Director of Public Prosecutions v Lee
[2023] VCC 2008
•2 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00798
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYSON LEE |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2023 | |
DATE OF SENTENCE: | 2 November 2023 | |
CASE MAY BE CITED AS: | DPP v Lee | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2008 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Plea of guilty – Persistent contravention of family violence intervention order – common law assault – criminal damage – commit indictable offence whilst on bail – summary trespass – Aboriginal offender - family violence – mental health – personality disorder - ADHD
Cases Cited:Pasinis v The Queen [2014] VSCA 97 – Filiz v The Queen [2014] VSCA 212 – Boulton v The Queen (2014) 46 VR 308 – R v Verdins & Ors (2007) 16 VR 269
Sentence: 16-month Community Correction Order
s 6AAA – 12 months’ imprisonment and a 16-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Lee | Office of Public Prosecutions |
| For the Accused | Ms K. Rolfe | Kurnai Legal |
HER HONOUR:
1Tyson Lee, you have pleaded guilty on Indictment N12779884 to 11 charges of persistent contravention of a family violence intervention order, three charges of common law assault and one charge of criminal damage. Further you have agreed to three summary related offences being dealt with by this Court and have pleaded guilty to Charge 6 which was committing an offence whilst on bail, Charge 27 also a charge of committing an offence whilst on bail and Charge 70 which is a summary trespass.
Circumstances of the offending
2The agreed factual basis of your offending is contained in the summary of prosecution opening and this document was tendered on your plea and marked as Exhibit A. What now follows is a summary.
3At the time of the offending you were 25 years old and you were living in Morwell. The primary victim in your offending is Liana Williams[1] and she was aged 24 at the time of the offending. You had previously been in a de-facto relationship with her for approximately three years. Together you have got a daughter, Zanna[2], who is now two and half years old. Zanna lives with Ms Williams.
[1] A pseudonym
[2] A pseudonym
4A final Family Violence Intervention Order where you were the respondent and Ms Williams was the protected person was issued by a Magistrate of the Latrobe Valley Magistrates' Court on 31 January 2022. The Order was served on you on 14 February 2022 and it was in effect until 13 January 2023. The conditions of the order provided you must not:
· Commit family violence against the protected person.
· Intentionally damage any property of the protected person or threaten to do so.
· Attempt to locate, follow the protected person or keep her under surveillance.
· Publish on the internet, by email or other electronic communication any material about the protected person.
· Contact or communicate with the protected person by any means.
· Approach of remain within 200 metres of any place where the protected person lives, works or attends school.
· Get another person to do any of those things that you must not do under the order.
5The secondary victim in this matter is 24-year-old Brodie Mahy. Mr Mahy was your childhood friend and at the time of the offending was in an intimate relationship with Ms Williams.
6On 23 March 2022, you had been bailed from the Morwell Police Station on your own undertaking to attend the Latrobe Valley Magistrates' Court on 30 August 2022.
7In the early hours of Saturday, 24 December 2022, Ms Williams was in the loungeroom of her home with Mr Mahy. After receiving numerous messages from you, Ms Williams called you to stop messaging her. This conversation escalated to a verbal argument and Ms Williams ended the call.
8Shortly after at around 2 am, you walked to the home of Ms Williams. You entered via the unlocked back gate and walked to the front door. As you passed the front window of the residence, you heard a male voice inside. You knocked loudly on the front door. Realising it was you and knowing you would be angry to find him there, Mr Mahy hid in the bathroom. Ms Williams went to the front door and told you to leave. You verbally abused Ms Williams calling her a 'whore' and a 'slut' and said, 'I know you have someone inside'.
9You walked to the back door near the laundry. Ms Williams went to the laundry and yelled at you to leave. You broke the glass window next to the laundry with your right arm (Charge 13, destroying property or criminal damage). This caused a deep laceration with significant bleeding that required medical treatment. You continued to curse and yell at Ms Williams.
