Director of Public Prosecutions v Johnny Tyrrell (a pseudonym)
[2019] VCC 1259
•9 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHNNY TYRRELL (a pseudonym) |
---
JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 29 April 2019, 2 August 2019 | |
DATE OF SENTENCE: | 9 August 2019 | |
CASE MAY BE CITED AS: | DPP v Johnny Tyrrell (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1259 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Parker | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms S. Locke | Victoria Legal Aid |
HER HONOUR:
1 Johnny Tyrrell[1], you have pleaded guilty before me to four charges of theft, two charges of handling stolen goods, one charge of burglary, four charges of the aggravated offence of recklessly exposing an emergency worker to risk by driving, four charges of damaging property, one charge of conduct endangering serious injury and one charge of damaging an emergency services vehicle. You have also pleaded guilty to an array of summary charges which were uplifted for hearing in this court pursuant to s.145 of the Criminal Procedure Act. The facts underlying your offending are as follows.
[1] Johnny Tyrrell is a pseudonym.
2 On 20 March 2018, you attended a Coles Express Service Station in South Melbourne, driving a red Commodore with stolen registration plates. You filled up $39.36 worth of petrol and drove off without paying. These actions underlie Charge 1 on the Indictment, theft of petrol. You were disqualified from driving at the time and this underlies a summary charge of driving whilst disqualified. Charge 2, handling stolen goods, relates to the stolen registration plates that were on your car at the time.
3 On 24 March 2018, you stole a white 2016 Hyundai van from outside a house in Main Street, Bacchus Marsh. The van was worth $35,000 and contained numerous tools and an electric fridge. The van was recovered on 25 March, but the tools and fridge were missing. The van was forensically examined and your fingerprint was located. Those actions underlie Charge 3 on the indictment, theft, that being theft of the Hyundai van, and the tools and electric fridge it contained.
4 On 16 April 2018, you attended a BP service station in Bacchus Marsh and filled up your car with $40 worth of petrol and drove off without paying. Those actions underlie Charge 4 on the Indictment, theft of petrol. At about 10am on 22 April 2018, you and a co-offender, Jarrod Cann, went to a farming property owned by Mr Frank Ruffo at 96 Lawson Road, Merrimu, in company with an unknown female co-offender. You drove in a white Mitsubishi four-wheel drive which you parked behind a water tank, then you and Cann got out, wearing gloves and masks, and approached three large sheds situated on the property. I should add the whole of this was captured by security CCTV footage from cameras that had been installed by Mr Ruffo. The unknown female offender remained in the car throughout the entire incident. You and Cann searched the three large sheds before driving out in a Toyota Hilux ute, which contained a large amount of assorted tools and farming equipment. The two of you then parked the Toyota Hilux near the house on the property, got out, and broke into the house by bending up a sliding security door. Once inside, you used an angle grinder to open a gun cabinet in one of the bedrooms and stole two shotguns, as well as five luxury watches and $15,000 of cash from the master bedroom. You then went to the garage attached to the residence and stole a 2007 Holden sedan. Cann exited the house and drove away in the Hilux, followed by you in the Holden sedan, and the unknown female followed you in the Mitsubishi. The total value of the items stolen during this incident was $72,156. These actions underlie Charge 5 on the Indictment, burglary, and Charge 6, theft, that being of two shotguns, $15,000 in cash, the luxury watches, assorted tools, a Holden sedan and a Toyota Hilux.
5 Later that day, at about 5.00pm, police received information that the stolen Holden sedan had been seen at the McDonald’s carpark in Bacchus Marsh. Two police officers, Leading Senior Constable Wilson and Constable Granland, responded in a divisional van driven by Wilson. Wilson drove the divisional van to the exit of the McDonald’s drive-through, where she saw the Holden approaching the service window, and she saw that you were driving that car. Two other people, Shaun Duck and Samantha Lewin, were passengers in your car. Wilson parked the divisional van at the end of the drive-through in an attempt to block in the Holden. You then accelerated, causing the sedan to crash into the front of the divisional van. Wilson and Granland then got out of the car and drew their firearms after seeing you rummaging around in the vehicle and being aware that guns had been stolen from the burglary earlier that day. They gave directions for the occupants of the Holden to exit. These actions underlie charges 7 and 8 on the Indictment, which are each charges of the aggravated offence of recklessly exposing an emergency worker to risk by driving.
