Director of Public Prosecutions v Woodford
[2021] VCC 313
•19 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00709
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL WOODFORD |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 February 2021 |
DATE OF SENTENCE: | 19 March 2021 |
CASE MAY BE CITED AS: | DPP v Woodford |
MEDIUM NEUTRAL CITATION: | [2021] VCC 313 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Koori Court Plea – Aboriginal Offender – Common Law Kidnapping – Theft – Common Law Assault
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Fallar | Office of Public Prosecutions |
For the Accused | Mr J. Moore | Victorian Aboriginal Legal Service |
HIS HONOUR:
1Daniel Woodford, you have pleaded guilty in the Koori Court jurisdiction of the County Court to one charge of kidnapping, which carries a maximum penalty of 25 years, one charge of theft, which carries a maximum penalty of 10 years, and one charge of common assault. That is a five-year maximum. You have also pleaded guilty to a relevant summary offence of driving whilst disqualified, which carries a maximum fine of 240 penalty units or two years imprisonment.
2You have admitted a criminal history that discloses matters relevant to the driving while disqualified charge principally. The facts of the matter are adequately summarised in the prosecution opening, which was Exhibit A on the plea, and form part of these reasons for sentence.
3In brief, you were 36 years old at the time of your offending. You had been residing with your partner at Cochranes Drive, Snake Valley, where you had lived for some time, though you had been asked to leave those premises and were effectively homeless at the time of the offence.
4The victim, Grech, was known to you, he was 32 years of age at the time, homeless and living out of his vehicle. He was an associate of yours through drug use, but the victim also knew you as his young nephew’s much older brother.
5A few days before the incident another person, Bell, gave you $50 to buy drugs from the victim. She knew both of you. At around 1AM or 2AM in the morning a man named Miller gave you a lift to a car park at Paul's warehouse in Sunshine to meet with Grech. You called Grech twice. Grech said he would be there soon. A few minutes later while waiting, Miller fell asleep. He woke up about 6AM and realised that Grech had still not turned up. You were angry about this and said words to the effect of you were 'ripped off'.
6Miller drove you home. You left, Bell called you and said where is her money. In fact she said, 'Where the fuck is my money? I want my shit'.
7You told her that you gave Grech $150, being her $50 and your $100, and Grech had not returned. Bell demanded her money or her drugs and you said, 'Don't worry, you'll get it'. There was then further dealings and enquiries made between you and a man named Cheung-Pun..
8You caught up with Grech at a 7‑Eleven. As Grech was about to get a Slurpee he suddenly felt someone's hands grabbing him by the throat, which was you. You yelled out, 'I've got you now, cunt. You're fucked'.
9You pushed Grech towards the end of the store and then dragged him outside by the collar. This is revealed on CCTV footage.
10You dragged Grech towards his car and made him get in the car. Cheung-Pun, who had been in another car, got out and assisted in restraining Grech, who yelled out, 'Let me go'.
11Ultimately, whilst inside the car you said to Grech, 'you owe me fucking money, cunt. I'm taking this car. You still haven't paid for this car. Who the fuck do you think you are?' Grech asked what this was all about. You said, 'You'll see when we get where we're going'.
12There was a journey punctuated by various conversations. At one point Grech heard Cheung-Pun say to open the boot and 'Put him in there', but you said, no, that was not going to happen. Grech was assaulted during the journey, including by you. Whilst still being imprisoned, having met up with Bell, Bell observed Grech appearing to be struggling with his breathing. Bell sat behind you and another person.
13You had by this stage obtained the money and handed $50 to Bell. You were driving. Grech was searching for his Ventolin and said he could not breathe. Bell asked you to drive to the nearest chemist and she and the other person hopped out and purchased Ventolin for Grech, handing it to you. You then passed it on to Grech. You then travelled to another location.
14Once you got there, you turned to Grech and said you felt sorry for him and you were going to let him keep the car. You also said that he was lucky that he was your younger brother's uncle. You apologised to Grech, saying 'a lot of shit had happened' to you over the last few days.