10Ms Williams again yelled at you to leave. You tried to climb through the window whilst Ms Williams physically pushed you out. Ms Williams went into the hallway closing the laundry door behind her. You then moved a black wicker outdoor chair to the base of the window, you climbed on the chair and entered the laundry via the window you had smashed (related summary offence, trespass).
11Once inside you called out to Mr Mahy. You located him hiding in the bathroom behind the door, you entered and shut the door. After a brief verbal argument you headbutted Mr Mahy to the face (Charge 15, common law assault).
12Around this time you realised you had injured your hand and began to feel faint. You washed the blood from your hand at the kitchen sink. Ms Williams and Mr Mahy took refuge in Ms Williams's bedroom where your child, Zanna, who was one year and seven months' old at the time, was in the bed. Ms Williams closed the door and braced herself against it before you tried to force it open. Ms Williams yelled at you, 'I'm calling the police', and whilst on the phone to the Triple 0 operator she continued to yell at you, 'Get out. Get out. Get the fuck out.' You went outside and waited for police. When the police arrived they found you in the front yard and arrested you without incident.
13Although you were alcohol affected you were compliant. You were taken to Morwell Police Station and interviewed in relation to this incident and multiple communication contraventions of the Family Violence Intervention Order. Your mobile phone was seized and multiple additional contraventions of the Intervention Order were identified whilst you were in custody.
14Call charge records conducted from your mobile phone service show that between 14 February 2022 and 24 December 2022 you called Ms Williams’s mobile phone service a total of 694 times in contravention of the Family Violence Intervention Order (Charges 1 to 6 and Charges 8 to 12, total of 11 counts of persistent contraventions of family violence intervention orders, and the related summary offences of commit indictable offences whilst on bail).
15Call charge records conducted on your phone service show that between 17 February 2022 and 24 December 2022 you sent 2,110 text messages to Ms Williams's mobile phone service in contravention of the Intervention Order.
16Call charge records conducted on your mobile phone show that on 11 December 2022 you sent 22 text messages to Ms Williams's mobile phone service in contravention of the Intervention Order.
17Call charge records conducted on Ms Williams's mobile phone service show that between 10 and 23 December 2022 you sent 435 text messages to Ms Williams in contravention of the Intervention Order.
18Call charge records conducted on Ms Williams's mobile phone service show that between 10 and 23 December 2022 you made 59 calls to Ms Williams in contravention of the Family Violence Intervention Order.
19On Tuesday 27 December 2022, a further statement was obtained from Ms Williams where she disclosed the following incident:
20On Friday, 26 July 2022, Ms Williams was at a family member's residence with Zanna. At around 11.30 pm you arrived at the address and you were in an intoxicated state.
21You verbally abused Ms Williams before being directed to leave the address by a family member. Ms Williams returned to her address with Zanna. At around 1.30 am you attended the victim's address and you had been living there for around one month in contravention of the Intervention Order. You knocked on the front door and Ms Williams let you in. Once inside, you immediately verbally abused Ms Williams who went into her bedroom and got into bed with their one-year-old child, Zanna, who was asleep.
22You followed Ms Williams into the room where the argument continued. Ms Williams was in fear that you would assault her. You were not interviewed in relation to this incident.
23As a result of the assault to Mr Mahy on 24 December 2022, he sustained a minor laceration, bleeding and swelling to his nose. Mr Mahy did not receive medical treatment for his injuries.
24During your record of interview you made admissions to breaking the laundry window and entering the premises. You also admitted headbutting Mr Mahy. Further you admitted you were aware of the Intervention Order and that you had persistently breached it as you had sent several text messages and had called Ms Williams. You also admitted to living with Ms Williams for a period of time in contravention of the intervention order.
Victim impact statement
25I have received a victim impact statement from Liana Williams. Ms Williams elected to not have her statement read in open court. In such circumstances I do not propose to repeat or summarise the contents of her statement however I can indicate that your offending has had a lasting and significant effect upon her life.
26I have taken into account Ms Williams's victim impact statement in sentencing you.
