Director of Public Prosecutions v Woodbury
[2023] VCC 720
•2 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR-22-01723
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW THOMAS WOODBURY ANTHONY JAMES WOODBURY |
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JUDGE: | HIS HONOUR JUDGE CHETTLE | |
WHERE HELD: | Melbourne and Geelong | |
DATE OF HEARING: | 19 April 2023 | |
DATE OF SENTENCE: | 2 May 2023 | |
CASE MAY BE CITED AS: | DPP v Woodbury & Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 720 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW SENTENCE
Catchwords: Sentencing – aggravated burglary, intentionally cause injury, theft, breach of intervention order, trespass.
Legislation Cited: 6AAA of the Sentencing Act 1991.
Cases Cited:
Sentence:Andrew Thomas Woodbury; Imprisonment, Total Effective Sentence–10 months, Community Correction Order 2 years, rehabilitation and treatment for alcohol abuse and dependency, unpaid community work, $3,000 compensation. Anthony James Woodbury; Imprisonment, Total Effective Sentence – 2 years 6 months. Non- parole period 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms. D. John | Ms. D. John, Ms. I. Barry |
| For the Accused Andrew Woodbury For the Accused Anthony Woodbury | Ms. K. Rolfe Mr. T. Antos | Ms. S. Mawby, Geelong Lawyers. Mr. J. Brancato, Gallant Law. |
HIS HONOUR:
1 Anthony James Woodbury, you have pleaded guilty to one charge of aggravated burglary and one charge of intentionally causing injury.
2 Andrew Thomas Woodbury, you have pleaded guilty to the same charge of intentionally causing injury and one charge of theft.
3 In addition, you have each pleaded guilty to a related summary offence. You, Anthony, to a breach of an intervention order and you, Andrew, to a charge of trespass.
4 The facts of your offending are set out in Exhibit A, the further amended Prosecution Summary on Plea. I was advised by both your counsel that I could treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence and sentence you both on the basis of the facts set out therein. There is no need, therefore, to extensively set out the facts of your offending.
5 However, briefly stated, you, Anthony Woodbury, had a history of dispute with one Adam Marshall. He had been involved apparently in an affair with your wife and allegedly assaulted your wife in January of 2022. Marshall obtained an intervention order against you, Anthony, in early April of 2022.
6 Against that background, you, Anthony, you, Andrew and one Michael Rhodes drove to Marshall's home in Indented Head at about 10 pm on 29 April 2022. You all got out of your vehicle and you, Anthony, ran to the garage where Marshall was drinking with a friend. You punched him to the eye and dragged him out of the shed into the driveway. That is Charge 1, aggravated burglary.
7 Exhibit B, the CCTV footage, depicts clearly what happens next. After you, Anthony, dragged your victim out of the shed, you, Andrew, joined in the physical assault on Marshall. You, Andrew, punched him four times, whilst you, Anthony, punched, kicked and dragged him around on the concrete. You, Andrew, then went inside the garage, stole Mr Marshall's wallet and walked back to the car. Rhodes went first inside the garage and engaged with Marshall's friend, then came out and joined in Anthony's continued assault on Marshall. Rhodes punched and stomped Marshall and then picked up Marshall's phone and went to the car. You, Anthony, continued to punch and kick Marshall, brutally beating him for about a minute before going back to your car and leaving.
8 Marshall was later taken to hospital with a laceration above his left eye, bruising to the face, lumps on his head and back pain.
9 You were both arrested and interviewed on 30 April 2020. You, Anthony, were cooperative and made full admissions, whilst, Andrew, you lied to the police and denied any involvement in the offending.
10 You both admitted prior criminal records. You, firstly, Anthony, were convicted, amongst other offences, at Tamworth Local Court in 2005 of break and entering a building - that was a burglary for theft as I understand it - and released on a bond. You were before Tamworth Local Court again in 2008 on a number of charges of assault occasioning bodily harm and you received terms of imprisonment in respect of those assaults. You appealed that to the
Tamworth District Court, but those appeals were unsuccessful.
