Director of Public Prosecutions v Mousley

[2025] VCC 326

IN THE COUNTY COURT OF VICTORIA

                  Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-01577

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYLER MOUSLEY

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2025
DATE OF SENTENCE:	21 March 2025
CASE MAY BE CITED AS:	DPP v Mousley
MEDIUM NEUTRAL CITATION:	[2025] VCC 326

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentencing

Catchwords:                  Plea of guilty – Koori Court – Attempted armed robbery – Assault – Youth offender – ADHD – Traumatic childhood –Bugmy principles - Substance use – General deterrence – Specific deterrence – Denunciation – Rehabilitation of young person – Community interest in rehabilitation– Impact of custodial setting

Legislation Cited:         Sentencing Act (Vic) 1991     

Cases Cited:                 Bugmy v The Queen [2013] HCA 37

Sentence:Community Corrections Order for 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms O. Stevenson	Office of Public Prosecutions
For the Accused	Mr C. Tom	Victoria Legal Aid

HIS HONOUR:

1Tyler Mousley, you have pleaded guilty before me to a charge of Attempted Armed Robbery and a relevant Summary offence of Assault.  You pleaded guilty in the Koori Court.  Attempted armed robbery has a maximum penalty of
20 years' imprisonment.  Unlawful assault has a maximum penalty of six months' imprisonment.  You have a limited criminal record.  There was a concerning appearance in March last year and it is a record that is starting to take on an ugly shape.  You are at risk of going down a path where adult gaol is your reality, if you continue offending in this manner.

2Due to your youth and what emerged as some insight and remorse during your Koori Court sentencing conversation, I intend to give you a chance to turn things around, and I am of the view that you can do so.  That is notwithstanding the careful presentence assessment and concerns therein due to your
non-attendance at one of those meetings, and inability to fully assess you.

3The circumstances of the offending are set out in Exhibit A, which is the Summary of Prosecution Opening for Plea.  Exhibit A forms part of these reasons for sentence.  I do not intend to recite all of the detail that is contained therein, but in brief terms, you committed the offence in company with the co-accused who was a child at the time and has been dealt with in the Children's Court.  Your victim in the matter, the principal victim, is 13 years of age, a young child, and that is something that I am satisfied you are suitably ashamed of, and so you should be.

4Put in very brief terms, you accosted your victim and demanded that he take off his hoodie.  You lifted up the front of your jumper to reveal a knife tucked into the right side of your waistband.  Upon seeing the knife, your victim began running, and fled in complete fear obviously.  You pursued him together with your co-offender.  You caught up to him, pushed him against the fence, holding his chest.  You were holding the knife in your left hand and again demanded that he remove his hoodie, and demanded he remove his shoes and hand over his mobile phone. 

5At that time, your second victim, who is the father of the child, saw this and approached and grabbed you and said, 'what did you do to my son?', and you punched him to the left side of the face.  That is the unlawful assault.  So they are the ugly facts before the court, and there is clearly a serious impact on any young person who is the subject of that type of violent attack and an impact on the adult as well, but for that family and for that young person, there would be lasting impacts and effects. 

6You recognise the seriousness of your conduct.  You are fortunate, as I have said earlier today, you are fortunate that your victim did flee and that his father then intervened, because had the offence been completed, you would have been in a mandatory sentencing situation.

7Turning to your personal circumstances.  Many of those circumstances have great relevance to the sentencing exercise.  You were 18 at the time, 18 and one month I was told, at the time of the offence.  You’re a Torres Strait Islander man who has experienced a difficult childhood, a disadvantaged one, one attended by instability, exposure to trauma, and you have experienced trauma, particularly in the form of physical violence, and there is a distinct lack of nurturing and stability in your childhood experience.  Those experiences have shaped you and are relevant to the sentencing exercise. In that sense, your moral culpability is assessed in light of those formative factors.

8In a thorough plea on your behalf, I was provided with the neuropsychological report of Martin Jackson, the psychological report of Ms Dunn, and a letter from Melana Robinson, and a very helpful outline of submissions by your counsel,
Mr Tom, who told me that you were residing at Bert Williams Aboriginal Youth Services, known as BWAYS, at the time, and had been from December 2023 up until the end of last year where behavioural issues saw you depart.

9The reports, in combination, tell the picture of a person who has had to battle through significant symptoms of ADHD.  It is likely you experienced oppositional defiance disorder in your youth, conduct disorder.  You had been diagnosed with autism spectrum disorder in the past, although Mr Jackson views that as unlikely.  You were raised by your mother in Shepparton.  You were the only child of your parents’ union, but raised by your mother.  When you were six, your mother re-partnered, and you began to experience significant physical abuse at the hands of your stepfather.