Nature and gravity of the offending
27The most concerning aspect of your offending is that it has occurred in the context of your domestic relationship and involves persistent breaches of a Family Violence Intervention Order and domestic violence.
28The Court of Appeal has emphasized that family violence is very serious and must be condemned. In Pasinis v The Queen in 2014, the Court of Appeal said:
'Historically, perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.'[3]
[3]Pasinis v The Queen [2014] VSCA 97, [53].
29In Filiz v The Queen, the Court acknowledged the 'shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44'.[4]
[4]Filiz v The Queen [2014] VSCA 212, [23].
30Your offending behaviour was sustained and culminated in an incident of significant violence at your ex-partner's family home. As such it is condemned by this Court. Committing violence upon family members is a prevalent crime which deserves the stern denunciation of the Court to reinforce the message that such violence will not be tolerated and will be punished severely. The very fact that the victim of your crimes was your former partner and your very young daughter was also present is an aggravating feature of your offending.
31Ms Williams, Mr Mahy or any person Ms Williams chose to have at her home, were entitled to feel safe and secure. Your offending occurred late at night, where you were not welcome at the address. Further, you assaulted Mr Mahy and frightened Ms Williams and no doubt your daughter Zanna also.
32Although your breaches of intervention order were persistent, protracted and occurred over the better part of a year, I consider them to have occurred in the context of the breakdown and attempted reconciliation with your former partner, Ms Williams. Further, I accept that at the time of the offending on 24 December 2022 you were at a particularly low ebb in your life having attempted suicide approximately one month prior.
33Your counsel has appropriately acknowledged the seriousness of your offending and the impact it has had upon your victims. Overall, I consider that the objective circumstances of your offending behaviour make it a sustained and relatively serious example of domestic violence offending.
Personal Circumstances
34You were born in Nowra, New South Wales. You have lived in Victoria since you were a toddler. Your family initially moved to Moe and lived with your paternal grandmother. Your family later moved to Morwell and have remained there. You are the second youngest in a sibship of six.
35Physical and verbal violence between your parents occurred regularly throughout your childhood. I might say there is some irony in that. It seems that you were a victim of family violence yourself in that sense. You also recall experiencing harsh discipline at the hands of your father during your childhood. Despite this, your parents remained together until 2020 when your mother passed suddenly as a result of heart failure.
36Your father supported the family financially and had consistent employment during your childhood (painting, working at the abattoirs and traffic management). Aside from your oldest sister, you enjoy a positive relationship with each of your siblings. You are particularly close to your sister, Skye, who gave evidence at your bail application and who has provided a letter to the court today. Skye works in disability care and you have been living with her family since your release from custody. She confirms that you have met all of your obligations and have remained out of any trouble. Further she confirms that you are working hard and are looking forward to a brighter and better future.
37In terms of schooling, you completed primary school at Morwell CODE School and Morwell Park Primary. You left school at the beginning of Year 10 at that time you had been attending Kurnai College, Morwell. You experienced concentration problems and performed below average academically. Despite having one on one class support in Years 7 and 8,you still struggled with literacy and numeracy upon leaving school.
38I was told by your counsel Ms Rolfe in her oral submissions that these issues have resolved to an extent with current technology such that you now have functional literacy and numeracy.
39After leaving school, you attended Koori TAFE in Morwell for the next two years completing various subjects including maths, English and humanities. Further, you have obtained various tickets – including your white card (work site access/induction) and your RIW (Rail Industry Worker Program) authorising you to work on the railways.
40Since the age of 20 you have been employed consistently, including roles in spray painting (Easy Quip Dumpsters), forestry (planting and seeding pine trees) and cleaning (Wayne's Cleaning Systems). Prior to your remand, you were employed cleaning V/Line trains and had held that position for two and a half years.
41Following your release on bail, you had some work lawn mowing. Recently, you have obtained employment with GLAWAC (Gunaikurnai Land and Waters Aboriginal Corporation). The organisation focusses on landscaping, clearance and maintenance of local indigenous land.