Arrest and Interview
15You were arrested on 6 December 2018, these events having taken place on 30 November 2018. You told police in the interview that Grech was your little brother's uncle. You had known Grech for about 10 years. You would get drugs from Grech. You do not use hard drugs anymore, but you would smoke weed. You said Grech normally picks you up from the train station or drives you wherever you need to go.
16You said that about three days ago you left your bag in Grech's car, which contained your wallet, ID, clothes and so on. You had been calling Grech, but he had not responded and it made you angry.
17Now, these matters were expanded upon during the course of your plea and I accept that, whilst the money for drugs was one thing, the principal concern you had was your bag of belongings with important personal belongings in it. And in the state you were in, that was making you incredibly stressed and irritated. You became fixated on it.
18The reasons for that mental state are expanded upon in a number of neuropsychological and medical documents that I have been provided with. They became exhibits on the plea and I accept those matters.
Personal Circumstances
19In relation to the offending, I accept that your life was at a low ebb at the time of the commission of these offences. I also accept that you have already taken welcome steps towards rehabilitation since the commission of the offences, particularly since you were released on bail in January 2019 to the present.
20The circumstances of the offending are serious and of course have impacted heavily upon your victim, Mr Grech. However, in many respects the circumstances of your offending are absent many of the serious aspects that often accompany offences of this type and in particular offences of kidnapping.
21In the days prior to the offending you were homeless. Effectively your partner had asked you to leave the family home because you had started using ice again. You were basically sleeping on friend's couches using ice and cannabis, drinking heavily and were generally adrift. You had not been sleeping and, as I touched upon, your backpack held your clothes, your wallet, containing cash and identification and an iPad. That bag of course had great importance to you, being effectively homeless at the time.
22Your primary motivation for the offending was to recover your bag. I accept it was essentially spontaneous offending. It is significant that neither you nor co-offenders were armed at the time. It was not protracted and did not involve more serious imprisonment such as the victim being placed in the boot. In fact that suggestion you refused. You were aggressive during the offending but did not make any overt threats to kill or seriously injure the victim.
23Whilst the victim was assaulted and sustained injuries, they were not serious or ongoing injuries. The offending broadly stopped when the victim had an asthma attack and steps were taken by you and co-offenders to get him a Ventolin inhaler. You returned the vehicle to him at the end of the offending and it is also significant and reflective of your character that in the midst of all that you apologised to the victim at the scene when the offending had ended.
24Whilst that is a natural reaction that we would expect of law-abiding members of the community, it is often the case that drug-affected people involved in the sort of offending you were engaged in do not reflect at the time and have no intention of apologising. The fact that you did in those circumstances I think says something about your underlying character and also the effect of drugs and other things that were operating on your psychological state at the time.
25Your counsel Mr Moore filed a comprehensive outline of submissions on the plea which was of great assistance in this matter, taking particular note of your early childhood and teenage years. You were born in October 1984 in Melbourne to your mother Kerry Patulo and father Michael Woodford. It is through your mother's line and your maternal grandmother's line that you find your Aboriginal heritage and you have a strong connection to your identity as an Aboriginal man. You are a proud Wurundjeri man.
26You have four siblings, a brother Lee Patulo, who is unfortunately now deceased, and I will touch on that again, Christopher Patulo, Catherine Woodford and Michael Woodford junior.
27You grew up in a busy household that included your parents, your Uncle David on your father's side, your paternal grandmother, older brothers, your sister and a cousin on your father's side. You lived there until you were seven, when you parents separated, and after that separation you and your brother Christopher moved to Perth with your mother and you lived there until you were 15. Your older brother Lee continued to live in Melbourne with your maternal grandfather.
28Your mother commenced another relationship in Perth which was one involving significant family violence, which was witnessed by you. Your mother left that partner many times and tried to set up a household somewhere new, but the ex-partner continued to find and follow, causing much distress to you, being a vulnerable child. Your mother eventually managed to extricate herself from that relationship when you were around 14 and commenced another relationship with a man called Wayne Bonney and that was a harmonious relationship and you got along well with him. That ended after a few years.
