Director of Public Prosecutions v Hurren

[2021] VCC 1183

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00566

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYLER HURREN

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2021
DATE OF SENTENCE:	19 August 2021
CASE MAY BE CITED AS:	DPP v Hurren
MEDIUM NEUTRAL CITATION:	[2021] VCC

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Assault with intent to commit a sexual offence – Brazen and violent attack on victim in park – Relatively serious example of the offence – Youth – Disadvantaged background – Cognitive difficulties – Verdins – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 s 42(1); Crimes Amendment (Sexual Offences) Act 2016; Bail Act 1977 s 30B; Sentencing Act1991 ss 6AAA, 18.

Cases Cited:DPP v Milson [2019] VSCA 55; Worboyes v The Queen [2021] VSCA 169; Pitone v The Queen [2017] VSCA 3; Marrah v The Queen [2014] VSCA 119.

Sentence:                  Imprisonment for a period of 3 years with a non-parole period of 20 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms H Baxter	Office of Public Prosecutions
For the Accused	Ms M O’Brien	Stary Norton Halphen

HIS HONOUR:

Introduction

1Tyler Hurren, you have pleaded guilty to one charge of assault with intent to commit a sexual offence contrary to s 42(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, which carries a maximum penalty of 15 years imprisonment (Charge 1).

2You have also pleaded guilty to the related summary offence of commit indictable offence whilst on bail contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment (Summary Charge 5).

3You have admitted your prior Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5At the time of the offending, you were 20 years of age, unemployed and believed to be couch surfing.

6The victim in this matter was 21 years of age at the time of the offending.  She had recently moved in with her aunt and uncle in Patterson Lakes due to the COVID lockdown in the second half of 2020.

7The victim was an overseas student from Singapore who had been studying Performing Arts at the Victorian College of the Arts.  She has since returned to Singapore.

8On 30 July 2020 at approximately 8.30 am, the victim left her uncle and aunt’s house and walked towards a local reserve in Patterson Lakes.  When she arrived there, the victim noticed you in front of her walking on the same path.  You looked back at her as she was walking.

9You were wearing all black, with a hoodie over your head and a facemask, which was mandatory in Victoria at the time.

10The victim put her headphones in and continued walking.  At some point, the victim lost sight of you.  There were no other people in the park at the time.

11You then sat down on a bench which was on the path ahead of the victim.  As the victim got closer to you, she could see that you were masturbating yourself through your clothing whilst watching the victim.

12You got up and immediately started to move towards the victim whilst still masturbating yourself.

13The victim did not have a chance to run away.  You grabbed the victim from behind.  The victim was wearing a face mask at the time.  You put your left hand over her mouth, scratching her face in the process and put your right forearm around her neck.

14You forced the victim to the ground.  The victim observed that you were very strong.  She was so terrified that she wet herself.  You stood over the victim and held her down.  You repeated, ‘Do you want to fuck me?’ three times.

15The victim reached for her phone in her back pocket.  You noticed this and immediately ran away.  As the victim reached into her pocket, she accidentally took a screen shot on her phone.  The time of the shot was 9.21 am.  It is these facts that give rise to Charge 1, assault with intent to commit a sexual offence.

16The victim yelled out for help and ran towards the closest houses, running for as long as she could without looking back.  When the victim got home, she immediately told her aunt and the police were called.

17Police collected CCTV from the surrounding areas which confirmed that the victim had been walking approximately 10 seconds behind you, as you entered the reserve.

18The victim provided police with a composite sketch of you.

19On 8 August 2020, after being unable to identify you, police released the CCTV footage to the media.  A neighbour provided police with footage depicting you leaving your home in Patterson Lakes at 9.17 am on 30 July 2020.

20On 14 August 2020, police executed a search warrant at your home.  Occupants of the address identified you.  You had been staying with them for the previous few days.   Police became aware that you had since checked yourself into a drug rehabilitation clinic in Dandenong.

21Police located and arrested you on 17 August 2020, at a housing refuge in Dandenong and you were remanded in custody.  Police located items of clothing consistent with clothing worn by you on 30 July 2020.  Your DNA was located on the victim’s facemask.

22You were interviewed by police and provided a ‘no comment’ record of interview, except for when you were presented with CCTV still photographs, and denied that they depicted you.

23You were on bail at the time of the offence which gives rise to Summary Charge 5, commit indictable offence whilst on bail.

Nature and gravity of the offending

24Assault with intent to commit an indictable offence is an inherently serious offence as recognised by the maximum penalty of 15 years imprisonment imposed by Parliament.