42You report one significant relationship, that being with the victim, Ms Williams. The relationship commenced in early 2020 and together you have one child, a daughter Zanna, (now aged 2 and a half years old). During psychological assessment, you acknowledged a development of overreliance on Ms Williams for emotional support. This was particularly so subsequent to your mother's death.[5]
[5] Report of Psychologist, Ms Sandra Cokorilo, 14 June 2023, [42].
43Until the age of 20 to 21 years you lived within the family home and following that you resided with Ms Williams, including on and off during 2022, until the relationship finally broke down in October 2022.
44You were a daily cannabis user between the ages of 13 and 20. Your alcohol consumption increased to nightly between the ages of 20-21. After that time, although you did not continue to drink with such regularity you frequently drank to excess. Your abuse of cannabis and alcohol have both arisen in the context of untreated mental health issues and have been a form of self-medication.
Mental Health
45In her assessment, psychologist, Sandra Cokorilo, considered your exposure to chronic family violence as a young child and noted that such exposure is known to have significant and lasting effects on emotional regulation, behavioural control and information processing.
46She was of the opinion that you met the diagnostic criteria for Generalised Anxiety Disorder and Persistent Depressive Disorder which at times worsened into symptoms consistent with Major Depressive Disorder. In her opinion, an earlier diagnosis you had received for ADHD was correct, noting that ADHD impacts decision making, inhibitions and emotional functioning and is frequently co-morbid with other conditions such as anxiety, depression and substance use.
47Ms Cokorilo further identified that you were displaying behaviours and thought patterns consistent with Dependant Personality Disorder which is characterised by deep fears of separation and the loss of support from others and clingy behaviours. She considered this disorder a pertinent factor in your response to the breakdown of your relationship with the complainant. These feelings of loss were further intensified and compounded by the death of your mother in 2020.
48Ms Cokorilo was of the view that an interplay between all these conditions impacted on your ability to exercise appropriate judgement, think clearly and manage your emotions at the time of the offending. She notes that in the weeks leading up to the offending, you were experiencing symptoms consistent with major depressive disorder and you had attempted suicide.
49In the past and at the time of the offending, alcohol was used as a maladaptive coping mechanism and a means of self-medication. The presence of alcohol at the time further disinhibited you and further impacted your judgment. Nonetheless, Ms Cokorilo opined that the aforementioned personality and mental health conditions played a key role in your behaviour independent of the effects of alcohol.
50Ms Cokorilo considered you to be at low general risk of re-offending and low risk of committing further intimate partner violence. She noted your genuine expressions of remorse, absence of pro-criminal attitudes and attitudes condoning family violence and the presence of various social supports. In her view, further imprisonment would likely result in a deterioration of your mental health due to your ADHD and chronic depression and anxiety. Therapeutic and social supports would be diminished and the prison environment may engender criminal attitudes at a time when you are still particularly susceptible to their influence.
51She considered that you would benefit from a confirmation of your ADHD diagnosis and treatment if indicated. You would also benefit from further counselling and psychological support to develop further insight and healthy coping strategies. This may include a brief period of alcohol and drug counselling. Following your completion of the Men's Behaviour Change program and the absence of other indicators of future risk of family violence offending, she does not believe you require further offending specific interventions.
Application of Verdins
52Your counsel submitted that given the compelling material and findings from Ms Cokorilo each of the limbs of Verdins were enlivened in your case. Specifically Ms Rolfe submitted that you have multiple and significant mental health issues the diagnosis of which, and the symptoms you experienced, led to a direct impact upon your ability to make calm and rational choices and to think clearly at the time of your offending. Further, she submitted that these same issues persist to the extent that you should not be considered as a vehicle for general deterrence in the same way as someone who does not suffer these afflictions. Additionally, your experience of custody demonstrated the devastating impact of incarceration on your mental state.