29When you were 13 a traumatic event happened which still leaves a strong impression upon you. You witnessed your older brother Christopher trying to end his life by hanging.
30You had to scream for your mother to come and help and held your brother up by the legs. Your brother Christopher was in a poor mental health state partly due to him having to act in a caring role for a long time to his younger siblings, being yourself and your sister, together with the stress of course of the constant cycle of family violence to which I have referred and the moving to escape its consequences. It had taken its toll on him and no doubt had consequences for you in terms of your development.
31In 2014 your brother Leigh was killed in very violent circumstances, being attacked with a Samurai sword, and understandably that is a significant matter that has impacted upon you heavily from that time. It was devastating for you.
32You had a good relationship with your brother Leigh. On the night he died a friend offered you some methylamphetamine to help block out your emotional pain and from there you started to use ice more frequently, a habit which you had never had before. You also started drinking more heavily.
33You had trouble sleeping and were plagued by bad dreams about your brother's passing. Your ice use increased in an effort to stave off sleep and nightmares. Understandably, you were still heavily affected by your brother's passing. In particular, I was told that the anniversary of his death is especially difficult.
34Given that history I have described, it is also not surprising that your education history was limited and disjointed. You also found school life very difficult for other reasons. Subsequent assessments note that you most likely experience dyslexia and have continued struggles in relation to literacy.
35You did do well at sports subjects and particularly woodworking as well. Your attendance at school dropped off significantly once you turned 13 and you ultimately left school during Year 9, aged 15. You returned to Melbourne and sought work.
36You have always been someone, when able, who has worked, first working in a supermarket, then as a welder at Smorgon Steel. You also worked as a crane driver, dogman, rigger, and also worked in concreting.
37After an injury in 2010, which I will come to, you had trouble keeping work and from there was doing mostly casual work on and off cutting firewood, including under your own business. Due to a motor car accident injury in 2016 you have not been able to engage in meaningful work. You still cut wood and you still have ambition to pursue employment.
38Between the ages of 15 and 19 you lived on your own in rooms above the Derrimut Hotel in Sunshine. During this time you had a very heavy drinking habit. I was told you were drinking bourbon to the point of drunkenness every night.
39When you were 18 you met your current partner Ms Fry, who I heard from during the Koori Court sentencing conversation, and she has been a tremendous support for you throughout many of your troubles over the years. Your first child with Ms Fry, Kiara, was born on 5 November 2004, and Caiden was born on 19 September 2005. You also have a 19-year-old son who lives in Karratha.
40You have been in a relationship with Ms Fry since you were 18 and lived together since you were 19 except for two brief separations, the most recent of which was immediately before the offending. Ms Fry had asked you to leave the home due to your escalating drug use.
41As I have touched upon, after your brother's death your drug use slowly increased, although largely you concealed it from your partner.
42Once your ice use got to the point of daily use and also drinking heavily it was apparent to Ms Fry the full extent and things came to a head due to the serious car crash on 17 November 2016. You had a prolonged convalescence, including being unable to walk for six months.
43By September 2018 the ice use and drinking had started to creep back in, whilst it had been in abeyance during your convalescence. Your ability to work was vastly reduced. This obviously had a negative impact upon you and upon your psyche.
44Understandably, Ms Fry became unhappy and upset about the alcohol and drug use and asked you to leave the family home. Fortunately for you, whilst you were in custody on remand for this matter, you reconciled and since then Ms Fry has continued to pick up from where she left off, being a strong support for you.
45I heard from Ms Fry during the sentencing conversation and she impressed as being an extremely positive influence in your life.
Medical History
46You have got a significant medical history that Mr Moore set out in detail in his written submission. At 11 you were badly burnt to the face due to an explosive accident. In 2008 you had a quad bike accident, suffering head injuries.