6 You ignored police directions and continued driving to evade them. During your escape, you mounted the pedestrian area of the McDonald’s store, colliding with a corner of the McDonald’s building and hit the divisional van twice more. On your way out of the carpark after pushing through the divisional van you also collided with a Hyundai wagon, which the driver, Debra Roerther, had positioned near the exit. These actions underlie Charge 9 on the Indictment, criminal damage of the police van, Charge 10, criminal damage of the McDonald’s building and Charge 11, criminal damage of the Hyundai wagon.
7 You then drove through a round-a-bout on the wrong side of the road, mounted a kerb and drove through a garden bed before coming to stop at the KFC carpark opposite McDonalds. Duck was arrested by Granland in the McDonald’s drive-through and Lewin was arrested by another police officer in the KFC carpark. You fled the carpark on foot and evaded arrest. These actions underlie Charge 12 on the Indictment, reckless conduct endangering serious injury. At the time of this incident, you were also disqualified from driving and those actions underlie a second related summary charge, driving whilst disqualified.
8 The Holden sedan was towed and examined, and clothing belonging to you matching the clothing you wore during the burglary, which as I have said was captured on CCTV, was located. A garage remote control belonging to Mr Ruffo was found in the jeans pocket, as was the mask and gloves that you wore during the burglary. Police had received information that, soon after the burglary, the Holden sedan was seen parked in the driveway at an address in Darley, where the property was unloaded from the boot and taken into the house. A search of that house at about 7.30pm on 22 April resulted in the location and seizure of items stolen during the burglary, they being a firearm case and a stock cut from one of the shotguns. Shaun Duck was living at the Darley address at the time and he made a statement to police saying you were a friend of his, and that soon after the burglary occurred, you picked him up from his home in the Holden sedan and drove him to an address in Sunshine. On return to his address sometime later, a soft brown case containing a firearm was taken from the boot of the Holden into the house and a friend of yours, that being Jarrod Cann, arrived and cut down the firearm in the shed.
9 At about 4.20pm on 26 April, a further search warrant was executed at an address in Sunshine, where Cann had been residing, and police located various items stolen from the burglary, including tools, part of the stock and barrel from one of the shotguns, and a number of other goods not connected with the burglary, including a large barrel from a 30-millimitre military weapon, a sawn-off air rifle, a crossbow, a bag containing assorted prohibited weapons, laser levels, power tools, a defibrillator, an imitation handgun and a trailer. You of course were not charged in relation to those.
10 Another occupant of that house, Jayden Veale, gave a statement to police detailing that all of that property had been taken to the premises by Cann, who had been taking property to the address in previous months.
11 Cann arrived during the search and reversed into the driveway, ringing Veale’s mobile phone after becoming suspicious about police cars parked in the street. The call was not answered and Cann drove off in a silver Holden with false plates. Detective Senior Constable Hageman rang Cann from Veale’s mobile, which he answered, and he was advised he was wanted in relation to the burglary and asked to hand himself in but failed to do so. Cann was arrested at the Flying Horse Entertainment Complex in Bell Street, Ballarat, on 18 May 2018.
12 On 23 April at 1.19am, the Waurn Ponds divisional van saw the stolen Toyota Hilux driving south along Torquay Road, Grovedale, bearing stolen plates. Your actions here underlie Charge 13 on the Indictment, handling stolen goods, being the stolen number plates. Police activated emergency lights and sirens in an attempt to intercept the Hilux, but it did not stop. Instead it accelerated along Torquay Road and then Mount Duneed Road at about 100 kilometres per hour in an 80 kilometre per hour zone.
13 The Hilux continued onto Barwon Heads Road, where it was seen travelling at about 120 kilometres per hour in a 100 kilometres per hour zone. It travelled into Barwon Heads, did a U-turn and then travelled back along Barwon Heads Road towards Geelong. During this, the Torquay divisional van was pursuing the Hilux, manned by Leading Senior Constable Craig Atkinson and Leading Senior Constable Trevor Purcell. The Hilux overtook that divisional van and was later seen speeding in Barwon Heads at up to 100 kilometres per hour in a 60 kilometre per hour zone, before slowing, also crossing the centre lines of the road. The Hilux continued on, and then failed to give way at an intersection. This course of conduct in driving away from police, including the speed, exposing police to risk underlies Charge 12 on the indictment, dangerous driving whilst pursued by police. The Hilux then turned left into a dead-end street with a circular-shaped ending, where it was followed by two divisional vans, which stopped towards the entrance of the street, partially blocking exit. You had been told to stop, you failed to do this and this relates to a summary charge of failing to stop a vehicle on police request.
