Director of Public Prosecutions v Woolhouse

[2021] VCC 91

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Restricted

Suitable for Publication

GENERAL LIST

CR-20-01400

Indictment No. L11740075

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEN WOOLHOUSE

---

JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2021
DATE OF SENTENCE:	11 February 2021
CASE MAY BE CITED AS:	DPP v Woolhouse
MEDIUM NEUTRAL CITATION:	[2021] VCC 91

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – Home invasion – Causing injury intentionally – Commit

indictable offence whilst on bail – Contravention of conduct condition of

bail – Plea of guilty

Legislation Cited:     Crimes Act 1958 ss 18, 77A; Sentencing Act 1991 s 16(3C).

Cases Cited:  Taleb v The Queen [2020] VSCA 329; Smith v The Queen [2020]

VSCA 165; Jackson v The Queen [2020] VSCA 95; DPP v O'Brien

[2019] VSCA 254; Hogarth v The Queen (2012) 37 VR 658.

Sentence:  Total effective sentence of 4 years and 3 months' imprisonment with a

non-parole period of 2 years and 6 months.

Section 6AAA declaration: 6 years' imprisonment with a non-parole

period of 4 years.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Solicitor for the Office of Public Prosecutions
For the Accused	Mr A. Halphen	Stary Norton Halphen

HER HONOUR:

1.Ben Woolhouse, you have pleaded guilty to four offences.  One charge of home invasion, one charge of intentionally causing injury, one charge of committing an indictable offence on bail and one charge of contravention of conduct conditions of your bail.

2.The two charges on the indictment were committed on 29 June 2020.  Your uncle had a dispute with a man named Gebhardt regarding some cannabis plants.  This dispute was ongoing for several weeks with your uncle making threats to Gebhardt over that time.  You were not part of that dispute nor were you involved in making the threats.

3.I was told by your barrister that on the night of 28 to 29 June 2020 you were at your uncle's home in Delahey, together with two other men.  Your uncle raised the idea that you should all go to Mr Gebhardt’s home.  You went along with this plan.  I note that the two houses are approximately 1.5 kilometres apart and the drive there would have taken only a few minutes.

4.At around 4.40 am Mr Gebhardt heard people talking outside his house.  He tried to turn on the light and discovered that there was no electricity.  He opened the front door and recognised your uncle standing at the end of the drive with another man.  Your uncle sprayed the front of Mr Gebhardt's house with a fire extinguisher.

5.You and one of the other men climbed over the side fence, broke a window and entered the house through the window.  You were not armed.  Mr Gebhardt had realised that you and the other man had broken in and he approached you.  You hit him to the head with a pole that you had picked up once you were inside.  Mr Gebhardt overpowered you and you called out to your uncle for help.

6.Your uncle entered the house and hit Mr Gebhardt on the head with a glass ashtray, then sprayed Mr Gebhardt with a can of capsicum spray.  You and the other offenders were able to flee.

7.Mr Gebhardt suffered lacerations to his left forehead region, near his hairline.  The extent of the injury caused by your blow with the pole, as opposed to the blow inflicted by your uncle, is not clear, but you have accepted that when you hit him you caused some injury.

8.Mr Gebhardt's neighbours heard the commotion and called the police. 
Mr Gebhardt did not initially tell the police that he had recognised your uncle, although he did so the next day.  At that time he also told the police that he had recognised you as 'Ben' and as the nephew of your uncle.

9.When the police processed the scene they found, amongst other things, a red cap which had your DNA on it.  Your photo was selected by Mr Gebhardt from an array of photos as an image of one of the offenders.

10.Mr Gebhardt made a formal statement around a month later; following which your uncle's house was searched at 6 am.  You were present at his house.

11.When you were interviewed by the police you denied committing these offences, describing the allegation as a fabrication.

12.As I said earlier, you have also pleaded guilty to two summary offences in addition to the home invasion and injury charges.  These are a charge of committing and indictable offence, the home invasion while you were on bail, and another charge of breaching residential and curfew conditions of your bail.  I turn now to your personal circumstances.

Personal Circumstances

13.You are now 32 years old.  Your counsel described your parents as "salt of the earth, kind, hardworking and devoted parents."  He did not raise anything in particular about your childhood but noted that you commenced using drugs when you were around 14 and 15, and that you started using heroin at age 17.  By the time you were 20 you were injecting heroin daily.

14.Despite the hold that your drug addiction has had on you, you were able to complete an apprenticeship as a boilermaker and to work in that field.

15.MR HALPHEN:  Your Honour, I'm terribly sorry to interfere.  I've just received a text.  Apparently Mr Woolhouse's father is unable to access the link.  He’d be assisted if the host was able to (indistinct words) back on.  I'm very sorry for interrupting you.