53In response, Mr Lee for the prosecution submitted that the Verdins principles are confined to impairment of mental functioning. He submitted that depression and anxiety of themselves cannot act to reduce moral culpability. Further, he submitted that your consumption of alcohol and your decision to attend Ms Williams's house on the night of 24 December 2022 were conscious actions on your part.
54Additionally, Mr Lee pointed out that the offending does not relate solely to the events of 24 December 2022 but also to the July incident and the persistent contraventions of the Family violence Intervention Order throughout 2022.
55I agree with the submissions of your counsel. I consider that your moral culpability ought be reduced by virtue of the mental impairments that you were suffering from at the time of your offending and that you continue to suffer from now at the time of sentence. I find these mental impairments were directly causally related to your offending. In reaching this finding I have taken into account that it is not only depression and anxiety from which you suffer. You have also been diagnosed with a Dependent Personality Disorder and Attention Deficit Hyperactive Disorder. It is the Dependent Personality Disorder and how the symptoms you were suffering throughout the offending period manifested in the particular circumstances of your case that have led me to conclude that your moral culpability ought be reduced. In this regard I note that the Dependent Personality Disorder was brought on by the death of your mother in 2020 and your offending occurs throughout the majority of 2022. In the circumstances, I find that general deterrence should be moderated in your case.
Plea of guilty and remorse
56Your plea of guilty illustrates that you have taken responsibility for your actions and demonstrates your desire to facilitate the course of justice. You have always indicated an intention to plead guilty to appropriate charges and made extensive admissions in your forthright and frank record of interview. Although it was only recently that your matter settled to a plea, I note that substantial offers were made prior to resolve and that was prior to your committal hearing. The main charge in dispute being the charge of aggravated burglary that has now been withdrawn or replaced I should say with the trespass offence. In the circumstances of your case I consider your plea to be an early one.
57Your plea of guilty has utilitarian benefit and has spared Ms Williams and Mr Mahy from giving evidence at trial which is an important factor. Further, I accept that your plea of guilty has increased benefit in the context of the COVID-19 court backlog which, though now easing, was still a relevant consideration at the time your matters entered the court process. In the circumstances, I propose to allow a significant discount for your plea of guilty.
58Further I accept that your plea of guilty is indicative of your remorse. This together with your admissions to police, apology to the victim Mr Mahy in your record of interview and expressions of remorse to Ms Cokorilo allow me to find that your remorse is genuine remorse.
Rehabilitation
59Your counsel relied on the following factors that reflect your ability to foster rehabilitation: you have only one prior matter from the Children's Court; your relative youth; your previous work history; your compliance with stringent bail conditions; your positive engagement in treatment and rehabilitation since release on bail; your improved mental health functioning as a result; your family support; the assessment of Ms Cokorilo that you are a low risk of re-offending; your indication of remorse and insight in relation to the impact of your offending and the opinion of Ms Cokorilo which was given after a thorough assessment that occurred over a six-month period.
60Since I released you on bail you have completed a Men's Behaviour Change program with VACCA, you have engaged with Ramahyuck, you have sought and obtained employment and obtained a mental health care plan and importantly you have not reoffended.
61In addition, your counsel submitted that you have every motivation to remain offence free and continue with these supports and that is the goal of having a meaningful relationship with your daughter in the future. In light of all of these factors I agree with your counsel's submission that your prospects for rehabilitation are excellent.
Sentencing principles
62The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
63Although general deterrence remains the primary purpose of sentencing in your case because of the seriousness of your offending and its connection to family violence, I have moderated the weight that it is to be given as a result of my findings in relation to the application of the principles in Verdins.
64In my view, specific deterrence should be given little weight in sentencing you. This is because of the very direct and very severe consequences you have experienced as a result of your offending, being the 230 days you spent on remand. Further your experiences in custody appear to have motivated you to reform and not re-offend. In your case, I regard protection of the community to be a relevant consideration. However, I agree with the submission of your counsel that this is closely aligned with your rehabilitation. It is my view that the community and the victims of your offending will be best served if your rehabilitation is fostered and encouraged rather than interrupted by a return to custody. Clearly, this is what will reduce your risk of future offending.