14 The Hilux continued in a U-turn then mounted the nature strip, during which it sideswiped the passenger side of a parked Suzuki sedan belonging to an Amanda McLean. Ultimately, this car was written off by the insurer. Those actions underlie Charge 14 on the Indictment, criminal damage of the Suzuki Swift.
15 The Hilux continued on and collided with a metal light pole which was knocked over by the force of the impact. The car was then heard to accelerate over the pole and become airborne and rammed straight into the front of the Waurn Ponds divisional van in an attempt to escape police. The force of the impact caused the divisional van safety airbags to be deployed and, in the crash, Leading Senior Constable Slevin who was inside the van, received a minor injury, with pain and swelling to her right elbow. The divisional van was substantially damaged and later written off. These actions underlie Charge 15 on the Indictment, damaging an emergency service vehicle, and Charge 16, aggravated offence of recklessly exposing an emergency worker to risk by driving and Charge 17, a further aggravated offence of recklessly exposing an emergency worker to risk by driving, that being Leading Senior Constable Keogh, also an occupant of the Waurn Ponds divisional van.
16 You were the driver and sole occupant of the Hilux van and after the impact with the Waurn Ponds van, you ran from the car and tried to jump over a fence. You were grabbed by Leading Senior Constable Keogh, whom you resisted, but you were then subdued and arrested. These actions underlie the summary charge of resisting an emergency worker on duty, being Leading Senior Constable Keogh. You were disqualified from driving at the time, and your actions underlie a further related summary charge of driving whilst disqualified.
17 On 23 April 2018, you were interviewed in relation to this Geelong-area offending. You made admissions to the driving but not to exceeding 110 kilometres per hour. In relation to crashing into the Waurn Ponds van, you told police that “they thought I tried to ram em but really I was just going for the pole, hoping it’d fuck me up, but it didn’t.”
18 On 26 April 2018, you were interviewed in relation to the Ballarat-area and other offending, making full admissions to the burglary at 96 Lawson Road, saying you remained in the front room of the premises while Cann ransacked the bedrooms and that you wanted nothing to do with the theft of the firearms. In relation to ramming the Bacchus Marsh divisional van, you stated that you panicked and just wanted to get out of the situation, and that you were afraid you were going to be shot by police, although you conceded the way in which you were moving around in the car when confronted by police would have given the impression that you may have been searching for a weapon. You also admitted to stealing petrol on 16 April and stealing the Hyundai van on 24 March 2018.
19 Jarrod Cann, who was 28 years old at the time of the offending, pleaded guilty to one charge of burglary, one charge of theft, one charge of being a prohibited person possessing a firearm, one charge of possessing a prohibited weapon without exemption, one charge of possessing a drug of dependence being ice, one charge of going equipped to steal, one charge of driving whilst disqualified, one charge of committing an indictable offence on bail, two charges of theft of petrol, one charge of criminal damage, one charge of driving a vehicle displaying false registration plates, dealing with property suspected of being the proceeds of crime and a second charge of being a prohibited person in possession of a firearm. He received a total effective sentence of 27 months’ imprisonment, with a minimum term of 18 months. His matters were dealt with in the Ballarat Magistrates’ Court. He unsuccessfully appealed against his sentence on 28 November 2018.
20 Shaun Duck, the passenger in the Holden sedan who was 23 years old at the time, was charged with theft of the Holden sedan on the basis that his was an occupant and was fined $7,000 without conviction at the Bacchus Marsh Magistrates’ Court on 7 September 2018.
21 Samantha Lewin, who was a passenger in the stolen Holden in Bacchus Marsh, was 19 at the time of the offending and charged with theft of the car on the basis that she was an occupant, together with a number of other charges relating to a separate incident, including handling stolen goods, possession of ice, dangerous driving, and so forth. On 4 May 2018, the Geelong Magistrates’ Court sentenced her to 9 months in a youth training centre.
