Director of Public Prosecutions v Netherwood

[2018] VCC 1951

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT WODONGA
CRIMINAL JURISDICTION

CR 18-02027

DIRECTOR OF PUBLIC PROSECUTIONS

v

BILLY NETHERWOOD

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wodonga
DATE OF HEARING:
DATE OF SENTENCE:	22 November 2018
CASE MAY BE CITED AS:	DPP v Netherwood
MEDIUM NEUTRAL CITATION:	[2018] VCC 1951

REASONS FOR SENTENCE
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Subject:
Catchwords: causing serious injury intentionally sentence
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Mr M. Page

HER HONOUR:

1Billy John Netherwood, you have pleaded guilty before me to one charge of causing serious injury intentionally.

2The circumstances of this offending are set out in the prosecution opening which was filed on the plea.  I have taken into account the contents of that document in sentencing you today but I will not repeat all of the matters contained within it.

3In brief, the incident for which you are being sentenced occurred on 2 July of this year at your mother's house.  Your victim was your brother, Mark, who is three years younger than you.  As I understand it from the prosecution opening, both you and your brother had been drinking alcohol to excess immediately prior to this incident and you became involved in a heated argument with him.

4This intense arguing behaviour between yourself and your brother, Mark, was quite common.  It occurred on this occasion in the presence of other family members.  I accept that your brother had started to bait you unmercifully.  You reacted by taking his bicycle.  When he continued to bait you, you suddenly walked into the kitchen, grabbed a large kitchen knife from the drawer and attacked your brother with it.

5At that point, you appeared to have been motivated by a fierce rage against him.  Your brother tried to escape from you but you continued to attack him until you were restrained by another family member who was in the house.

6As a result of that sustained attack, Mr Netherwood, your brother sustained five serious stab wounds to his body.  He also sustained a punctured lung and lacerations to his spleen and diaphragm.  It was very lucky for your victim and for yourself that he was not killed in the attack. Fortunately and not, as I far as I can see, through any foresight by you, the knife appears to have missed vital parts of his body.

7You were arrested on the same evening, having waited in the kitchen for the police to come.  Although you made a no-comment interview, you pleaded guilty prior to the committal and the matter proceeded by way of a hand-up brief without the cross-examination of any witnesses; clearly at the very earliest stage of which your plea of guilty could be taken.

8It is therefore clear that your plea of guilty is an early plea and you deserve credit for having acknowledged your responsibility for this attack so soon.

9I accept that by your guilty plea, you have saved the community the time and cost of a committal and a trial and you have avoided the need for your brother to give evidence at the committal or for other members of your family to do the same.

10I accept that in your case, your plea of guilty indicates a willingness to facilitate the course of justice and I do accept that the plea also shows remorse.  I heard other evidence today that you are very remorseful for your actions and I accept that this is so.

11Mr Netherwood, the maximum penalty for causing serious injury intentionally is 20 years' imprisonment.  This was a frightening and potentially lethal attack on an unarmed man.  There was no reason for the attack apart from a mutual antagonism between your brother and yourself and his baiting of you.

12Mr Netherwood, you have several prior convictions.  The first is a conviction in 1995 for cultivating cannabis.  I propose to ignore that completely for the purpose of sentencing you today.  Second is a conviction in December 2015 for offensive behaviour which I am told arose out of a dispute with your brother.  It has significance only as to indicate that you have had a longstanding history of disagreement with your brother.

13The most significant prior conviction is a conviction at the Wodonga Magistrates' Court in April of 2015 for aggravated burglary, theft and attempted theft from a motor vehicle.  Aggravated burglary is a very serious offence.  However, I accept from your counsel that on that occasion, you acted as the getaway driver for others who participated in the aggravated burglary.  That is, you did not enter the premises but were jointly, and very properly,  charged with those who had.

14On that occasion, you were convicted and placed on a 12-month community corrections order with supervision, treatment and rehabilitation conditions to address your alcohol abuse.  I accept the submission of your counsel that the seriousness overall of that offending is to be judged in the context of the fact that you were given a community corrections order for that offending and I note also that you completed the conditions, supervision and the other conditions of the order without incident.

15In sentencing you today, Mr Netherwood, I need to take into account the principles of general deterrence and denunciation. I will say something further about those concepts later on but I will just repeat here that your attack on your brother was vicious.  You commenced stabbing him whilst he was seated on the couch.  He may have verbally abused you but he did not appear to have shown any physical aggression towards you prior to that attack.