11 You were before the Gosford District Court in 2009 on charges of aggravated assault with intent to rob and sentenced to 26 months' imprisonment. You have a number of other offences for drug offences, dishonesty offences and trafficking offences. Significantly, on 10 July 2017 you were before the
Geelong Magistrates' Court on charges of intentionally causing injury and making a threat to kill, and you were fined, without conviction, an aggregate sum of $1,000. I was informed that that involved retribution for a similar incident involving your wife. Finally, on 19 September 2018 you were fined without conviction for intentionally damaging property.
12 You, Andrew Woodbury, have a number of prior convictions in
New South Wales. On 1 February 2008 at Gosford District Court, you were convicted of robbery in company, accessory after the fact to a serious offence and sentenced to two years' imprisonment. You have offences for dishonesty, driving offences and property destruction offences. On 11 December 2015 you were again before the Tamworth Local Court on charges of using a carriage service to harass or offend, destroying property, common assault and you were without conviction released on a Commonwealth s19B bond.
13 On 16 November 2017 at the same court, you were imprisoned for 15 months for stalking and with intent to intimidate. You have convictions for resisting police officers in the execution of their duty, for which you were sentenced to an intensive corrections order, and other offences of a similar nature. Finally, on 11 February 2020 you were charged with contravention of a prohibited restriction and an AVO, stalking with intent to intimidate and place in physical fear, and a warrant was issued for your arrest as I understand it. I do not know what the result of that offence was.
14 Your victim has provided a victim impact statement, Exhibit C. He is apprehensive and cautious in the company of others. He is hypervigilant and nervous, and he has trouble sleeping and needs psychiatric treatment. He does not feel safe and I take the victim impact material into account in sentencing both of you.
15 The offences to which you have both pleaded guilty are serious criminal offences. That said, the learned prosecutor properly conceded that your offence, Anthony, of aggravated burglary, is at the lower-level example of that type of offence. You very briefly entered a garage not a house. The offending involved in the offence of intentionally cause injury, however, is an upper-level example of that offence. You, Anthony, punched him - you punched him numerous times, you kicked and kneed him to the head, you dragged him around and punched him hard when he stood up.
16 Although your personal involvement in the offence was (indistinct) Andrew, you are complicit in Anthony's protracted infliction of injury. You are both lucky that your victim was not more seriously injured. Your theft of the victim's cash and phone, Andrew, was opportunistic and dishonourable. You stole approximately $3,000, a not inconsiderable sum.
17 Turning to the personal circumstances of each of you and dealing with you
first, Anthony Woodbury. You are now 47 years of age, being born in
New South Wales in July 1985. You grew up in what your psychologist described as a dangerous and rough environment. You had no relationship with your biological father and were subjected to regular physical abuse at the hands of your stepfather. Your mother appears, unfortunately, to suffer from cerebral palsy. You managed to complete your HSC at an agricultural school in New South Wales and then a certificate in commercial cookery at the
Gordon Institute in Geelong.
18 You had moved to Victoria in 2011 with your then pregnant wife, you said, to escape the life you had previously been living in New South Wales, and that is as evidenced by the criminal record to which I have just referred. You have been with your wife for 12 years and you have three children. Your records indicate issues with drugs and alcohol. You have abused cannabis, ice and amphetamines and cocaine. Since your release on bail, you have sought assistance from medical practitioners and drug and alcohol counsellors. You were recently diagnosed with post-traumatic stress disorder and are medicated for that condition.
19 Since moving to Victoria, you have worked in the hospitality area. You have worked as a chef at Bellarine Estate Winery and have been involved in establishing the food relief charity Feed Me Bellarine. You have assisted with providing the less fortunate in the region with over 300,000 meals. A reference obtained from the proprietor of Bellarine Estate speaks highly of you, your
value as a chef and your qualities as a human being. A reference from
Mrs Linda Woods attests to your charitable work. She says:
'Anthony openly acknowledges that he's made some poor decisions and he's remorseful for the things he's done. Anthony has shared his awareness of the devastation he has caused to people around him and in particular his children. He has been working over recent months as a chef at Bellarine Estate. He has cleaned up his life and, to the best of my knowledge, is sober and free of illicit substances and has given up smoking. He's working on his physical fitness and this is evidenced by his health, appearance and demeanour. Your Honour, I consider Anthony a trustworthy and supportive person.'