22 The maximum penalty for theft is 10 years’ imprisonment. The maximum penalty for handling stolen goods is 15 years’ imprisonment. The maximum penalty for burglary is 10 years’ imprisonment the maximum penalty for the aggravated offence of recklessly causing an emergency worker to risk by driving is 10 years’ imprisonment, the maximum penalty for criminal damage is 10 years’ imprisonment. The maximum penalty for reckless conduct endangering serious injury is 5 years’ imprisonment and the maximum penalty for damaging an emergency services vehicle is 5 years’ imprisonment.
23 In relation to the summary offences, the maximum penalty for driving whilst disqualified is 2 years’ imprisonment and/or 240 penalty units. The maximum penalty for failing to stop on police request is 60 penalty units and/or 6 months’ imprisonment or 120 penalty units and/or 12 months’ imprisonment for a subsequent offence. The maximum penalty for dangerous driving whilst pursued by police is 3 years’ imprisonment, and the maximum penalty for resisting an emergency worker on duty is 60 penalty units and or 6 months’ imprisonment.
24 You pleaded guilty to the Ballarat area offending prior to committal hearing proceedings on 28 February this year. You indicated a plea of guilty to the Geelong-area offending at a directions hearing on 2 April 2019. You have been remanded in custody since 23 April 2018.
25 I now turn to your personal circumstances. You are now 21 years old. Your father is a shift worker and your mother has always held the occupation of home duties. You told psychologist, Jeffrey Cummins, whose report dated 27 November 2018 was tendered on the plea, that you had a reasonably good relationship with each parent. You have three sisters, who are employed at Schweppes, as a dental nurse and as a prison guard respectively. They have never been in trouble with police. You told Mr Cummins you were raised in a loving and caring family, but revealed you were sexually abused by a maternal uncle over a period of time from the age of 10 and then learned that that uncle had also abused one of your sisters, which has caused you much anger and guilt, because you believed you failed to protect her. Can I say Mr Tyrrell, most victims of crime believe where they have been sexually abused feel in some way that they are to blame, number one, and where it happens to another person feel that they could have done something to stop it. That is not right. Okay, it is not right. I know you have done a lot of work on this in gaol but you have to understand that was not your fault. That was your uncle’s fault. You had nothing to do with it, and you couldn’t have protected her. You really have to get your head around that; that is extremely important, okay.
26 You left Bacchus Marsh Secondary School partway through Year 8 when you were about 15, and have since undertaken minimal paid work. You have told Mr Cummins you have worked in scaffolding as a carpenter’s labourer and were employed to travel with the Royal Melbourne Show to Brisbane.
27 You began smoking cannabis when you were aged 14 or 15 and progressed to using methamphetamine or “ice” from the age of 15 or 16 and using GHB from the age of 17. You told Mr Cummins that about two or three years ago you made a suicide attempt by driving a car into a tree at 180 kilometres per hour and broke your back. You did this again in about May 2017 and shattered your shoulder, suffered a collapsed lung, again broke your back, and told Mr Cummins you had a cyst on your brain and that you were meant to undergo an MRI scan. You told Mr Cummins that you had tried to take your life about six times, the main reason being this guilt that you felt about not having protected your sister from sexual abuse. You said that in your mid-teens you had received some mental-health treatment, but did not continue with it, and that you had been prescribed Avanza, an antidepressant, and Olanzapine, a mood stabiliser by your general practitioner. You also told Mr Cummins that when you did not take your medication you heard voices. You said you used drugs to numb the emotions you feel in relation to your sister, but I must say quite possibly in relation to the sexual abuse you were subjected to by your uncle. It was Mr Cummins’ view you were pre-occupied with that sexual abuse. You also told Mr Cummins that you had, over the years, developed a gambling problem, often playing the pokies at Crown Casino and at local venues.
28 It was Mr Cummins’ view that you probably suffer an Oppositional Defiance Disorder and were at risk of being diagnosed with an Antisocial Personality Disorder. He believed you likely suffer from a trauma-related disorder, which was triggered by being sexually abused at a young age. Mr Cummins said he was concerned when he interviewed you that you appeared to display very little concern about the consequences for you and others in relation to your offending behaviour. He stated:
“Nevertheless, I formed the opinion it was his current mental health problems which were clouding his ability to pay appropriate attention to those issues.”
