Director of Public Prosecutions v Woods

[2016] VCC 1034

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 15-01926

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY BRIAN WOODS

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Latrobe Valley and Melbourne
DATE OF HEARING:	15 July 2016
DATE OF SENTENCE:	20 July 2016
CASE MAY BE CITED AS:	DPP v Woods
MEDIUM NEUTRAL CITATION:	[2016] VCC 1034

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore (Plea) Mr C. Liaskos (Sentence)
For the Accused	Mr P. Bourke (Plea) Mr G. O'Shea (Sentence)

Pages 1 - 16

 

 

HIS HONOUR:

1Timothy Brian Woods, after a short trial in the Latrobe Valley in May 2016, you have been found guilty of one count of aggravated burglary, two counts of common law assault, two counts of making threats to kill, and two statutory alternative counts of contravening a family violence intervention order.

2In addition, on a separate presentment, you have pleaded guilty to one count of attempting to pervert the course of justice.

3The relevant maximum penalties are set out in the prosecution plea opening, which I incorporate by reference.  I am required to sentence you in accordance with the jury verdicts.  At the trial, you were acquitted of one count of common law assault, one count of making a threat to kill, one count of indecent assault, and a count of persistent contravention of a family violence intervention order.

4The circumstances of the offending emerged in the course of a relatively short trial, and arose out of the breakdown of a relationship between you and the complainant.  There were also set out in the prosecution opening.

5In summary, which I incorporate by reference, in about August 2014, the complainant was living in western Victoria with her four-year-old daughter.  You met the complainant and commenced a relationship.  At that time, your parents were living in the West Gippsland area.  You had custody of a young son, about the same age as the complainant's daughter.  You and the complainant decided to move to the West Gippsland area, and moved into a house at Coronet Bay. 

6Your relationship with the complainant was marred by problems with your drinking, and in November 2014 she obtained an intervention order against you arising out of an incident.  That order was for the benefit of the complainant and her daughter, and prevented you from committing family violence against them, and also attending within 200 metres of where she was living in Coronet Bay. 

7The order was varied by consent on 28 November 2014, but still remained to protected the complainant and her daughter from family violence and from you going to the property or within 200 metres of it.  You were served with a copy of the order on 30 November. 

8You left the property at that time, but in the period thereafter up until 2 February, there was communication between you and the complainant, and with her agreement you continued to see her at the property, and stayed overnight on a number of occasions, including with your young son.

9During late 2015 and early 2016 your behaviour deteriorated.  On 2 February, after the complainant had been away for a weekend, there was a confrontation between the two of you over the fact that you had apparently resumed drinking while she was away.  Thereafter you left the property.  You moved in with a woman, Ms Travernor, who lived a couple of streets away. 

10During that week, that were various text messages between the two of you.  The text messages had a somewhat bitter tone, and a dispute arose as to whether you owed the complainant money for rent, and the fact that she was retaining a television that you had been renting until you paid the outstanding rent into her bank account.  The complainant had also advertised the television as available for sale on Facebook.  You threatened to post an embarrassing photograph of the complainant on Facebook.

11Prior to 9 February, there was an arrangement made with your mother for her to pick up a child's blanket of yours from the property.  You in fact attended at the property on the afternoon of 9 February to collect the blanket which had been left on the back verandah.  This was in breach of the intervention order and constitutes Count 9 at the trial, the summary alternative count.  At the trial, your attendance on that occasion was not in dispute. 

The events giving rise to the charges 

12On the evening of 9 February, you and Ms Travernor spent the evening talking and drinking alcohol at her house.  She gave evidence that you had drunk about 12 stubbies.  Around 3.20 am you told her you were going to the complainant's home to collect your belongings.  You took her mobile phone and left your phone behind on the charger.  Her evidence was that you were intoxicated and angry, and she tried to persuade you not to leave.

13You left, and walked to the complainant's address. At the address, you entered the house downstairs using a key you had kept.  At around 3.20 am on that day, the complainant was at the Coronet Bay address on the upstairs balcony outside having a cigarette.  Her daughter was asleep in an adjacent room.  The complainant turned and found you in the bedroom.  The complainant was not aware that you had a key, nor had she given you any permission to be at the property.

14Upon seeing you in the bedroom, she screamed, as she believed that you were in fact not in the area, but in another location in West Gippsland.  She was scared and frightened, and at the end of that you said to her "Are you done now?".  She backed off towards the other side of the bed, and you then approached her and grabbed her by the throat with one hand.  You pushed her against the wall and said "You deserve this.  Are you gonna call the cops?".