10Child Protection became involved and, for a number of reasons, decisive action was unable to be taken until you were 12 years of age.  You have two younger half-siblings who arrived when you were seven and eight years of age, and the family unit was one in which thereafter, and ongoing, you experienced a feeling of isolation and being excluded.  In 2022, I was told you left the family home due to concerns around your mental health and self-harming behaviours, and you were placed in the care of your step-paternal grandmother.  In late 2022 to early 2023, you became homeless, living in refuges and couch surfing, and that period from December 2023 to December 2024 at BWAYS gave you some stability.  You were also supported by VACSAL at that time.

11You attended three high schools – Greater Shepparton College, Notre Dame, and the Shepparton campus of Berry Street School.  You had behavioural and social difficulties at school.  Reports indicate that you were heavily influenced by other students and had a strong need for peer approval, no doubt due to the effects and factors of your disadvantaged and traumatic youth, but also in combination with the disorders I have referred to, your ability to fit in and socialise appropriately, but also to conduct yourself appropriately through school and to engage and concentrate, was severely affected.

12I was told you completed Year 10.  You stopped attending school when you were removed from the family home.  I was told that you were eager to re-engage with further education training and you have expressed an interest in warehouse work which seems to be well and truly within your capabilities. 
Mr Jackson has assessed you as someone who has certainly got average intelligence.  There are issues in relation to some processing parts of your cognitive profile, but at a fundamental level, you have the ability to be engaged in semi-skilled work such as the warehousing, and it is something that you definitely should pursue with the support of Corrections.

13You have worked at McDonald's for a year at the age of 15, and you also have worked at a fast-food restaurant.  You have used drugs in your teenage years and in particular, Xanax abuse was a feature of the offending before me and I accept what has been reported, which ultimately comes from your self-reporting, but I accept what is in the reports as to the quantities of Xanax you took and your recollection or lack thereof of the offence.  And of course, that in no way mitigates the offending.  It really sends a signal to you, but also to the courts, that you should not use substances because it will lead to offending such as this and the courts have no tolerance for that sort of connection.  If you go down that path again, you are at significant risk of being gaoled.

14The mitigating factors are clear in your case.  The constellation of personality disorders, which I am of the view are substantial and significant, they are the subject of expert opinion.  They are also consistent with your presentation and your engagements and your history, and consistent with what I have been told in the extended presentence report.  The Bugmy[1] principle has application in your case for the reasons I have set out in relation to profound disadvantage.  Parity has some role to play, albeit your co-accused was dealt with in a different jurisdiction under a different sentencing regime, so it is very limited application, but I have had some regard to that. 

[1]Bugmy v The Queen [2013] HCA 37

15You participated in a Koori Court sentencing conversation, and I am satisfied you participated to the best of your ability and engaged well in the conversation.  You did express a level of remorse and insight.  You also expressed a desire to stop taking drugs and associating with negative peers, and to engage in work – to find some work and some purpose and meaning in your life, and warehouse work again was something you mentioned.  And as I have said, it is certainly well and truly within your range of capabilities.

16Your youth is a very important factor, and I will not expand on the principles.  They are set out in both Mr Tom's outline of submissions and also
Ms Stevenson's on behalf of the Prosecution.  There is, in your case, notwithstanding the serious aspects of the offending before me and a developing history, there is still a great community interest and concern in rehabilitation for a young person such as yourself, and a disposition, if within the scope of what is appropriate, that avoids you mixing with negative influences in a custodial setting which might have a deleterious effect, particularly because, on the materials before me and the expert opinion, I am satisfied that you are impressionable and subject to peer influence.

17So your youth is a significant factor, as are your pleas of guilty, and I have taken into account, as I have said, in a mitigatory way, your engagement and participation in the sentencing conversation.  I also had regard to the very helpful Prosecution submissions which, with some care, I have regard to all of the sentencing factors, including important factors of general deterrence, specific deterrence also in your case, but also denunciation.  The community simply does not tolerate these sorts of violent offences out in the community on the street, particularly on a young vulnerable target such as yours, and as I have said, I am giving you a chance in this case, but the community's appetite and tolerance for chances is very limited, and that is perhaps a colloquial way of expressing what I must have regard to and that is, appropriate denunciation of your crime.