29 You have some prior convictions. In June 2017, you were placed on a 12-month Community Corrections Order for theft of motor vehicle, theft from shop, going equipped to steal, committing an indictable offence whilst on bail, fraudulent use of number of plates, assaulting an emergency worker on duty, stating false name and making a false address. You were given the opportunity to participate in a residential program placement by Wargunga Narlu, a Learning Place in Traralgon, but absconded from that program by not returning to it after the Christmas break. I should add here that your family discovered about three years ago that you have an indigenous heritage through your mother’s family which has become important to you.
30 You continue to enjoy the support of your parents, who have attended court on every occasion they possibly could. I received a very helpful letter from your mother, who wrote that since you have been gaoled at Ravenhall since April last year she believed you had turned around. She said you had always had learning difficulties through your school life and that you became more argumentative and disconnected as you entered your teenage years. She wrote that it was not until you were being held on remand in Fulham Prison in relation to earlier offending that you revealed what your uncle had been doing to you and she then reported the matter to police, leading to her brother’s arrest, and he being sentenced to gaol and placed on the Sex Offender’s List. That was a very difficult thing to do and shows the enormous amount of support you have got from a very strong mother. I find that extremely impressive and a protective factor in your life. She said that since you have been in gaol, you had, for the first time, begun to talk to her about your future and said that you wanted to learn new things and to build employment opportunities for yourself on your release including possibly studying youth work.
31 I received a number of certificates relating to courses you have undertaken while in custody, you have done a great deal of work – yes?
ACCUSED: Um, I was just gonna say, do you remember when we were at Geelong as well? I also handed in some certificates there as well?
HER HONOUR: Yes, I was just about to talk about them.
ACCUSED: Oh, yeah - - -
32 HER HONOUR: I received a number of certificates relating to courses you have undertaken in custody including a course in general education for adults, reading and writing, identifying measuring and estimating familiar quantities for work, a first-aid course and a traffic control course a six-week course in shifting attitudes, a substance-abuse course. And today I was handed a further certificate which was a certificate one in access to vocational pathways. Your counsel told me that your difficulties at school in learning were never picked up and you were introduced to drug taking by your older peers. She said, and I accept, that you come from a good, stable law abiding and loving family, who continue to support you, and that you have received very little psychological treatment, or treatment for your drug use.
33 Mr Cummins recommended a neuro-psychological assessment but for some reason you were not sufficiently cooperative for that to take place at that stage when it was meant to occur. Because of your report to Mr Cummins about hearing voices I also had you psychiatrically assessed. You told psychiatrist Dr Sally Chow, whose report dated May 2019 was tendered on the plea, that while in gaol you had been seeing a mental-health clinician on a weekly basis, which has helped you work through issues relating to your childhood sexual abuse and you have been placed on medication, which you believe has improved your mental health. You were taken off olanzapine because it was causing you to put on weight. You described your mental status as being really good but that you have bad days where you regret your actions, reporting also troubled sleep relating to flashbacks about your driving and about the sexual abuse from your uncle. You said you heard voices when you first entered prison, but this has subsided, which you attributed to the medication regime upon which you have been placed. You told Dr Chow you were keen to turn your life around when you got out of prison, saying you did not want to be like the other prisoners you saw inside, that you wanted to retain a relationship with your family, and would like to work towards your goals, which included buying a house. You also said you wanted to stay off drugs. You told Dr Chow you were bullied at school and were a slow learner, and that you had difficulty paying attention and concentrating. You were bullied further in high school for being “dumb and retarded” and because of your academic struggles you started socialising with what you termed “the wrong crowd”, which resulted in you wagging school and being disruptive when you did go.
34 You became addicted to drugs while you were at school, then began to steal with your mates and drink at the skate park, you now realising those actions were stupid. You said that during this time you started shutting your family out of your life, actions which you now clearly regret. You repeated the same history of drug use that you gave to Mr Cummins, as well as talking about gambling on a weekly basis. You said that at about the time of your offending that has brought you before this court you had been out of remand for about four months. You soon linked up with your old friends and re-commenced your drug use and offending. You were not in contact with your family but were couch surfing with friends and again developed a heavy habit of ice and GHB. You said you were disappointed in yourself that you had relapsed into crime so quickly after being released from gaol and had also stopped taking your psychiatric medication.