15She told you to leave, and that she would not call the police.  You let her go and then went downstairs.  You told the complainant that if she called the police you would kill her and her daughter.  These events constitute the counts of aggravated burglary, common assault, making a threat to kill the complainant, and making a threat to kill the complainant’s daughter, as well as contravening the family violence intervention order.

16The complainant continued to tell you to get out of the house, however you would not leave.  You referred to your new relationship with Ms Travernor, and asked the complainant to have sex with you one last time.  A lengthy argument then occurred.  During this period she was sitting on the couch in the lounge room, and you walked up to her and pushed your forearm into her throat, pinning her back onto the couch.  This event constitutes Count 5, common assault.

17You then stopped and stood up and went upstairs.  You approached the complainant’s daughter, who was in bed, and hugged her.  You went into the complainant's bedroom and removed the television.  You went back downstairs and removed the DVD player, placing it in your backpack.  You rang Ms Travernor using her mobile phone.  You left the house via the front door carrying the television and the backpack.  The complainant then locked the front door.  Ms Travernor stopped her car outside the front of the house.  You put the television and the backpack in the boot of the car and she then drove you back to the other address.

18After you had left, the complainant contacted the police who attended the scene around 7 am.  The complainant was examined by Dr Htun at South Gippsland Family Medicine that day, and was tender in the area of her neck and upper chest, some bruising in the area of her chest and upper arm came out in the days following.  The complainant gave evidence that the experience was very traumatic for her and her daughter.

19At around 11.30 am on 10 February, you attended the Wonthaggi police station as a result of being contacted by the police.  When interviewed, you denied committing the alleged offences.  You denied attending the complainant's home at all on the 9th and 10 February and stated that you had been at your mother's house at Bunyip with Ms Travernor and had stayed there all night.  You said that your mother had collected some items, including a TV, on 9 February from the home of the complainant.  Later in the interview, you said that you had in fact attended the complainant's home to collect a blanket during the afternoon.

20You stated that you were aware that that had constituted a breach of the intervention order.  You otherwise in the record of interview denied committing the alleged offences. 

Separate presentment:  Doing an act tending to pervert the course of justice

21The circumstances of this offence are set out in the plea opening.  In brief outline, you and Ms Travernor drove to your mother's home in Bunyip after the events, and you then instructed Ms Travernor and your mother that if they were spoken to by the police they should tell them that you were at your mother's home all night.  Subsequently, both Ms Travernor and your mother provided false statements to the police attesting to your presence at the West Gippsland house on the evening when you had in fact committed offences at Coronet Bay.

22The police subsequently spoke to Ms Travernor after making various checks, and then she admitted that had made a false statement, and told the police that she had been instructed to do so by you.  She then made a second statement outlining the circumstances in which you had left her property in the early hours of the morning.  She confirmed that you had been drinking the previous evening, and that you had become angry and had left at about 3.20 am, telling her you were "going to her property to get your stuff back".  She confirmed that you had told her what to say in her earlier statement.

23On 12 February, your mother, Ms Woods, made a statement to police stating that you and Ms Travernor had stayed at her home on the night of 9 February, and had not left until about 6 am on 10 February, and returned later at 9.20 am.  Subsequently the police spoke to Ms Woods and she admitted that the first statement was false, and then on 24 February made a second statement confirming that the first statement was false, and confirming that you and Ms Travernor had not stayed at her house that evening.  She also confirmed that you had asked her to make the relevant statement.

Assessing the seriousness of the offences

24On the plea, your counsel did not dispute the seriousness of the offending.  At the trial your counsel did not put in issue that you had attended the premises in the early hours of the morning.  Although you did not give evidence, and had given an exculpatory record of interview, the thrust of your defence at the trial was that you had attended there with intention to retrieve your property, and not to assault the complainant.  The jury must have rejected the account in order to convict you of the relevant offences. 

25The offence of aggravated burglary is complete at the moment of entry into the property.  The mode of entry into the premises, your intention at the time, and the circumstances of your entry are essential to assessing the seriousness of the offence of aggravated burglary.  This was an entry in the early hours of the morning, where you must be taken to have known that the complainant, who had the benefit of an intervention order against you, would be asleep there with her young child in bed.  Although you did not break into the premises, you entered the premises in circumstances where you full well knew that you were not entitled to use a key to enter the premises.

26Your then-girlfriend gave evidence that you had been drinking at the time.  You were fully aware that you were the subject of an intervention order preventing you from attending at the premises.  Given that the complainant had an intervention order against you, you must also be taken to have been aware that she was in a vulnerable position. 

