edgar went back to the lounge room to retrieve his phone but then heard his door break open. This defendant, a woman alleged to be Lilli Asprey and one other male person went inside. One of the other two offenders, most likely the other male, was carrying a .22 calibre pump action rifle. What follows in terms of the defendant’s involvement is not in dispute. The other two offenders confronted Mr Edgar in the kitchen and demanded money and drugs. Apparently they had reason to think they might find either or both. Mr Edgar told them that he had neither. He was then pushed into the lounge room and into a chair where the male offender struck him to the head a number of times with the stock of the rifle, while at the same time Asprey was hitting him with a broom which she had found in the home. The defendant did not strike any blows. During the assault Mr Edgar was trying to protect himself with both his arms and feet but was unable to do so, and at one point was close to loosing consciousness. He could feel blood running down his head and was asking the offenders to stop hitting him, saying that there was blood everywhere. He was indeed freely bleeding from various parts of his head and from his nose at that time. During the assault when Mr Edgar was struck with a firearm, the male offender was holding the gun by its barrel as if holding a baseball bat. As a result of the firearm being used in this way, the stock broke off and split in half. One half remained on the floor and was later recovered by police. The complainant was not hit again with the firearm after it broke but Asprey continued to hit with him with the broom. Shortly after, the offenders left and drove away in a car. Police attended the scene. Mr Edgar was able to provide some particulars of Asprey, but only able to give a broad description of the clothing worn by the others. Police found some items in the house which later yielded incriminating DNA results. Shortly after the offenders left, police received a call that a vehicle had crashed into a house in Derwent Park. Police established that Asprey, this defendant, a Ryan Bester and another male had been in the car. The males had fled leaving Asprey behind. She was found standing near the vehicle and she matched the description provided by Mr Edgar. When police looked inside the vehicle they saw a firearm with a broken stock behind the driver’s seat. She was arrested. Later, the defendant was apprehended by police having trespassed on a property in Moonah. When spoken to he gave a false name. He was taken to the police station where his true identity was discovered. Bester and the other man were located. When interviewed, the defendant said that he had gone to Bester’s house earlier in the day and had taken nine tablets of a benzodiazepine. He denied committing a burglary and made no comment about whether he had been at Mr Edgar’s house. This defendant, Asprey and Bester were charged. Despite some apparently incriminating evidence in the form of a white jacket with an effective DNA match to Bester and the complainant’s blood on it being found, Bester was discharged from the proceedings. Asprey failed to appear in this Court in November last year and a warrant was issued for her arrest. That is yet to be executed. The injuries suffered by Mr Edgar include three lacerations to areas of his head, a six centimetre one to the forehead and two four centimetre ones to the left temporal area and the parietal region. There was a two centimetre laceration to the left elbow together with bruising and hematoma to the left lower eye socket, bruising to and bleeding from the nose, and tenderness and bruising to the left hand and foot. Photographs taken shortly after the event show a very bloodied and battered complainant. I have a victim impact statement from Mr Edgar dated 20 December 2023. He says that he had always felt safe in his own home. He feared for his life when the offenders broke in; he did not know what they wanted or why they were there. He had nothing to give them. He describes the 14 staples required to fix the laceration on his head and he says that the injuries generally took about two to three weeks to heal. After the attack he stayed with a friend for about six weeks because he did not want to stay on his own. He avoided seeing his daughter until his physical injuries had healed. He feels he is now hypervigilant and struggles with the effect the events have had on him. He now has a general sense of anxiety.