35 Importantly, Dr Chow stated:
“Mr Tyrrell told me at the time, he didn’t care about his actions and was easily influenced by his peers. He told me he participated in the offending as his friends asked him to help. He could not explain his involvement in the offending beyond wanting to help his friends and not caring about the consequences of his actions. He told me during this time he was avoiding contact with family due to shame that he had let them down with returning to crime and substance use.”
36 It was Dr Chow’s opinion that you did not suffer from a psychotic illness such as Schizophrenia, but she believed it was possible that in the middle of your substance abuse that you could experience symptoms of drug-induced psychosis. Do you understand that it is the drug use that is making you hear voices? She said there was clear evidence of poly-substance abuse since adolescence, particularly ice and GHB which appear to have been driven by engagement with peers who also used drugs. She said the drugs were also a way of you managing your guilt that you did not protect your sister from being sexually assaulted, and then later to manage your feelings of disappointment about engaging in crime and disappointing your family. She said currently you were keen to remain off drugs and engage in treatment on return to the community. She stated “the offending behaviour seems to be a nexus of relationship dysfunction and substance use”. She said your mental health appeared to have improved while in gaol because you were not using drugs in gaol. She believed that while in gaol you should have ongoing mental health care in relation to your past sexual assault and your guilt around your uncle. She stated:
“…He has thus far engaged well in treatment and self-reports that it has helped him significantly. I recommend that this continues. He would benefit from ongoing review regarding his medication.”
37 Overall, Dr Chow believed that you had benefited from the structure of the prison environment, having been able to stop using drugs and having been given an opportunity to engage in mental-health treatment.
38 Turning back to your mother’s letter, she notice the changes you have made while in gaol and said that her daughter, who was also abused by your uncle, has been having sessions with a psychologist, which have been finally successful for her. It is your mother’s hope that on release you will have sessions with that same psychologist. She said that:
“… He has started to talk about his future over the last three months and to me that is a good sign. He wants to be considered for Malmsbury Youth Training Centre for education and training facilities. He currently does some education at Ravenhall but has been told he could do more through Malmsbury.
He was not focused during high school but is doing well when learning now. He is more looking toward the future and wanting to build opportunities for employment upon his release.
Please have faith in our son bettering his life now because we do and we didn’t feel this way previously.”
39 So it seems like for a long time your parents really did not think you were going anywhere but disaster- if I can put it that way. But the way you have performed in gaol has changed their minds. Unfortunately, you are now too old to be sentenced to a term of detention in a youth justice centre. Further, in relation to the four charges of the aggravated offence of recklessly exposing an emergency worker to risk by driving, s.3(1) of the Sentencing Act 1991 directs that a custodial sentence must be imposed and cannot be combined with a Community Corrections Order, and that a term of imprisonment for these offences must be served cumulatively, unless otherwise directed by the Court. It is quite clear that the offending before me is extremely serious and could have resulted in dreadful injury to someone, or even their death, and it represented a sort of spree of offending which involved a serious burglary. I am satisfied that at the time of the offending you were effectively out of control. The plus side for you is that you have a law-abiding and loving family.
40 Further, I am satisfied that your time at Ravenhall Prison, which is one of the newer prisons with a much greater emphasis on rehabilitative structures within it (I wish it was repeated everywhere) has been used productively by you and has allowed you to receive both the medication and psychological attention that you have needed for a very long time.
41 It would appear from your history that there were two factors in your life that led to your heavy involvement in drug use and then to your involvement in offending. First, there were your learning difficulties at school which were not attended to that led to disengagement from school, bullying, and involvement with anti-social peers.
42 Secondly, there was the sexual abuse by your uncle which this Court knows all too well can have a devastating impact on the psychological health of the victim. In your case, this was added to by the discovery that your sister was also a victim and, to some extent, it may seem that the anger you had towards your uncle for what he did to you then went sideways, if you like, because it was easier to do that, channelling an immense guilt over what you saw as your failure to protect your sister. You have to understand that, as a young boy, this was impossible for you. Like so many victims of sexual abuse, particularly abuse by a family member, you told no-one about it for a long time, this is a perfectly normal response it is seen by the Courts over and over, but because your uncle went on to abuse your sister, you have blamed yourself for not saying something earlier. We see this all the time; it was a perfectly normal response and you are not to blame.