27You have been found to have had an intention at the time of entry to commit an assault on her.  In fact you did proceed to commit the assaults and make threats against her and her daughter.  I accept that the injuries sustained by the complainant were relatively minor, but the psychological impact must have been very significant.  The prosecution accepted that there was no evidence that the complainant's young child observed any of the fighting.

28An aggravating factor here is that at the time of the offending you were the subject of the intervention order in favour of the complainant and her daughter.  Notwithstanding that, you proceeded to attend the property, and assault and threaten her and her daughter.

29An additional aggravating factor is that at the time of the offending, you were also the subject of a community corrections order that had been imposed on 27 August 2014 for threats and assaults.  This was therefore further offending of a somewhat similar nature to the offending that you had been dealt with around six months earlier. 

30Overall, given the background between you and the complainant, this was an example of the offence of aggravated burglary of the mid-range of seriousness.  In relation to the separate presentment, the prosecution accepted that this was of a lower order of seriousness.  The actions taken were over a short period of time, they did not involve any threats to the proposed witnesses.  Whilst in the sweep of such offences of attempting to pervert the course of justice, it is matter at the lower end of the scale.  This, however, is still a serious offence, carrying a maximum penalty of 25 years' imprisonment, and was deliberate conduct by you in order to avoid being made responsible for your conduct on that evening.  Your conduct strikes at the heart of the criminal justice system.

Victim impact statement. 

31The complainant has filed a victim impact statement.  The impact on the complainant is relevant to the seriousness of the offending here.  In her VIS, she indicates that your offending has affected a big part of her life, but also that of her daughter.  Her daughter now has to undergo counselling and has nightmares.  The advice is that her daughter may take some time to get over the event.  Further, the complainant says that she feels helpless because of what occurred.  She says that she has been the subject of 18 months of stress, depression, anxiety, fear and being scared. 

32It is clear from the VIS that your offending has had a significant impact on the complainant, and this is relevant to the seriousness of the offending here.

Prior convictions

33You are now aged 34 and have admitted a criminal record commencing when you were aged around 18.  As your counsel put on the plea, many of the offences could be described as "street offences", and related to your long-standing problems with alcohol.  Notwithstanding this, you do have convictions from the St Arnaud Magistrates' Court on 20 October 2011 for threat to inflict serious injury, resist police, and behave in an offensive manner in a public place, where you were placed on a 14-day suspended sentence.

34On 8 March 2012 at St Arnaud Magistrates' Court, you were placed on a six-month suspended sentence for indecent assault.  You contravened that sentence and were required to serve it.

35On 27 August 2012 at the Horsham Magistrates' Court on counts of threatening serious injury, refusing to leave a place after warning, unlawful assault and aggravated assault of a female, you were placed on a 12-month community corrections order.  The terms included assessment for alcohol abuse and mental health treatment.  This offending, as I have indicated, breached that community corrections order.

36From the summary of the matter it appears that the offending arose out of a drunken argument and one of the complainants was an ex-partner of yours. 

37You have two prior convictions for making threats and a number of convictions for assault.  In the event that you are sentenced to a term of imprisonment for the threat to kill the complainant, then for the purposes of sentencing for the threat to kill her daughter, you are to be sentenced as a serious violent offender.

38Overall, your prior convictions have relevance here in that you have not responded to suspended sentences and community corrections orders in the past.  This is relevant to specific deterrence and your prospects of rehabilitation.

Your personal circumstances

39Your personal circumstances were outlined on the plea and are set out in a report from Dr Leon Turnbull, consultant psychiatrist.  As I have indicated, you are aged 34 and were brought up in the Hallam area.  You have a brother who lives in the south-eastern suburbs of Melbourne, and your parents are still alive and supported you in Court. 

40You left home at age 13 and lived with your grandmother.  You had difficulties in school, and spent some time at the Dandenong Special School, where you had an integration aide.  You left school and spent a year at the Dandenong TAFE.  This was the last time you undertook formal education.

41You worked in various occupations, including in house demolition with an uncle, and as a slaughterman.  About seven or eight years ago, you suffered a back injury in the course of your employment, which makes it difficult for you to work in labouring-type activities, and you are required to take pain relief.

42You have had significant problems with alcohol from your early teens until your late 20s, as is evidenced from your criminal history, and from what you have told various counsellors in material that was put before me on the plea.  You have engaged in binge drinking and this has then led to aggressive behaviour, leading to offending, up until and including the commission of these offences.