16Even when he fell to the floor in an attempt to escape, you stabbed him again whilst you were standing over him and as I have indicated, you inflicted five stab wounds to his body and were only stopped when you were physically restrained by another family member.

17It is very important for this court to dissuade others who may be contemplating such vicious attacks, particularly attacks with the use of a knife.  Your attack on your brother was potentially life threatening as I have said.  Thus it is important for me to signal to other people in the community who carry knifes and who use them that that behaviour will not be tolerated and will be met with stern condemnation by the courts.

18I need also to take into account specific deterrence which is the issue of deterring you from reoffending.  Although I accept your counsel's submission that this was offending aimed at your brother in the specific context of this mutually abusive relationship and in the specific context of a particular incident of baiting, and I also accept that it is not suggested in the plea hearing today that you are a specific danger to the community generally, the nature and gravity of the offending against your brother is concerning and I need to take into account in sentencing you to signal to you that such future behaviour by you towards him or towards other family members will not be tolerated.

19I have not received any victim impact statement from your brother. However it is clear from the prosecution opening that the injuries that he suffered would have caused him great pain and distress and I sentence you on that basis.

20The details of your early life are set out in a psychological report of a Matthew Stoias and I will refer later to Mr Stoias' observations in more detail.

21You are presently 42 years of age.  You are the eldest child.  Your parents separated when you were approximately two years old and as I understand, your life was severely disrupted by the separation.  You told Mr Stoias that you had attended over 30 different schools in your school life.

22You left the family home at 14 and although you have had several relationships, you are not in a relationship now.  You have a 21 year old son of one relationship but you have little contact with him.  You also have a four year old daughter but you have little contact with the mother of that daughter and indeed, she has significant drug issues such that the child has been removed from the care of the mother and placed into the care of the child's maternal grandmother.

23You left school, Mr Netherwood, after achieving Year 9.  It appears that you were plagued by learning difficulties at school and in your employment, you have worked only as handyman or as labourer as a result of that lack of education.  Despite those handicaps though, you have been able to maintain employment and have only been on unemployment benefits for a very short period of time during your life.

24Your counsel described you as living a transient lifestyle but that is a lifestyle that has occurred as a result of you or moving to obtain work.  It is a very significant feature of your adult life that you have almost always been in work and that you have a very strong work ethic and that is greatly to be taken into account in your favour on this plea day.

25I was told that you suffered a significant injury in 2013 when you were hit on the head with a claw hammer by your brother, Mark.  You had surgery twice as a result and you continue to have headaches and blurred vision as a result of that.  I understand that the occurrence of that incidence and your perception that your brother was not properly punished for that offence have been gnawing at you and may have been a contributing factor to the events of this day for which I am to sentence you.

26You have been in custody at Ararat since this incident.  In custody, you were also been attacked twice and so you are in a protection unit.  You are likely to serve the balance of your imprisonment in protection.  This is a matter which I need to take into account in your favour given that it will mean that any gaol sentence that I impose upon you today will be particularly onerous for you.

27In Ms Stoias' report, he indicates that you have been addicted to various drugs and to alcohol for almost 20 years.  He described you starting binge drinking at the age of ten and often drinking to the point of unconsciousness.  I was told today, however, in sworn evidence from your stepmother that your present level alcohol consumption is not a concern.  I accept that you have dramatically reduced your alcohol intake although it appears from Mr Stoias' report that this will be a significant factor in determining whether or not your rehabilitation in the future will be successful.

28I now come to the heart of the plea that was made before me on your behalf.  I heard sworn evidence from your stepmother, Gayle Netherwood.  She told me that there has been a longstanding antagonism between yourself and Mark.  He has been making your life a misery for a very long time.

29She described the attempts that she had seen of him hounding you by telephone and the threats of violence he has constantly made about you over the time preceding this incident.  You have been so harassed by your brother that you decided to destroy your phone rather than to continue taking phone calls of this nature from him.

30She does not know why the relationship is strained and I have not heard any evidence either about that issue.  She has never seen you attempt to retaliate in kind against Mark.  She has never seen you engage in aggravating or aggressive behaviour towards him.

31Your counsel's submission therefore was that this matter was a spur of the moment action committed during a spiteful encounter with your brother.  It appears clear to me from what I have heard that on the occasion of this offence, something snapped.  You were immediately horrified by what you had done and have expressed your remorse since that time.