43 These factors have all been a disastrous combination for you, leading you to make friends and living a lifestyle completely alien and opposite to the way you were brought up and the sort of family you born into. In my view, it is extremely important that you, as a young offender, do have the support of a loving and stable family unit to return to when you are released from gaol. I am satisfied that the progress you have demonstrated in gaol, together with the support of your family, means that you have far better prospects for rehabilitation than you had at the time you were arrested in April of last year. I make the comment that yours is a case that demonstrates the importance of having good, strong, readily available rehabilitative structures within a gaol. I am really satisfied that being placed in a centre like Ravenhall has been life changing for you.
44 In sentencing you, I take into account your young age, your early pleas of guilty which has saved the community the time and expense of lengthy trial proceedings. I take into account your undoubted progress whilst in gaol where you have as I have said for the first time received the sort of treatment you have long needed which has lead you to look for the first time constructively to your future. I also take into account your untreated learning difficulties and the sexual abuse by your uncle which is I have said in my view underpin you drifting away from a loving law-abiding family and taking a disastrous journey into drug use and crime. I take into account the strong protective factor of your family who continues to support you. I was also informed that unfortunately you had been placed in protective custody due to bullying in mainstream from older prisoners. As many-prisoners in protection are in fact sex offenders, this seems to be pretty inappropriate in your case.
45 It was not submitted that I should deal with you other than by way of a term of immediate imprisonment but because of the mitigating factors I have outlined, it is my view that this is a case where there should be a greater than usual disparity between the head and minimum terms. I make the comment with great emphasis that although of course as a Judge I do not have the power to direct where prisoners serve their term, in your case it is extremely important that you are placed in as rehabilitative a gaol as possible. I understand that Ravenhall is mainly for remand prisoners but there are other gaols such as Marngoneet to which you could be sent, it is my view for what it is worth. Again, I am not trying to tell the prison authorities what to do, but rehabilitation in gaol has been crucial for you and should absolutely be continued when you begin to serve this sentence. Could you stand up please.
46 On Charge 1 you are sentenced to one-month imprisonment. On Charge 2 you are sentenced to one-month imprisonment. On Charge 3 you are sentenced to 12 months’ imprisonment. On Charge 4 you are sentenced to one month’s imprisonment. On Charge 5 you are sentenced to 18 months’ imprisonment. On Charge 6 you are sentenced to 18 months’ imprisonment. On Charges 7 and 8 each, you are sentenced two months’ imprisonment. On Charge 9 you are sentenced to nine months’ imprisonment. On Charge 10 you are sentenced to three months’ imprisonment. On Charge 11 you are sentence to nine months; imprisonment. On Charge 12 you are sentenced to six months’ imprisonment. On Charge 13 you are sentenced to one-month imprisonment. On Charge 14 you are sentenced to nine months’ imprisonment. On Charge 15 you are sentence nine months’ imprisonment. On Charge’s 16 and 17 you are sentenced to two months’ imprisonment on each.
47 You are also sentenced to nine months on the summary charge of dangerous driving whilst pursued by police. You are sentenced to six months’ imprisonment for failing to stop at police request. And you are sentenced to two months in relation to each of the summary charges of driving whilst disqualified.
48 The base sentence will be the sentence imposed on Charge 5, 18 months’ imprisonment. I order that six months of the sentences imposed on Charges 3 and 6, two months of the sentences on Charges 7 and 8, one month of the sentence imposed on Charge 9, one month of the sentence imposed on Charge 11, two months of the sentence imposed on Charge 12, one month on the sentence imposed on Charge 14, one month on the sentence imposed on Charge 15 and two months of the sentence imposed on Charges 16 to be served cumulatively to the sentence imposed on Charge 5 are the sentences.
49 In relation to the summary charges of drive while disqualified you are sentenced to 2 weeks on each of those sentences. Sorry, 2 weeks are the sentences imposed on the three charges of drive while disqualified are to be served cumulatively as are two weeks of the sentence imposed for failing to stop on police request and one month of the sentence imposed for dangerous driving whilst pursued by police. That should give a total effective sentence of three years and 11 months, but I order that you serve a period of two years and three months before becoming eligible for parole. What is the PSD?
50 MS PARKER: 473 days, Your Honour.
51 HER HONOUR: I declare that 473 days of that sentence have already been served by way of presentence detention. Okay.
52 Pursuant to s 6AAA, I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of five and half years and order that you serve a minimum term of three and half years.