25In this instance, your offending was brazen and violent.  You attacked a young woman in broad daylight who was simply walking in a park – a circumstance where she should be entitled to feel safe.  You forced her to the ground, you covered her mouth and you expressed a desire to take part in a sexual act with her.  This was undoubtedly a terrifying experience for the victim, the trauma of the event causing her to wet herself as you attacked her.  Further, at the time of the offending, you were on bail and you were subject to two separate community corrections orders, both aggravating features.[1]

[1] DPP v Milson [2019] VSCA 55 at [66].

26In my view, in all the circumstances, your offending represents a relatively serious example of this offence.

Victim impact statement

27A victim impact statement was tendered on the plea.  Following your assault, the victim ceased her studies and relocated back to Singapore.  She could not bring herself to tell her family of the details of the offending, which has left her feeling isolated and deprived of proper support and understanding from others.  She states that your offending aggravated her pre-existing issues with anxiety and affected her mood, energy and stamina.  She describes the flow on effect this has had on her acting classes, acting being passion of hers that previously brought her joy and confidence and was the subject of her study in Australia.

28The long term effect of your offending on the victim is eloquently expressed as follows:

'Those months of facing trauma, anxiety and fear has left an indelible effect on me. It infuriates and upsets me to know that such a brief moment in my life, has caused many months of suffering and left a permanent scar within me.  I may have come to a place of healing and strength at this point in my life, but it was at the cost of my happiness, peace and safety'.

29I take the contents of the victim impact statement into account.

Personal circumstances

30You are 21 years of age.  You grew up in the Frankston area.  Your father was a violent man and a drug user.  Your parents separated when you were around five and your mother’s subsequent partners were often violent.  You had a turbulent home life and moved between your mother, grandmother and occasionally your father, due to your behavioural issues which began when you were at kindergarten.  You have a younger half-sister and half-brother.  Your mother has recently been incarcerated and also has a long history of drug use.  You have regained contact with your half-sister.

31You attended three different primary schools due to being expelled from two for violent behaviour.  You also experienced learning difficulties, anger management issues and presented with a language disorder, but were assessed not to have an intellectual disability.  Around the age of seven, you were diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), for which you have been medicated.  At the age of eight you commenced medication in relation to high cholesterol, due to being at risk of a heart attack.  At a similar age, you made the first of two attempts on your life.  You completed secondary school until Year 10, leaving Westernport Secondary College midway through Year 11.  You have no history of employment and have been in receipt of a Disability Support Pension for a number of years.

32Around the age of 16, you began smoking cannabis and experiencing depression after your younger half-brother with whom you were very close, was taken into foster care in Perth.  You were effectively homeless or couch surfing with friends from around this age.

33In around 2018, your life became particularly unstable and it was at this point in your life that you began committing criminal offences.  In 2018, you made another attempt on your life, by jumping in front of a train and you were involved in a serious motor vehicle accident when a drug dealer, who you had robbed, deliberately ran you over.  You lost consciousness and report that you sustained spinal fractures and head injury.  You were hospitalised, underwent rehabilitation on your own and still experience back pain.  You began using methamphetamines, as you found it assisted your concentration.  Leading up to the offending, your use of cannabis and methamphetamines had increased.

34You began a relationship with your current partner prior to being remanded.  She has a three year old son and prior to your arrest, you had begun to form a relationship with him.  Since being on remand you have had daily telephone contact with your partner, however, you find video visits too stressful.  Your partner has encouraged you to cease drug use and you are motivated to stay drug free to preserve the relationship.

35Since being in custody, you have been medicated for your high cholesterol and depression, but have not had access to your ADHD medication, which has impacted your ability to cope in prison.  A further difficulty you have faced in custody is being targeted by other prisoners, which on one occasion led to a physical altercation and you being transferred to another prison.  Nevertheless, you have been working in prison building furniture and despite restrictions on programs due to the pandemic, you have managed to complete a six hour drug and alcohol course and a course to address depression.  You are currently on the wait list for two further drug and alcohol courses.

36You have been referred to the Intensive Support at the Department of Families, Fairness and Housing, which is designed to assist people with disabilities who have complex support needs, once they have been granted access to the National Disability Insurance Scheme (NDIS).  It is hoped that you will be granted access to the NDIS and that the NDIS funding will assist you in obtaining appropriate supports and services.

37A comprehensive report dated 9 November 2021 was prepared by
Martin Jackson, Consultant Clinical Neuropsychologist, and tendered on the plea.  Mr Jackson outlines your personal, behavioural and developmental history and the results of various neuropsychological tests.  Mr Jackson also had the benefit of a number of historical reports prepared by various mental health professionals as outlined in the report.