65I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case. In particular, I have had regard to the sentencing landscape for the offending before me, particularly in the family violence context. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.
66The principles of totality, proportionality and parsimony are also very important considerations here. They not only require me to make sure the total sentence is appropriate for the total criminality but also that I must do no more than is necessary to appropriately punish you. I have taken these principles into account in fixing the sentence I will now impose.
67Weighing up all relevant matters, including the gravity of the offending, the matters canvassed in Ms Cokorilo's report and the substantial and salutary impact of your period on remand I consider that a sentence of imprisonment is not required in the circumstances of your case and the sentencing factors of general deterrence, just punishment and denunciation can be addressed by the imposition of a Community Correction Order. In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen, that is, a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.[6]
[6] Boulton v The Queen (2014) 46 VR 308.
Disposition
68Mr Lee, in relation to each of the charges before the court you are convicted and I order you be placed on a Community Correction Order for a period of 16 months. The conditions of this Community Correction Order include that you must:
(a) Undertake 80 hours of unpaid community work;
(b) Submit for assessment and treatment for mental health;
(c) Submit for assessment and treatment for drug and alcohol abuse;
(d) Attend for supervision; and
(e) Complete offending behaviour programs.
(f) I am also going to order a condition for judicial monitoring, so I want you to come back and see me in six months' time. I have done this because I want to see how you are going and to see if you have been able to maintain the reformation that you have commenced.
69This can be done via Webex and if necessary you can appear at Corrections with your corrections officer present. I am interested to see how you go and I want to encourage you to do well because I see that would be the best outcome for everyone.
70In terms of the 80 hours, I intend to offset the whole of the 80 hours unpaid community work against treatment and that is a further incentive for you to participate in the rehabilitative programs I have ordered. So if you do 80 hours of rehabilitative programs, then you will not have to do any community work.
71In addition to the conditions that I have imposed, there are standard conditions that you must comply with, and you might already know these and Corrections may well have gone through them with you, but I need to explain them to you. The most important of the standard conditions is that you do not commit another offence punishable by imprisonment within the period of the Order, so that is for the next 16 months. You need to report within two working days to your nearest Corrections office and I understand that that will be Morwell Corrections.
72You are required to advise your supervising Corrections office of any change of address of where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed, obey the instructions and directions of the Corrections officers, and also you cannot leave the State of Victoria without their prior permission.
73So, Mr Lee, if you reoffend you will breach the Order, and if you do not comply with the conditions I have imposed or the standard conditions, you will breach the Order and if you do breach, you come back before me and you may be resentenced for the original charges. All right?
74I can only place you on a Correction Order if you agree so firstly, do you understand what is involved in the Order?
75OFFENDER: Yes. Yes, I do.
76HER HONOUR: All right. And do you consent to the Order?
77OFFENDER: Yes, I do.
78HER HONOUR: All right. Pursuant to s6AAA had you not pleaded guilty to the charges the sentence I would have imposed on you is a term of 12 months' imprisonment and a Community Correction Order in the same terms as that I have imposed today.
79All right. Is there anything further?
80MR LEE: PSD reckoned, Your Honour?
81HER HONOUR: I have not imposed a gaol term so I do not propose to reckon any PSD. There is nothing to reckon it against.
82There might be an issue with actually producing an order so we might need to just take the verbal consent which we have been doing during COVID as consent and then once the system fixes itself, we will send the order through to the parties but also through to Morwell Corrections - - -
83MS ROLFE: Yes.
84HER HONOUR: - - - and, Mr Lee, most likely they will get you to sign it when you go there. I am not sure if I said but you need to report within two working days from today.
85HER HONOUR: Yes. All right.
86MS ROLFE: As Your Honour pleases.
87HER HONOUR: Thank you very much.
88MR LEE: As the court pleases.
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