47In 2010 you suffered a head injury after being assaulted in a hotel. This led to a short stay in hospital and a CT scan which showed a brain injury to the left frontal lobe and left basal ganglia contusions, and ultimately encephalomalacia, which is softening or loss of brain tissue.
48I was told that at the time of your admission to hospital after that head injury you had a Glasgow Coma Scale score of 3 out of 15, which is extremely low.
49In 2016, as I have said, there was the serious car crash. You were hospitalised for about three weeks, unable to walk for about six months. Your injuries included multiple fractures in the pelvis, fractures to your ribs, bleeding on lungs and lung contusions, lacerated liver, lacerated kidney and fractures in your lumbar spine. You have ongoing severe pain in low back and hips.
50Your decline in functioning at that time and subsequent has been noted. It has had a profound effect on you, the consequences of that accident. Your memory has deteriorated, your tolerance for things has been impacted. You become angry and irritable more easily than in the past. Due to the ongoing pain in your back and hip you are unable to work.
51Consequently, your mood is persistently low. Your motivation to do normal things like socialising has been heavily impacted. Your sense of self-worth has also been shattered.
52Despite those difficulties you have progressed after being released on custody from remand in this matter on bail and demonstrated that you have ability and genuine intentions to rehabilitate and progress in life.
53During the Koori Court sentencing conversation, you engaged well in difficult circumstances. It is apparent that you are not used to opening up and being expressive, but you dug deep and provided the elders with fertile ground to draw out important considerations for you.
54You are a proud Wurundjeri man through your mother and maternal grandmother's line. You strongly identify as an Aboriginal man. You did not have a lot of exposure to your culture and history growing up, as I understand it, and you had a difficult time as a teenager in WA due to being bullied and discriminated against for your Aboriginality, but also due to not fitting in with the Aboriginal communities there such as the Noongar mob. You were stuck in the middle somewhat, it would seem.
55As I have explained, you had a traumatic childhood in many ways. To your great credit you have explored and learned about your Wurundjeri history, prompted by your daughter's interest, and you came to the Court as one well versed in your culture and heritage. You are keen to learn and engage more and I am sure you will have that opportunity.
56It is not easy engaging in the sentencing conversation. As I have mentioned, the conversation in your case, guided by the elders and enabled by your openness, bore fruit. I am satisfied that despite some bleak aspects of your current circumstances you have solid, identifiable and achievable goals for the future.
57I am impressed by the support of your partner Ms Fry, who also spoke, as I have stated. I am also impressed by the efforts you have made at rehabilitation since being arrested and admitted to bail on this matter in January 2019. I am satisfied that you have a clear path forward towards rehabilitation. I am satisfied your prospects are good.
Mitigating Factors
58The offence of kidnapping is a category 2 offence and the operation of s.5(2)(a) of the Sentencing Act fell for consideration during the hearing. Again, Mr Moore set out comprehensively the basis for his submission as to why your circumstances fell as an exception to the operation of s.5(2)(h).
59He summarised these at the outset as saying, first, you have an acquired brain injury that is causally linked to the offending that operates to reduce your culpability.
60Second, by reason of impaired mental functioning you will be subject to substantially and materially greater than the ordinary burdens of imprisonment; and,
61Third, the case involves substantial and compelling circumstances, exceptional and rare, that justify not ordering imprisonment.
62I accept each of those bases. There is support for all of them. In particular, and I will refer to Mr Moore's written submissions rather than go into the matter in detail, but in particular from paragraphs 41 to 43 in relation to the link between acquired brain injury and the offending. I accept those matters. I also accept the matters from paragraphs 44 down to 47 in relation to the causal connection with impaired mental functioning and its effect on your ability to exercise appropriate judgment and in turn therefore its relevance to reducing moral culpability.
63Aside from those matters, you are entitled to mitigation due to your pleas of guilty. I have taken into account the effects of your poor physical health and the need for ongoing drug use rehabilitation in your case. I have also taken into account your experience in custody on remand.
64In your case, Mr Woodford, I am going to impose an aggregate sentence. This being a matter where there is before me on the indictment and including the relevant summary offence, a series of offences arising out of the one enterprise or incident.
