Director of Public Prosecutions v Dyson

[2019] VCC 1106

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-00873

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL DYSON

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	29 October 2019
DATE OF SENTENCE:	10 March 2020
CASE MAY BE CITED AS:	DPP v Dyson
MEDIUM NEUTRAL CITATION:	[2019] VCC 1106

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. A.J. Moore	Office of Public Prosecutions
For the Accused	Mr. J. Barrera	Stary Norton Halphen

HIS HONOUR:

1Paul Dyson, you have pleaded guilty to a charge of sexual assault.  The single charge involves the rolling up of three incidents of touching the victim on 9 November 2018. 

2On that day, you and the victim were at a men's group program.  You have participated in that group for over five years; the victim, for a year.  You knew him, and as his victim impact statement makes clear, he considered you a friend and he looked up to you.  Both of you have intellectual disabilities. 

3What you did was firstly put your hand down the back of the victim's pants and fondled his buttocks.  You then made suggestive sexual remarks to him about wanting to see his penis.  You had, on earlier days, spoken to him about having sexual encounters, but he had firmly rebutted those.

4So to return to the day, after making suggestive sexual remarks you then put your hands down the front of the victim's pants, fondling his penis.  You later rubbed his penis over the top of his pants.

5This crime has had a significant adverse impact on the victim and his family.  The prosecutor accurately described it as devastating.

6Courts have come to learn that all sexual offending has dreadful and often long-term impact on victims.  That is so, even if the circumstances, once given a measured assessment, mean the offending is considered at the lower end of the spectrum of offences.  For the victim, the impacts are profound.

7The victim, in his victim impact statement, expressed his confusion as to why you, a person who he thought was a friend, could do this to him.  He, himself, feels guilty, though plainly you are the only one at fault, not him.

8He has lost his sense of trust in people and wants only to be with his mother.  He does not feel like he was before.  He is now angry, scared and flat. 

9His mother, who has no doubt endured a lot over the years, has had to watch her son struggle and regress.  Her son was working towards greater independence but that has been completely reversed.  She finds it dreadful that her son speaks of suicide.  It breaks her heart to see her son who was making progress have to go through what he has, following your crime.  She finds her own life hard to cope with.

10So too, the victim's sister, who also despairs that her brother has spoken of suicide.  She usually can talk to her brother and help him cope, but this crime has meant she cannot lift her brother's spirits.  She notes how her mother has found things so much harder to bear.  The impact of your crimes is wide-reaching. 

11It is important that the sentencing process also considers the social rehabilitation of the victims.  I have, as I must, taken the awful impact on the victim and his family, of your selfish crimes.

12In assessing the gravity of your crimes, what is prominent is that the victim was a vulnerable man.  He had expressed his disinterest in your sexual approaches, but you just ignored all that. 

13As to your personal circumstances, you are now 50.  As mentioned, you have prior convictions for sexual assaults.  In 2005, you were, without conviction, placed on a 15 month community based order for a charge of indecent act with a child under the age of 10.  I have read the brief summary of the circumstances of that offence. 

14As part of your community based order, you were put on a justice plan.  A condition of the community based order was that you were to undergo assessment and intervention as directed by the community corrections officer in consultation with the Sex Offender's program staff.  You were required to be on the Sex Offender's Register.

15In 2009, you were put on another community corrections order with a justice plan, this time for two years for stalking and using the telephone to menace.  Again, I read the brief summaries of these offences. 

16They too, were selfish; indeed sexually distressing sexual behaviour that brought significant ongoing distress to the victims. 

17You breached this community corrections order a number of times, resulting in the order being varied, mostly to reduce its length.  You were also sentenced to prison for a sexual offence in 2011.  It was converted into a suspended sentence of imprisonment on appeal to the County Court.  You breached that suspended sentence in 2016, but no further gaol was imposed.

18You have been before the Magistrates' Court a number of times for failing to comply with obligations you have as a registered sex offender.  These have resulted in fines.

19In addition to assessing the gravity of your offence, I must also assess your moral culpability.  That matter is very much intertwined with your intellectual disability. 

20You have had a life-long intellectual disability, attending special school in Geelong, but gaining little from all of that.  You have been formally recognised by Disability Services as eligible for disability services due to your intellectual disability, since 2005.

21The most recent report from the neuro-psychologist, Mr Jackson, fixes your IQ at 61.  You function at a low-level and although you live independently, you require assistance with ordinary adult tasks.  You have good friends that have assisted you, as well as funding from the NDIS.

22Your friends wrote a letter that I have read, reaffirming that they will, to their credit, continue to help you upon your release.

23You have not gained a great deal, if anything, from the counselling that you have been provided, in relation to your previous offending.  This is so, notwithstanding the efforts of the well-known psychologist, Ms Catherine Leigh-Smith, who specialises in dealing with men with intellectual disabilities who have psycho-sexual problems and crimes.

24For my part, Mr Dyson, you should engage with such counselling, to try and gain some insight into what you are doing. 