18Balancing up all the factors as best I am able, all the competing sentencing considerations, including the importance of general deterrence, I have decided that the appropriate disposition in your case is a Community Corrections Order, and in no small part, that is due to the analysis and consideration of the Prosecution who, given a variety of considerations, have submitted that that is within range, and I am certainly of the same view.  So I will sentence you as follows, Mr Mousley.

19On both charges, that is the charge on the Indictment of Attempted armed robbery and the closely associated Unlawful Assault, I impose an aggregate sentence and that sentence is a Community Corrections Order.  The Community Corrections Order will be of 18 months' duration.  It is with conviction. 

20Special conditions of that order will be 100 hours of community work.  I will credit 50 hours of therapeutic conditions towards that unpaid community work total. 

21You will also be required to attend for drug and alcohol assessment as directed and treatment as directed. 

22You will also be required to attend for mental health assessment and treatment as directed. 

23You will also be required to participate in any offending behaviours programs if you are directed to.  I will leave that up to Corrections to determine if that is necessary or if there is an appropriately available program.

24I will impose judicial monitoring, because as I have said at the outset, I am concerned about, particularly the homelessness, but your lack of direction and some further supervision by me may be beneficial in you being able to complete this order.  So I will set a judicial monitoring session in three months' time and then I will determine from there whether there will be further judicial monitoring sessions and the date for the judicial monitoring will be perhaps on 23 June at 9.30 am.

25Now you will report to Melbourne Corrections within two days.  If you do not report within two days, you will be in breach straight away.  So you have got to report, you have got to do what is directed.  Now do you consent to going on a community correction order?

26OFFENDER:  Yes.

27HIS HONOUR:  All right.  Well that will be prepared, and I will sign it and then you will be asked to sign it. 

28Pursuant to s6AAA, I should say that if it was not for your pleas of guilty, I would have sentenced you to 18 months' youth detention. 

29I make the forfeiture order that is sought. 

30I have to tell you, Mr Mousley, that if you contravene the order or breach the order or any of the conditions of the order, you can be brought back to me for re-sentencing.  Now that can mean if you have you have unacceptable absences, not turning up for supervision appointments, not turning up for drug and alcohol assessment.  Unacceptable absences will mount up and then Corrections will say 'well look we've got to breach him' and it will come back to me, or if you commit further offences. 

31Now what I said at the start, I mean.  Often in these courts when I am giving that spiel about correction orders and if you come back, you are at risk of going to gaol, there is a fair bit of that that is because of general deterrence, because of punishment, because of denunciation.  If someone cannot complete a CCO, the next step is higher up the scale.  That applies with you too, but over and above that, I am concerned that you have some structure and some stability in your life, and if the correction order cannot provide it because you are not engaging or you are not keeping appointments, then I will see a benefit in youth detention, a youth training centre for you because on youth parole you will get that structure. 

32So I am not normally that clear, but in your case I am because, as I said at the start, for a number of reasons that are not of your making, there is not a lot of support and stability there. 

33So this correction order and other supports that are available to you, BWAYS, you can continue engaging with them, or Frontyard, all of these things you have to utilise.  What I want to see is when I see you at the judicial monitoring in a few months' time, that there is some stability, you have got a place to live, you are attending supervision, you have started your community work, you are looking at employment, that would be a good outcome and it is in your hands.

34OFFENDER:  Yep.

35HIS HONOUR:  You can do it.  You have got the ability to make those choices and to work with Corrections and get that all done.  So I am just going to stand down while that is prepared and then I will sign that, and we can give you a copy.

36MS STEVENSON:  Your Honour, just before you stand down, I just want to correct for the court record that the maximum penalty for unlawful assault is three months.

37HIS HONOUR:  Three months, yes.

38MS STEVENSON:  Not six months as ‑ ‑ ‑

39HIS HONOUR:  Yes, it was not with a weapon he actually struck him.  Yes, three months.  Thank you for that, Ms Stevenson.  I will just stand down briefly.

40(Short adjournment.)

41HIS HONOUR:  All right.  I have signed that now.  We will pass it down to you, Mr Tom, and you can approach Mr Mousley and he can sign it if it is appropriate.

42MR TOM:  Yes, Your Honour, thank you.

43HIS HONOUR:  All right.  Thanks, Mr Tom.  All right, Mr Mousley, so good luck.  We will get a copy of that for you and if you have got any queries you can speak to Mr Tom about it.  Ms Kinniburgh is also in court here, who I am sure you have met before.  And yes, look I will see you on 23 June and you know you can really take charge of things now and get moving forward, so we will see you then.  And thanks everyone – it was a bit of a drawn-out process, but we got there.

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