65On the four charges before me, Mr Woodford, I sentence you to 47 days imprisonment in combination with a two year community corrections order. Special conditions of that order are that you perform 100 hours of unpaid community work over the duration of the order. I will order that up to 100 hours of treatment and rehabilitation can be credited towards those hours.
66I order mental health assessment and treatment as directed. Also, drug and alcohol assessment and treatment as directed and supervision.
67Pursuant to s.18 of the Sentencing Act, I declare that you have served 47 days as pre-sentence detention in this matter.
68In relation to Charge 2, the theft of a motor vehicle, I am bound to make an order against your licence and in the circumstances of your driving whilst disqualified, that requires me to order that your licence is cancelled and disqualified for three months.
69Pursuant to s.6AAA, if it were not for your pleas of guilty, I would have sentenced you to nine months' imprisonment with a two-year CCO and 200 hours of work.
70In relation to those hours of work, Mr Woodford, I understand your physical limitations and I understand what was recommended in the community corrections report and the reference to previous or current order where you have not been able to complete any of the 200 hours.
71That is why I have allowed for credit of 100 hours. During the sentencing conversation, you were very optimistic about being able to get your life moving and engage in some meaningful activities. So, I do hope that there can be some appropriate work found for you. If that becomes a difficulty, well I will have to hear about it again and Mr Moore can advise you on that.
72Do you consent to the community corrections order, Mr Woodford? The effect of my sentence is you have got 47 days and a two-community corrections order but you have already served the 47 days. So, you will now be asked to enter a community corrections order but I am asking you, do you consent to the order?
73OFFENDER: Yes.
74HIS HONOUR: Yes. Thank you for that. That will then be stamped at Registry as you having consented to the order as I understand it. Mr Moore, is there any order I need to make or anything that is outstanding?
75MR MOORE: I cannot identify anything, Your Honour.
76HIS HONOUR: All right.
77MS FALLAR: Your Honour, if I may?
78HIS HONOUR: Yes, Ms Fallar.
79MS FALLAR: Three matters, if I may, is the licence cancellation limited to Charge 2, which is theft of a motor vehicle or is it Charge 2 and summary Charge 9?
80HIS HONOUR: Summary Charge 9 is the drive whilst disqualified, is it not? So I think there was discretion in relation to that. I think I can put it against both, given I have given an agGrechate sentence. I was minded not to - I did not want to disqualify him for longer than I had to, given that he has been on bail for a couple of years and I want his rehabilitation to continue. But I think it probably does not make a great deal of difference but I think it can apply to both.
81MS FALLAR: Correct. Just two other matters, Your Honour, one is the sentencing consideration of general deterrence, specific deterrence, denunciation, protection of the community and rehabilitation, it is probably me, I did not pick it up from Your Honour's sentencing remarks.
82HIS HONOUR: I did not specifically refer to those matters but as I always do, general deterrence is an important consideration particularly in relation to kidnapping. Specific deterrence, not as much of a consideration in Mr Woodford's case, given history not directly relevant and the progress on bail. Denunciation of course, all those matters are reflected in my sentence. I have imposed the sentence I consider appropriate to reflect all sentencing factors.
83MS FALLAR: Yes, thank you, Your Honour. And just one other matter, sorry about this, but in relation to the facts, the prosecution opening being Exhibit A has already been tendered but as a matter of fact, the bit by Cheung-Pun which is to put Mr Grech in the boot did not happen at the petrol station, it happened after that. Just for the purposes of the characterisation of the kidnap.
84HIS HONOUR: Yes. I did not intend for it to come out as though it happened at the petrol station. I was just summarising the facts and I think I said along the journey.
85MS FALLAR: Thank you, Your Honour.
86HIS HONOUR: But in any event, thank you for bringing that up. Nothing else?
87MS FALLAR: No, Your Honour, thank you.
88HIS HONOUR: All right, I thank everyone. Good luck, Mr Woodford.
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