16.HER HONOUR:  I see that there's a Tim Woolhouse who's joined again.

17.MR HALPHEN:  I'll just double check.

18.HER HONOUR:  You can just double check.

19.MR HALPHEN:  I'm sorry, Your Honour.

20.HER HONOUR:  When you were around 25 your partner's infant child suddenly died in the night.  This was a shattering experience for you and the child's mother and that relationship did not survive.

21.Your first attempt at drug rehabilitation was in 2008, when you were around 20 years old.  You had a second admission for residential rehabilitation three years later and were commenced on methadone, which you continued to take from around 2011.  In 2016 you engaged in a rehabilitation program overseas.  In March 2020 this treatment approach was varied and you were commenced on Buprenorphine, with depot injections of that drug commencing on 1 April 2020.  After you were arrested and placed on remand I was told that you have continued to receive that treatment.

22.Your counsel noted that you have, in the past, had periods of abstinence from drug use and that these periods were associated with you working and remaining offence free.  He noted that you have strong family to support you and that your qualification and work history are positive factors and influences for you and the choices you will make in the future.

23.At the time of this offending you were associating with your uncle.  I was told that despite the treatment which was on foot for your heroin addiction you did engage in other drug use.  Your uncle was not a good influence upon you.  You fell in with his plan to go to Mr Gebhardt's home and you committed these offences.

24.Your criminal record includes six charges of theft and one of burglary between 2008 and 2011.  There are no court matters recorded again until 2016 and then, again, nothing until 2018.  In April 2020 you had two court appearances for which you received fines.

25.Three matters were relied upon in particular on your behalf, in addition to the matters set out in the written submission.

26.The first of these was the level of offending and your role in it.  Your barrister properly acknowledged that home invasion is a serious offence but pointed to a number of factors relevant to the assessment of the gravity of your conduct; characterising it as 'unsophisticated'.  I accept that you went along with the plan which your uncle developed.  There is nothing to indicate that your role was planned over any significant period of time, nor that you had any grievance yourself with Mr Gebhardt.  It was pointed out that the distance between your uncle’s and Mr Gebhardt's homes was short and the drive there a matter of minutes.

27.Despite not being the originator of the plan you actively participated in the home invasion and it was you and the other man who broke in whilst your uncle was utilising the fire-extinguisher out the front of the house.  On the other hand, you were not armed when you entered the house.  It does not appear that your co-offenders were armed either.  The injury charge appears to have arisen in the course of a fight inside the house.

28.The second matter raised was your plea of guilty.  I accept that you offered to plead guilty to these offences at the earliest reasonable opportunity.  This gives rise to significant mitigation of your sentence.  Your plea of guilty has facilitated the administration of justice and the practical benefits to the courts and witnesses are all the greater, given the restrictions upon the court's operations due to the COVID-19 pandemic.

29.Furthermore, you have accepted responsibility for your actions, which is relevant to your prospects for rehabilitation.

30.You were placed on remand in mid-2020, during a time when the experience of incarceration was made more difficult due to the pandemic.  All prisoners were required to undergo quarantine and no personal visits were permitted until late 2020.  Courses were limited and I was told that no rehabilitation courses were available to you whilst you have been on remand.  This period of remand would have been very difficult and I note that it was your first significant period of custody.

31.The third matter raised on your behalf is your prospects for rehabilitation.  Your counsel pointed to the limited nature of your criminal history and that you have no prior matters for violence.  He submitted that your ability to get your qualification and to work, in the face of your heroin addiction, shows you have a real capacity to get your life on track; especially in view of the support from your parents.  He pointed to the extensive efforts you have made in addressing your heroin addiction.

32.Whilst I accept that you do have prospects for rehabilitation you face some significant hurdles in that respect.  Your participation in this offending shows a lack of judgment and a lack of good sense.  Despite your progress in dealing with your heroin addiction you were associating with poor influences and still taking drugs.  You had had two court appearances several months before this offending and were on bail at the time.

33.I hope that this period of incarceration provides the wake-up call that you clearly need, that you reflect on the choices that got you here and that you make better choices in the future.

34.In sentencing you I am required to take into account the gravity of the offending and the need to deter others from committing such offending.  Home invasion carries a maximum penalty of 25 years' imprisonment.  It is a Category 2 offence, so that I am required by law to impose a sentence of imprisonment not combined with a community correction order unless an exception is made out.  Your counsel did not seek to persuade me that any of the exceptions applied in your case.

35.Intentionally causing injury carries a maximum penalty of 10 years’ imprisonment.  You hit a man on the head with a pole after you had broken into his house with intent to assault him.  Fortunately for you, the injury caused was not significant.