The defendant is now 28; he was 24, nearly 25 at the time of this offending. He has a lengthy record going back to August 2012 in the Youth Justice Court when he was dealt with for aggravated burglary and stealing. He has a considerable record of offending, mostly relating to dishonesty and drug matters. He has been the subject of a range of sentencing options as an adult. In February 2016 in this Court, he was convicted of aggravated burglary, stealing, motor vehicle stealing and driving whilst disqualified and sentenced to seven months imprisonment which was backdated. He was made the subject of an order requiring supervision by a probation officer and educational and rehabilitative programs. In May 2017 he was sentenced to twelve months’ imprisonment by way of sentence and re-sentence for offences of dishonesty, assaults, anti-authority matters and bail offending. Further similar offending occurred, leading to actual imprisonment of about six months and suspended terms in May 2019. Of particular significance is that in August 2020, again by way of sentence and re-sentence for mostly bail offences, a 16 week gaol term was imposed. As best can be ascertained from the records, taking into account the backdating he must have been released very shortly before this present offending. In May 2021, for an offence of assault after this offending and for other matters of dishonesty and driving offending and breaches of bail, he was sentenced to a total of ten months’ imprisonment with some other punitive orders. An important fact is that the defendant has spent two distinct and lengthy periods in custody on this matter, the total to date being two years, four months and 18 days. That is net of the term of imprisonment which was imposed. He has been in custody solely on this matter since 6 December 2021. I know little of his personal circumstances. He has a partner and two young children, the youngest of whom was born while he was in custody. His mother remains supportive and proposes to live with her when released. It is quite clear from his history of offending that drug abuse has been a prominent issue in his life. His counsel’s submissions focussed on the level of the defendant’s involvement, the subsequent delays before the matter could be finally resolved and the conditions of his time in gaol. As to his role, as I have noted, is not in dispute that the defendant did not actually make any demands of Mr Edgar nor strike any blows. It was put, without dissent, that he had gone to the house with intention of getting in meaning to steal, not to assault the occupant, and that he was not aware of the firearm until immediately before they went into the house. It was also put that the defendant did not know Mr Edgar, while the other two defendants did, and that he had little time to consider what was going to happen when he realised the presence of the firearm. I accept those matters and I accept that the incident inside the house was of short duration. His admitted and accepted involvement, in my view, makes him guilty of the wounding and assault by way of s 4 of the Criminal Code. The unlawful common purpose was illegal entry into the house with the intention to steal and to confront any occupant if necessary. One of the group was carrying an offensive weapon, by any description. It would be a probable consequence of the prosecution of that purpose that an occupant was wounded and assaulted. In any event, he is guilty of those crimes as an abettor, and little turns on the distinction in terms of the sentencing outcome. As to his state of mind in relation to the crime of wounding, I cannot be satisfied beyond reasonable doubt that he intended that the others wound Mr Edgar, and must accept that his state of mind was one of recklessness. Part of the reason for the delay in the resolution of this matter is the complainant being unwilling to cooperate and being difficult to contact. The case was listed for trial over 12 months ago. The indictment as it then stood had, as a second count, an allegation of a crime under s 170 of the Criminal Code. The defendant’s then counsel put a proposal which involved pleas of guilty to the first count and to wounding in lieu of the s 170 crime. This was accepted by the State but on a conditional basis not acceptable to the defence. The matter was again listed for trial in October and November 2023. Further negotiations finally produced the present outcome. Accordingly, although not early pleas of guilty in the strict sense, they may be taken as having been entered at an early opportunity given the charges originally faced. During the defendant’s time in prison he has been the subject of significant lock down measures for various reasons. In short, it has been a very difficult time for him. He has suffered from issues relating to prison overcrowding, lack of proper staffing levels, lack of health care services and assistance in relation to drug and alcohol counselling. Through no fault of his own he has spent periods in solitary confinement, sometimes only having relief for one hour a day. Over a year ago he requested access to drug counselling services with no response. I do not repeat these things to be critical but these are facts are put without challenge. Taking everything into account a sentence of imprisonment is called for. This was a serious incursion and an attack on a man in his own home to which the defendant was a party. The use of weapons is an aggravating factor. The complainant was injured and it was fortunate that he was not more seriously injured. The effects on him have been significant. My task is to fix a term that is appropriate. That will be less than the time actually spent in gaol on this matter but to do otherwise would be artificial.
Mr Pennicott, I have set out the facts as I see them to be, your personal circumstances and the relevant sentencing considerations. These lawless “home invasion” type attacks involving more than one offender are unfortunately not uncommon and often, as in this case, involve armed offenders using gratuitous violence in search of money and drugs. People are entitled to feel safe at all times; particularly within their own home. This sort of criminal conduct needs to be very strongly condemned. That factor together with attempting to deter others from that conduct are very important sentencing considerations. Trying to deter you from further offending is also important. You have a poor record for a person of your age and nothing seems to have prevented you from persistent offending. You have relevant prior convictions in the form of aggravated burglary. You have now spent a considerable period in goal waiting for this matter to be resolved, much of it spent in onerous conditions. You have a young family and it is to be hoped that you see the sense in a law abiding life, and in being there for them, and find the will to behave. You are convicted of the crimes on the indictment and sentenced to two years’ imprisonment. That will commence on 6 December 2021. Ordinarily some consideration of parole would have been necessary but the fact is that you have served the full term. As far as this Court has been made aware, you are now free to go.