38In Mr Jackson’s opinion, you have had a life-long problem with anger control.  You were also diagnosed at a very early age with ADHD and have been treated with medication for most of your adult life.  Thus, in Mr Jackson’s opinion, given the early age that your issues with anger management and behaviour commenced, it is likely that the primary basis of your behavioural difficulties is your ADHD.  Mr Jackson was unable to say with certainty that you suffer an acquired brain injury, but is of the opinion that it is likely, given your performance on testing, compared with how you performed in 2009.  Ultimately, as a result of the combination of your poor behavioural control, Mr Jackson is of the view that you are a high risk of reoffending.

39A further report dated 17 March 2021 prepared by Mr Jackson was also tendered on the plea, after he was provided with the details in relation to this matter.  You confirmed to Mr Jackson that at the time of this offending, you were using marijuana and ice.  Mr Jackson did not conduct any further testing on this occasion and confirmed his opinions expressed in his report of 9 November 2020.

Sentencing considerations

40Ms O’Brien, who appeared on your behalf at the plea, outlined a number of factors in mitigation.  First and foremost, is your plea of guilty.  The matter resolved in January this year at a committal mention.  An application for summary jurisdiction made on your behalf was refused and the matter was committed to this court by way of straight hand-up brief.  Your plea of guilty carries significant utilitarian value, as it has spared the time and expense of a jury trial and significantly, has spared the victim from having to give evidence and relive the trauma of the event.  Your plea carries even greater weight in the current circumstances, where the court is burdened with delays as a result of the pandemic.[2]  I therefore take your willingness to facilitate the course of justice into account in your favour.

[2]Worboyes v The Queen [2021] VSCA 169 at [39].

41Ms O’Brien also highlighted the fact that you were 20 years of age at the time of the offending and are now 21.  She referred to the observations of Priest J in Pitone v The Queen, [3] that the level of maturity and functioning is not only to be assessed by chronological age, but also by reference to functioning at the time. In this instance, the opinion of Mr Jackson is that you are impaired in areas of intellectual ability, processing speed, multiple task processing, verbal abstract reasoning and behavioural control.  I accept the conclusions of Mr Jackson and I take these matters into account as part of the assessment of your immaturity. That said, while I accept the well settled principles in relation to young offenders, and that they do have application in your case, I must weigh those considerations with the seriousness of the offending in this instance.

[3] [2017] VSCA 3 at [19].

42I take into account your disrupted and disadvantaged background as detailed in the reports and submissions made on your behalf.  As was sensibly conceded on your behalf, your childhood disadvantage does not displace the sentencing purposes of deterrence and just punishment.  Nonetheless, your disrupted and disadvantaged background is a relevant sentencing consideration, that must be given weight in the sentencing calculus.[4]

[4] Marrah v The Queen [2014] VSCA 119 at [16].

43As to the application of Verdins principles, I accept that given your cognitive difficulties, including your longstanding ADHD, prison will be more burdensome for you than for someone not so afflicted.  However, in my view, the evidence does not support a causal connection between your cognitive difficulties and the offending.  You were significantly affected by your drug use at the time of the offending, to the point that you do not have a memory of it.  Nonetheless, as Verdins principles apply also at the time of sentence, and having taken into account your complex cognitive deficiencies that continue to afflict you, in my view, general and specific deterrence can be moderated to a limited degree.

44General deterrence is, however, not extinguished as a result of your youth, your disadvantaged background or your cognitive afflictions.  A message must be conveyed that conduct such as yours, will not be tolerated in our community and will inevitably result in imprisonment.

45Your prospects of rehabilitation are of course dependent on a number of matters. You will need supports in the community and to that end, you have now the benefit of assistance in obtaining support through the NDIS scheme, which is a positive step.  More critically, you must remain drug free.  Your cognitive disabilities and disadvantaged background are difficult enough for you to deal with, but in my view, your risk of reoffending will not be overcome, if you revert to drug use upon your release.  As such at this stage, your prospects must be viewed cautiously.

46Finally, I take into account the fact that your time in custody has been particularly onerous, as you entered the prison system during the COVID-19 pandemic. Prisoners are subjected to lockdowns, quarantine periods and restrictions on personal visits, education and rehabilitative programs.  Given the current state of the virus in the community, restrictions may remain for some time.

Sentence

47Mr Hurren, please stand.

48Tyler Hurren, on Charge 1, assault with intent to commit a sexual offence, you are convicted and sentenced to 3 years imprisonment.  On summary Charge 5, commit an indictable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment, which will be concurrent with the sentence on Charge 1. I direct that you serve 20 months before becoming eligible for parole.

49Pursuant to s 18 of the Sentencing Act1991, I declare that 366 days be reckoned as the period of imprisonment already served, under the sentence I have imposed.  That does not include today. 

50Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to a period of 3 years and 6 months imprisonment, with a non-parole period of 2 years. 

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