32Your counsel asked me to see the act as having occurred as a result of severe provocation.  In using that word, as I understand it, he uses it not in the strict legal sense of a defence, but in the sense of you being pushed to your limit by your victim's behaviour to a point where you committed an act which was completely out of character for you and which is to some degree mitigatory.

33I accept that the incident should be viewed in that way.  I accept that the behaviour of Mark immediately prior to that act was of a severe provocation in the terms in which it has been put to me and I note also that the prosecutor did not cavil from that description.  I accept that this behaviour also puts your offending in context and that is relevant to the prospects of rehabilitation which I will need to refer to shortly.

34Now, Mr Matthew Stoias administered some psychological tests on you.  As a result of those tests, he assessed you as falling within the borderline to low average range of intellectual functioning.  He has told me that you have limited ability to reason and understand basic verbal information.  He thinks you may have had a head injury as a result of the claw hammer attack which has also contributed to your condition.

35He believes that alcohol may have also impacted on your emotional regulation and reasoning skills.  In fact, he says that when you are intoxicated, your intellectual abilities are highly likely to be reduced and that compromises your overall cognitive skills.

36In the light of all the matters put forward by Mr Stoias, your counsel submitted to me that there should be a moderation of the principle of general deterrence because of those impairments.  I accept the submission of your counsel that as a result of those matters put forward to Mr Stoias' report, the third limb of Verdins is enlivened and I take that into account in sentencing you today.

37It is difficult to assess your prospects of rehabilitation.  Mr Stoias suggests that if you are able to abstain from substance use in the community, then your condition will improve and he has given some suggestions as to the most appropriate way in which you should undertake treatment in the future.

38It seems to me that if you are revert to continue your previous course of alcoholism and drug taking, then it seems inevitable that you will continue to offend; however, you did manage to complete the community corrections order which was imposed upon you in 2015 and this bodes very well for your prospects of rehabilitation.

39You also have very strong support from your family which is shown by the presence of your father and your stepmother here to support you on your plea and the very positive evidence that has been given by your stepmother on your behalf.

40It is also clear that apart from this offending which is relatively recent, you have spent almost all of your adult life offence free . Given that that is in the context of you having significant intellectual deficits and having had a very difficult early family life and upbringing, that also bodes very well for your prospects of rehabilitation.  That is of course provided that you comply with treatment that is provided to you and that you are given access to professional support services in the community.

41Mr Netherwood, in my view, your offending is so serious that a term of imprisonment to be served immediately is required.  What I propose to do is to impose a shorter than usual non-parole period in order to endeavour to give the Parole Board time to put in place a significant level of support for you for a significant period of time once the non-parole period of your sentence has been served.

42As I have also indicated, I have determined to sentence you to a shorter term of imprisonment that I would otherwise have done given your cognitive impairment, the circumstances of provocation which existed immediately prior to your offending, your plea of guilty and all of the other matters put forward on your plea which I have outlined today.

43Mr Netherwood, could you stand up please?

44Billy Netherwood, on the charge of intentionally causing serious injury, you are convicted and sentenced to be imprisoned for four and a half years.  I will order a non-parole period of two years and as I just said that is a shorter than usual non-parole period to allow the greatest possible time for you to have access to supports in the community to address the issues that have been raised as a result of this offending.

45I am required to tell you what sentence I would have imposed if you had not pleaded guilty to this offence and I tell you that I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years if you had not pleaded guilty.

46I declare that the time you spent already in custody of 142 days be reckoned as time already served under the sentence passed today and I will ask that that be noted in the court records.

47Now, are there any other matters?

48MR CORDY:  No, Your Honour.

49HER HONOUR:  All right.  If the order can be printed please.  Mr Netherwood, once you finish the non-parole period and back in the community, I would not expect that you would come into contact again with the criminal justice system.  If you do, you must know and remember that you have now been convicted of two very serious offences -  aggravated burglary and causing serious injury intentionally.

50If you come up before a magistrate or a judge again, you should expect a very significant period of imprisonment.  You can take a seat.

51Yes, thank you.  I have signed that order.  It is now the conclusion of the Circuit.  Thank you very much, Mr Prosecutor, for all your assistance on the Circuit.

52MR CORDY:  Thank you, Your Honour.

53HER HONOUR:  And thank you, Mr Page, for your assistance as well.

54MR PAGE:  Thank you, Your Honour.

55HER HONOUR:  And, Mr Tipstaff, I will now adjourn the court sine die.

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