20 Your wife Anelle also provided a reference. She outlined the difficulties you had both experienced with the birth of your son and the effect of the COVID‑19 on your relationship. She outlined your time in remand on these charges and says:
'Anthony has done so much major work on himself since leaving prison. He's put himself in drug and alcohol counselling and does that fortnightly. He sees a psychologist regularly and is trying his hardest to see a psychiatrist. He no longer drinks alcohol and our house is a happy and safe home again. My children are also the victims in all of this and they really struggled in the nine weeks that their dad was incarcerated. We had them linked in with the school counsellors and other agencies to help them get through. I'd really hate to see them go over without their dad again and have to suffer again.
'Our marriage is back on track. We are happy. I'd really hate to lose my husband again. I do believe that Anthony regrets his actions and all he wants now is a stable, happy family home for our children and ourselves.'
21 I take these references into account in the sentencing.
22 Turning to you, Andrew Woodbury. You are now 34 years of age, being born in Tamworth in February 1989. You experienced the same violent childhood as your brother. You no longer have contact with your father. You were expelled from school in Year 9 level and have only basic literacy and numeracy. You were diagnosed with ADHD and prescribed dexamphetamine when you were 11 years of age. This substance affected your sleep and you fell into abusing amphetamine, then methylamphetamine, throughout your life.
23 Your criminal record is also consistent with this history. You moved to Victoria in late 2019, having attempted, largely unsuccessfully, to remain drug-free. You have worked in - sorry, I will retract that - largely successfully, not unsuccessfully - successfully to remain drug-free. You have worked in fencing, factory work and at a local winery. The proprietor of that winery provided you a reference and he states that you have held casual employment with Bennetts On The Bellarine for a period of two years. He was aware that you were on remand between April and September of 2022 and that you are back at work with him in January 2023. He says:
'Over the last few months, I've found Andrew has returned to work for us in a headspace that is clear, constructive and extremely complementary to the business and the people around him. Andrew is now overseeing and mentoring a young trainee that's recently commenced with the business, and it's a testament to his maturity and development as an employee and an individual.'
24 You now reside in a unit with an ex-partner in Breakwater and are enjoying what is said to be the most stable period in your life. You have been undergoing a self-directed change and antiviolence program with a neuropsychologist Gregory Riddett. He provided a reference attesting to your remorse for this offending and your genuine desire to change your behaviour. Significantly, you have had no other involvement with police in Victoria apart from this offending over really a four-year period. You have complied with strict bail provisions, including an alcohol ban, since your release on bail.
25 Both your counsel submitted that a combination sentence, a community corrections order and a term of imprisonment, could properly meet relevant sentencing principles in both your cases. I had you both assessed for suitability for a community corrections order as part of the process of determining an appropriate sentence for each of you. You have both obviously been found suitable for such a disposition.
26 I take into account for both of your pleas of guilty. Those pleas evidence what I accept is remorse for your offending. You are both entitled to a reduction to the sentence I would otherwise impose to reflect those pleas of guilty. That reduction is greater because of the increased utilitarian value of your pleas of guilty as a result of the effect COVID‑19 has had upon our justice system. Your pleas of guilty were entered at an early stage.
27 I also find that both of you have positive prospects for rehabilitation. Indeed, both of you have made considerable progress in this regard since your release on bail. I take into account in your favour, Anthony Woodbury, your cooperation with police and your full and frank admissions. I accept the prosecution's submissions that, you, Anthony, are clearly the main offender in the violent incident. You had the issues with your victim that motivated your offending. You acted in revenge for what you believed your victim had done to your wife. The law cannot tolerate and does not tolerate you taking the law into your own hands.