43You were supported in the court on the plea by your girlfriend Ms Dempsey, and a number of other friends and family.  You are the father of six children, the oldest of whom is age 13.  You also have three other children with your former partner Tara, who lives in Warragul.  You have been seeing them on a fortnightly basis when you have not been on remand.

44In addition, you have another child, Dunstan, age four.  You have had no contact with his mother since he was about two months old, and you have been effectively been the carer of him in conjunction with your mother.  The DHS has sanctioned this informal arrangement. 

45In addition, the complainant in this matter fell pregnant to you, but not surprisingly, it appears, you have had nothing to do with the child. 

46In 2007 you were dealt with in this Court on two counts of sexual penetration of a child under the age of 16, and were placed on a community-based order for two years.  This was part of a justice plan.  From the sentencing remarks, it appears that you have been identified as having an intellectual disability from early days, as well as having at one stage been prescribed medication for ADHD.  The extent of your disability is not fully before me.  I note however, that a psychiatric report of Dr Turnbull indicates that your verbal skills were somewhat above the average of those who he assesses.

47On his clinical testing, your intellectual disability would be in the mild range.  He was of the view that impulsivity and judgment were not obviously affected by your intellectual deficits, although a more precise assessment would require formal testing.

48Your counsel did not specifically rely on this report.  The report notes that the consumption of alcohol was far more relevant in terms of lessening inhibition than any mild or subtle intellectual deficit. 

Prospects of rehabilitation

49I am required to assess your prospects of rehabilitation.  Your counsel submitted they were good given the reports of the CISP program and your family's support.  Since the offending, you have undertaken programs both whilst on remand and also an alcohol treatment program, and a drink-driver program.  Those various reports indicate that in that period, you did take significant action to engage with alcohol counselling and men's behaviour change program, as well as psychological counselling.

50In addition, from the reports of your engagement with the CISP program, you have achieved some insight into the underlying causes of your offending, being problematic use of alcohol, and have expressed a desire to change your behaviour.  I have considered each of the reports submitted. 

51I have also considered a number of personal letters filed on the plea, and a letter from you admitting that it was wrong to go into the house that day and indicating you have insight into your problems and wish to go forward and lead a productive life.

52All that material does attest to you having some insight into your problems, and a willingness to seek to address them.  It remains to be seen whether without a coercive sanction you will be able to continue to address the problems you have with alcohol and violence.

53Whilst I accept you have some insight into your past behaviour, the fact remains that you pleaded not guilty to your conduct on the morning of 10 February, and thus full insight and remorse remains incomplete.  Overall, given your failure to respond in the past to community corrections orders, I would not rate your prospects of rehabilitation as other than guarded.  I commend you for your progress that you have made already, but given your past, you have a relatively difficult road ahead.

Sentencing submissions

54The major thrust of your plea by Mr Bourke was that the court would impose a rehabilitative disposition.  In particular, relying on the case of Boulton, your counsel sought a period of imprisonment followed by a community corrections order.  Reliance was place on the progress on the CISP program, and on this basis it was submitted that a combination sentence would meet all sentencing objectives in these circumstances.

55In addition, it was put that you have support mechanisms in terms of rehabilitation in the sense that you have your children, plus Dunstan, your young son, who you are seeking to have full custody of.  You also have the support of your girlfriend, and are seeking to build a new life with her.

Purposes of sentencing

56The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances, and those of the victims, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

57Here, the learned Crown prosecutor sought an immediate custodial sentence. 

Sentencing considerations

58I have been provided with a number of sections from the Sentencing Manual dealing with aggravated burglary, as well as three cases in the Court of Appeal that involved intimate relationship aggravated burglaries.  I was also provided with the relevant sentencing snapshot, no.184. 

59The prosecution submission was that a combination sentence as sought by your counsel was outside the range.  In submissions, the learned Crown prosecutor did not direct the Court to any directly comparable case, pointing out that each case has its own features.  The crime of aggravated burglary can be committed in a wide variety of circumstances, as is shown by the wide range of sentences that have been considered by the Court of Appeal.

60Thus, in each of the three cases submitted by the prosecution, Whiteford, Secombe and Evison, the prisoner pleaded guilty, yet in each case the prisoner was armed.  There were also, of course, distinguishing personal features of the relevant offender.  The sentence for aggravated burglary in each case was respectively five years as an aggregate sentence in Whitford, three and a half years in Secombe, and four and a half years in Evison.