53 Now, when you get out on parole, if you commit an offence whilst you are on parole the legislation says that on top of the fact that you have breached parole and you will have to give them the time you owe them. All right? And understand on my sentence you owe them one year and eight months when you get out. But if you commit crime whilst on parole, any sentence you receive for that has to be served on top of what you owe parole. You go on one of these sprees again, you are looking at heavy, heavy time. So if you get parole, you absolutely have to keep your nose clean. All right. Have you had a go at finding narcotics anonymous in gaol? I meant to add that, whilst in gaol you have also made contact with narcotics anonymous. Keep that up. That is a sensational resource for you, and it is there for you when you get out. All right. Drugs is number one here. I hope that what I have said in my sentencing remarks means that you will go to Marngoneet, there is another one starting with K. I cannot remember what. They are both more rehabilitative. You are a young offender. You are in protection, which is not a good place for you to be. You need that psychological treatment to continue and you also need those educational programs to continue.
54 Now, unusually for a young man who has offended the way you have, you present with really good family. And finally, you have run into a brick wall almost literally and because you have been contained in gaol you have actually been able to overcome some of these difficulties. You are back in good contact with a good family. But once you hit the County Court Mr Tyrrell, that is the big time. All right. That is a pretty reasonable sentence for a young bloke to get and if you get into trouble in the future that is going to be a bad record for you to have. So, I am just warning you that you are not out of the woods yet, but I have no doubt if you continue with your study, you continue with your medication, you continue with a drug treatment you are going to have a good future. Thank you very much. Is there anything else, any other orders that I need to attend to?
55 MS PARKER: Yes, there is Your Honour, there is forfeiture orders sought, and your Honour should have that. And also, two compensation orders, they are both by consent.
56 HER HONOUR: I very cleverly left them in Chambers. I will get them, that is the 464ZF.
57 MS PARKER: Your Honour, that is not sought, there is an unexecuted order that is already sitting there, so there is no need to seek that.
58 HER HONOUR: Okay
59 MS PARKER: So, just the three orders.
60
MS LOCKE: And on the last occasion Your Honour, I said that while
Mr Tyrrell, consents to the two compensation orders one of them is to AMI insurance for $4,500 and I was inviting Your Honour to take into account his present circumstances and Your Honour’s decision in relation to that order.
61 HER HONOUR: Yes, can I just say as long as I know that the owner of the car has been compensated by insurance, I am not going to make.
62 MS PARKER: Certainly Your Honour, perhaps if we just pursue the one in relation to the theft, that is the less than $40.
63 HER HONOUR: Yes, I am happy to do that.
64 MS PARKER: Thank you, Your Honour.
65 HER HONOUR: I just don’t want him coming out of gaol with a massive debt.
66 MS PARKER: Certainly, Your Honour.
67 HER HONOUR: But mind you though, when the problem is this poor woman, her insurance premiums is going to be bumped up.
68 MS PARKER: Your Honour, our internal policy if there is no means to pay then we really shouldn’t be seeking orders.
69 HER HONOUR: I agree and there isn’t. You are right and I won’t do it.
70 MS PARKER: Certainly, Your Honour.
71 HER HONOUR: But understand Mr Tyrrell, I am not going to make you pay back. Stand up Sir, because that car you side swiped, because insurance have paid the owner. But her premiums will go up, because she has made a claim. All right.
72 ACCUSED’S MOTHER: Believe me, I have verbally explained the disgustingness with all of that, it is a domino effect. It is not just, it continues to go on.
73 HER HONOUR: Oh, good on you.
74 ACCUSED’S MOTHER: - - - With these premiums, I – it’s disgusting.
75 HER HONOUR: Thank you very much. So, you understand that all right? Thank you very much. Thank you, Mrs Tyrrell. You can have a seat.
76 I will attend to those orders in Chambers and get them to the prosecution. Is there anything else I need to attend to?
77 COUNSEL: No, Your Honour. Nothing further, Your Honour.
78 Her HONOUR: I thank counsel very much for their assistance, I will return that, you keep up the good work, Mr Tyrrell.
79 Hopefully the gaol will take notice of the sentencing remarks which I will forward to them. As I said, I thank Counsel very much for their assistance in this matter. All the best Mr Tyrrell.
- - -
0
0