28 You committed the aggravated burglary and you inflicted most of the damage to your victim. The Court of Appeal has provided guidance to this court as to how those who commit confrontational aggravated burglaries should be sentenced. Often substantial terms of imprisonment are imposed. I accept that it is in your interests, as well as the community's, to see you rehabilitated, but your rehabilitation is only one of the relevant factors. This court is required to deter others from acting as you did and must express the community's denunciation of your conduct. I am of the view that the court is required to impose a term of imprisonment for your offending and that such a term of imprisonment must exceed that which would allow me to impose a combination sentence 12 months in prison.
29 You, Andrew Woodbury, played a lesser part in the offending but, nonetheless, were party to an ugly, brutal and sickening attack on a man on his own property. I do, however, accept the submission of the learned prosecutor that in your case a combination sentence of a community corrections order and a gaol term is within range for your offending. I have been informed that your co‑offender Rhodes received a community corrections order in the Magistrates' Court. That does not mean that this court must impose an inadequate sentence for your offending. Rhodes may have convinced a magistrate that he played a lesser role than you did, Andrew Woodbury, in the offending and I do not know if his prior convictions were the same as yours, Andrew Woodbury.
30 I have reduced the term of imprisonment to be imposed on each of you to reflet the matters urged on your behalf - on behalf of each of you by your counsel, particularly the steps you have both taken to positively rehabilitate yourselves. In your case, Anthony, the steps you have taken are particularly impressive and have significantly reduced the sentence I would have otherwise imposed. Would you both stand up, please.
31 The sentences of the court are: on Charge 1, aggravated burglary, you, Anthony Woodbury, are convicted and sentenced to 18 months' imprisonment; on Charge 2, intentionally cause injury, you, Anthony Woodbury, are convicted and sentenced to be imprisoned for two years. I order that six months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2, the base sentence. That is an effective term of imprisonment of two years and six months. I order that you serve 15 months of that sentence before being eligible for parole.
32 On the summary offence of contravention of an intervention order you are sentenced to be imprisoned for one month. Because that breach also constitutes the indictable offence, I order that the sentence be served concurrently with the indictable sentences.
33 I declare that 63 days of the sentence I have just imposed has already been served by way of pre‑sentence detention.
34 On Charge 2, intentionally causing injury, you, Andrew Woodbury, are convicted and sentenced to a term of imprisonment of 10 months and a two‑year community corrections order thereafter. On Charge 3, the charge of theft, you are convicted and sentenced to a two-year community corrections order.
35 Apart from the core conditions the following special conditions apply: you are to perform 100 hours of unpaid community work; you are to undergo treatment and assessment for drug abuse, and treatment and rehabilitation for alcohol abuse; you are to undertake programs to reduce reoffending and to be under supervision. I will order that 40 hours you spend on courses and programs can count against your unpaid community work.
36 Did you consent to such an order?
37 OFFENDER A.J. WOODBURY: Yes.
38 HIS HONOUR: You understand what that means, that if you - you have got to go to prison for a short time, but then you will be released on a community corrections order. If you breach that order you are brought back in front of me and I have to resentence you. Do you understand that?
39 OFFENDER A.J. WOODBURY: I understand.
40 HIS HONOUR: Yes. All right.
41 I declare that 140 days of the sentence I have just imposed on you has already been served by way of pre‑sentence detention - that is Andrew Woodbury.
42 On the summary offence of trespass, you are sentenced to 14 days' imprisonment. Such term of imprisonment to be served concurrently with the indictable sentence. I make the compensation order sought by the prosecution and I declare, pursuant to section 6AAA of the Sentencing Act, that but for your pleas of guilty I would have imposed a term of imprisonment of five years with a non‑parole period of three years upon you, Anthony Woodbury, and two years and six months and a non‑parole period of 18 months on you,
Andrew Woodbury.
43 Any other orders required?
44 MR ANTOS: No.
45 HIS HONOUR: All right. Could you remove the prisoners please and I'll adjourn until some time - I'll adjourn until 2 o'clock.
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