25The High Court in Muldrock made clear that an intellectual disability such as yours operates in significant ways in respect of sentencing.  Most importantly, it operates to reduce moral culpability. 

26This means that the weight to attach to denunciation and thus, to punishment, must be significantly moderated as a consequence of who you are with your intellectual disability. 

27Also, by reason of your intellectual disability, you are not an appropriate vehicle for deterrence to others.  This ordinarily very weighty matter must be appropriately moderated, though not eliminated.

28As to deterrence to you, given your poor history of prior like-offending, that matter may, in other circumstances, be very important, but given your intellectual disability and your lack of insight, there is little point in giving weight to this sentencing purpose.

29Your limited capacity means that you cannot properly absorb and apply to future conduct, sentences imposed that seek to deter you.  That said, this is the first time that you have been in prison and it is hoped that it may have a more dramatic impact upon you.

30Your intellectual disability gives rise to other important considerations in respect of the type of punishment.  As an overview; given what you did and my analysis of this offending, it does fall, as the prosecutor indicated, towards the low end on the spectrum. 

31But the impact, and I have emphasised this, the impact on the victim and his family is considerable.  I also consider your prior history and, the all-important significant intellectual disability. 

32Taking all these things into account, I would not necessarily have been inclined to impose the punishment of last-resort, being imprisonment.  I do not consider such harsh punishment to be necessarily just or appropriate just because there seems to be no other alternative.

33However, you have, in fact, been in prison for now about seven months.  You have not coped well at all in prison, as the report of Mr Jackson makes clear, together with the material secured from Justice Health.  It is a factor that I must take into account, that is, whether prison would weigh more heavily on you because of your intellectual disability.  Clearly it would, and has. 

34The sentencing dilemma is whether any more punishment, which emphasises your rehabilitation, is appropriate; that is, punishment by way of programs or counselling. 

35You have been on justice plans and they have not always worked out, if at all.  Thus, any justice plan compelling rehabilitation programs will, in fact, operate as a punishment and highly likely to be met with no cooperation and be swiftly breached. 

36I must say that I was at first surprised this matter was not dealt with in the Magistrates' Court and many months earlier, but given it is before me now and you have done seven months' gaol, I am of the view that this term is enough. 

37I do not ignore that you present as a risk, but warehousing you, with your intellectual disability which makes it difficult for you to control your behaviour and impulses, is not an appropriate punishment.

38But a question remains; is whether a longer sentence with a non-parole period is just and appropriate.  In considering such a sentence, I must always be mindful that you may do each day of the head sentence that I impose. 

39I have not referred, at length, to the question of protection of the community.  The need for protection of the community from your sexual offending, your lack of impulse control, is plainly an important consideration.  I must ensure that I do not, however, impose a disproportionate sentence solely to ensure ongoing protection. 

40However, that said, the Court of Appeal in the important decision of Boulton & Ors said the following:

'First, the principle of proportionality permits the fixing of a sentence by reference to all of the purposes of punishment; retribution, denunciation, specific deterrence, general deterrence and protection of the community.'

41The principle of protection of the community and proportionality requires there is a limiting consideration and it is this: an important qualification to the first proposition about proportionality, is that I can impose a longer sentence merely for the purposes of protecting society.  That is, in fact, what I intend to do. 

42So considering this important qualification to the principle of proportionality, I am of a view that a sentence with a non-parole period is appropriate.  Can you please stand, Mr Dyson. 

43For the offence of sexual assault upon the victim, I impose the sentence of 13 months, and I fix a non-parole period of seven months.  The time that you have served in custody thus far is 214 days?

44MR BARRERA:  Yes, Your Honour.

45MR MOORE:  Yes.

46HIS HONOUR:  That figure having been reckoned, I now declare that it is part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so that the prison authorities are well aware that you have served 214 days of the sentence that I have just imposed, which is at, or just beyond the non-parole period.

47What I urge, for my own party is, that assistance be provided to ensure that parole is considered promptly.  Also I hope that the NDIS and Disability Services swiftly move to re-establish services upon your release.  The community will be further protected if you are housed, monitored and supervised upon your release.  Is there any other further orders required?

48MR MOORE:  No, Your Honour.

49MR BARRERA:  No, Your Honour.

50HIS HONOUR:  Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of two years with a minimum of one year. 

51MR MOORE:  If Your Honour pleases. 

52MR BARRERA:  If Your Honour pleases.

53HIS HONOUR:  Thank you.  Mr Dyson, you now will be taken back to the prison.  As far as I can say it, please get some assistance, whatever's required, so that your matter can be assessed by the Parole Board.  It is a matter for them, not me, but if you are supervised upon release, it would be a better outcome.  Thank you.  You can head downstairs. 

54MR BARRERA:  As Your Honour pleases.

55HIS HONOUR:  Thank you for your assistance Mr Barrera in a difficult matter. 

56MR BARRERA:  Thank Your Honour.

‑ ‑ ‑