36.You voluntarily took part in a planned home invasion of a man with whom you had no personal grievance.  You and three other men went to the house during the night.  Whilst your participation was of relatively short duration - both in the lead-up and in the offending itself - you broke into Mr Gebhardt's home, with another person, with the intention of assaulting him.  Your offending was serious and warrants denunciation and just punishment.  The Court of Appeal has made clear that offending of this type can and will give rise to substantial sentences of imprisonment.

37.The sentence I will impose on the charges is intended also to deter you from committing offences in future.  I also take into account your prospects of rehabilitation and the fact that your rehabilitation will benefit not only you but the community as a whole.

38.Your barrister referred me to three cases; Taleb v The Queen [2020] VSCA 329, Smith v The Queen [2020] VSCA 165 and Jackson v The Queen [2020] VSCA 95.

39.In Taleb the sentence of three years imposed was less than it would otherwise have been taking into account the principal of parity.[1]  In that case the offender had entered with intent to steal and his co-accused was armed with a meat cleaver.

[1]Taleb v The Queen [2020] VSCA 329, [7].

40.In Jackson the appellant was 22 at the time of the offending.  The home invasion was put on the basis of an intention to steal, with Jackson carrying an axe and his co-offender the front forks of a bicycle.  The conduct inside the house by the accused was appalling, but, as Croucher AJA noted, the sentence for the charge of home invasion did not cover that conduct.[2]  The sentence imposed on the charge of home invasion in that case was four years.

[2]Jackson v The Queen [2020] VSCA 95, [8], [12]; compare Emerton JA at [3]-[4].

41.Your counsel submitted that the case of Smith was the most comparable to yours.  In addition to other matters Smith was sentenced to two years' imprisonment for a home invasion, committed in company, with intent to steal.  I note that it appears that the charge was put on the basis that a person was in the house, whether Smith knew it or not, and Smith had significant personal matters in mitigation which you do not have.  The Court, in that case, described the sentence of two years as 'lenient'.[3]

[3]Smith v The Queen [2020] VSCA 165, [44].

42.Each case must be decided on its own facts.  In your case the intention was to assault Mr Gebhardt but you were not armed and you were not the originator of the plan.  You did, however, agree to take part in a burglary and assault on a man during the night, in company with other offenders, in furtherance of your uncle’s grievance.  I am mindful of the guidance from the Court of Appeal as to the gravity of the offence of home invasion and the need for general deterrence when sentencing for that offence.[4]  In the case of Hogarth v The Queen the Court said:[5]

“Typically a home invasion involves multiple offenders entering a person’s home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong.  The entry of the offenders - acting in anger and often fuelled by alcohol - is itself a terrifying experience for the householder, irrespective of what may occur after entry.”

[4] See, for example, Taleb v The Queen [2020] VSCA 329, [23]; DPP v O’Brien [2019] VSCA 254, [4], [7].

[5]Hogarth v The Queen (2012) 37 VR 658, 659 [1].

43.Whilst you and your co-offender were not armed upon entry that characterisation by the Court of Appeal applies to your offending.

44.You have also been charged with committing an indictable offence on bail. I have not, therefore, treated the fact that you were on bail at the time as an aggravating feature of the home invasion and injury offences. Section 16(3C) of the Sentencing Act applies, subject to the application of the principal of totality.

45.On Charge 1, home invasion, you are sentenced to three years and nine months' imprisonment.

46.On Charge 2, intentionally causing injury, you are sentenced to nine months’ imprisonment.

47.On Summary Charge 2 you are sentenced to two months’ imprisonment.

48.On Summary Charge 6 you are sentenced to two months’ imprisonment.

49.The sentence on Charge 1 is the base sentence.  I direct that four months of the sentence imposed on Charge 2 and one month each of the sentences imposed on the summary charges be served cumulatively upon each other and upon the sentence on Charge 1.  This amounts to a total effective sentence of four years and three months' imprisonment.

50.I direct that you serve a period of two years and six months before becoming eligible for parole.

51.Pursuant to s.18(4) of the Sentencing Act 1991 (Vic) I declare that you have served 205 days of pre-sentence detention and I direct that this declaration be entered into the records of the court.

52.Pursuant to s.6AAA of the Sentencing Act I indicate that had you pleaded not guilty I would have sentenced you to a total effective sentence of six years with a non-parole period of four years.  Are there any other matters, Mr Devlin?

53.MR DEVLIN:  No, Your Honour.

54.HER HONOUR:  Mr Halphen?

55.MR HALPHEN:  No, Your Honour.

56.HER HONOUR:  Thank you.  We'll adjourn the court.

‑ ‑ ‑