61Sentencing for aggravated burglary must take into account that in the case of Hogarth the Court of Appeal indicated that in relation to confrontational aggravated burglary, current sentencing practices were seen to be inadequate.  In the case of Anderson [2014] VSCA 255, the Court of Appeal indicated that the principles of Hogarth are also applicable to intimate relationship aggravated burglaries.  The maximum penalty for aggravated burglary is 25 years' imprisonment, and this must be seen as a yardstick for fixing any sentence.

62I have indicated earlier that I would categorise the aggravated burglary here as in the mid-range of seriousness.  I must be careful not to ensure double punishment for the offences committed upon your entry.  In sentencing you, I must have regard to the comments that the Court of Appeal has made on a number of occasions about the scourge of domestic violence, and the need to ensure that family violence intervention orders are respected, and that ex-partners are entitled not to be assaulted in the dead of night in their homes by aggrieved ex-partners.

63In sentencing you for the offence of aggravated burglary, considerations of general deterrence and denunciation are thus very salient.  Similar considerations apply to sentencing for the two counts of common law assault and making threats to kill.  A signal must be sent that this sort of post-relationship breakdown conduct is utterly unacceptable and will not be tolerated. 

64Specific deterrence is also a consideration in sentencing here given your failure to respond on previous occasions, and your prior convictions.  It is however, also in the community's interest that you be rehabilitated, and as I have indicated, I regard your prospects as guarded.

65In sentencing you here I must also have regard to the separate offending constituted by the separate presentment where you pleaded guilty to an act tending to pervert the course of public justice.  I give you credit for your early plea on this separate offence.  You have facilitated the course of justice, and your early plea is evidence of remorse for this aspect of your conduct. 

66While your actual offending for this offence is on the lower range of seriousness, the sentence of the court must denounce your conduct and emphasise general deterrence.  The maximum penalty for pervert the course of justice is 25 years' imprisonment.

67I have carefully considered all the submissions made on your behalf and reached a conclusion that a combination sentence is not appropriate, and that you must be sentenced to a head sentence with a non-parole period.  In fixing the non-parole period, I have considered the progress that you have made thus far, and fixed a period appropriate to your overall offending before which you be eligible to serve the balance of your sentence in the community.

68In relation to the sentence on Count 4, I declare that I will sentence you as a serious violent offender.  As submitted by the learned Crown prosecutor, this means that protection of the community must be the principle purpose for which the sentence is imposed.  A disproportionate sentence has not been sought by the prosecution.  There is a presumption of cumulation in relation to that sentence.

69Having regard to consideration of totality, and the fact that the threat was made to both the complainant and the daughter at the one time, I do not regard it as appropriate to order full cumulation.

70Overall, your conduct on that night was totally unacceptable and I strongly condemn it.  Your conduct in breaching the intervention order, bursting into the bedroom and proceeding to assault and threaten the complainant and her daughter was totally unacceptable, and is to be strongly condemned.  For you to then seek to have your new girlfriend and her mother give false statements in order to provide you with a defence to the charge was also totally unacceptable and is to be condemned.

71Could you please stand? 

The sentence of the court is as follows.

72On Charge 1, the charge of aggravated burglary, you are sentenced to three years and nine months' imprisonment.  This is a base sentence.  On Court 2, common law assault, you are sentenced to six months' imprisonment.  On Count 3 of making a threat to the complainant, you are sentenced to eight months' imprisonment.  On Count 4, making a threat to her daughter, you are sentenced to eight months' imprisonment.  That is the charge that I must sentence you on as a serious violent offender.  On Count 5 on the charge of common law assault, you are sentenced to six months' imprisonment.  On Count 9A, the alternative count of contravening a family violence order, you are sentenced to two months' imprisonment.  On Count 9B, the further charge of contravening a family violence order on 10 February, the night of the entry, you are sentenced to six months' imprisonment.  On the separate presentment of attempting to pervert the course of justice, you are sentenced to ten months' imprisonment.

73I direct the following cumulation on the base sentence:  two months on Count 2; four months on Count 4; three months on Count 9; and six months on the separate presentment.  This makes a total effective sentence of five years' imprisonment.  I direct that you serve a non-parole period of three years before being eligible for parole. 

74I declare that I have sentenced you as a serious violent offender on Count 4.  I declare that you have served 184 days of presentence detention. 

75Any other matters, Mr Prosecutor?

76MR LIASKOS:  No, Your Honour, that is all.

77HIS HONOUR:  All right, I want to thank counsel for their assistance on the trial and on the plea.  And I will just stand down temporarily.

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