Director of Public Prosecutions v Ryan
[2023] VCC 2116
•14 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-02240
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYSHARNI RYAN |
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JUDGE: | HIS HONOUR JUDGE DOYLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 October 2023 |
DATE OF SENTENCE: | 14 November 2023 |
CASE MAY BE CITED AS: | DPP v Ryan |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2116 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: common law assault – criminal damage – co-offenders pleaded guilty to more serious offences – firearm involved - lesser involvement in the incident – drug problem –criminal history– unstable and deprived upbringing.
Legislation Cited:
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 27; R v Verdins & Ors [2007] VSCA 102.
Sentence:59 days' imprisonment and an undertaking for 12 months with condition that you be of good behaviour.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Davison | Office of Public Prosecutions |
For the Accused | Ms T. Skvortsova | Michael J Gleeson & Associates |
HIS HONOUR:
1Tysharni Ryan, you have pleaded guilty to one charge of common law assault and one charge of criminal damage.
2The charge of common assault carries a maximum penalty of five years' imprisonment. Criminal damage has a maximum penalty of 10 years' imprisonment.
3You were born in October 1995, so you are now 28 years old.
4This offending was committed with two co-offenders, Dale Moon and Timothy Snow. I sentenced both.
Background
5The victim in this matter is Michelle Blake, who was an associate of Snow for approximately six months prior to this offending. They would spend time with each other now and then. It seems to me their relationship revolved around drugs.
6On Sunday, 27 March 2022 at approximately midnight Ms Blake got home and found Mr Snow parked in her driveway in Scarlet Drive, Doveton in a light-blue Kia Cerato motor car. She invited Mr Snow inside. At around 1.30 am he left, and Ms Blake went to bed.
7At 10 am the following morning, still 27 March 2022, Mr Snow returned to Blake's address and said that he had left his bag behind and needed to collect it. He went inside and then left within two minutes. Ms Blake did not take any notice whether Mr Snow was carrying anything when he left.
8Later that day, at 1.28 pm, Mr Snow arrived at 41 Jamieson Way, Berwick in the Kia Cerato. As I follow the evidence, you were living at that address at that time, as was Mr Moon. Mr Snow's arrival and the subsequent movements of Mr Moon and Mr Snow were captured on CCTV at a nearby property.
9At approximately 1.53 pm Snow left 41 Jamieson Way carrying a dark‑coloured backpack. He put the backpack on the rear seat before getting into the driver's seat.
10A short time later you and Mr Moon left 41 Jamieson Way separately, walked to the car and got in.
11At approximately 2.35 pm you arrived back at Scarlet Drive, Doveton. Mr Snow parked the vehicle outside 35 Scarlet Drive. Mr Snow got out of the driver's door. You and Moon got out of the back of the Kia. You got out on the driver's side, Mr Moon on the passenger side.
12There are agreed facts in this matter as follows.
13At some stage after getting out of the car you became aware that Snow had with him a sawn-off bolt-action rifle, the size of a large handgun, and Moon had with him a homemade shotgun known as a 'slam gun'.
14You nonetheless continued walking with them towards Ms Blake's residence, knowing that they intended to make demands of Ms Blake for the return of Snow's property and that they had those firearms, with the intention of causing Blake to apprehend the immediate application of force. That is the basis of the common law assault. There is a disputed fact about this, which I will return to.
15At the residence, you and your co-offenders got Blake's attention. She was upstairs with her friend Rhys at the time. She walked downstairs and saw Snow through the side window holding a sawn-off bolt-action rifle and heard Moon making demands. She became scared and ran back upstairs.
16She sent a text to her brother to call the police.
17She heard the flyscreen ripped from the side window. She started a video recording on her mobile phone and made her way downstairs while recording. Snow was at the side window making demands for property or payment. You were to his left. You made no demands.
18The flyscreen on the outside of the window was already damaged. You then caused further damage to the screen by pulling at it. That is the basis of the criminal damage charge.
19Blake told Snow that she did not have what he was looking for and that she had no money. Moon said, 'Open the fucking door', and then, 'Open the fucking door, dog'. Approximately 20 seconds later, Moon discharged the home-made shotgun into the front door of Blake's home, causing shotgun pellets and debris from the door to enter the home. Blake was standing on the inside of the front door and was hit by the debris. She was not injured.
20That is part of the overall circumstances, but you have no criminal liability in relation to Mr Moon discharging the shotgun and nor do you have criminal liability for an attempted aggravated burglary.
21You then walked away, followed by Moon and Snow. The three of you left in the Kia soon after.
22The disputed fact which arose on the plea hearing is whether you knew the gun was loaded. The prosecution submitted that the video footage taken from across the road in Scarlett Street shows you near moon when he is loading the firearm. The defence submitted the footage is not clear enough to draw the inference argued for by the prosecution.
23Knowledge that the firearm was loaded would be an aggravating feature of the common law assault offence. Therefore, the standard of proof is beyond reasonable doubt. In this case that means I must be satisfied beyond reasonable doubt based on the video footage that you saw Moon loading the gun shortly after he got out of the car, and you got out of the car.
24Of course, the context of the disputed fact must be the prosecution concession that you did not know of the presence of the firearm in the car and that you became aware of Mr Moon's firearm at some point before the common law assault. Other considerations are a text message Moon sent after these events indicating your shock at the discharge of the gun, which is consistent with Mr Snow's statement that you came along at Moon's suggestion to get out of the house and that you were freaking out at what Moon did.
25I have watched the footage multiple times in chambers. I accept that Mr Moon performed an action which appears to be the loading of the firearm soon after he got out of the car and that you were close by when he did this. The footage shows you walking near Mr Moon. Your back is to the camera. The footage does not show your face. The footage shows the back and side of your head. Moon's actions in loading the firearm took place over seconds.
26Although your head appears oriented in the direction of where Mr Moon was standing, ultimately, I cannot be satisfied beyond reasonable doubt that you were in fact observing his actions at the time they took place over the few seconds in which they occurred.
27I think it is likely you saw the action, but I cannot be satisfied of this beyond reasonable doubt. The sole piece of evidence on which the prosecution argue you knew the gun was loaded was the video footage, therefore I am not satisfied you had knowledge that the firearm was loaded beyond reasonable doubt. That is my decision in respect of that disputed fact.
28On 27 March 2022 the incident was reported to police at approximately 7.30 pm. Police attended Ms Blake's address. She made a statement. CCTV footage was obtained.
29On Monday, 28 March 2022 police located the Kia Cerato parked outside Jamieson Way, Berwick. Mr Snow was at the address.
30Snow was arrested and taken to Melbourne West police station for interview, after which he made a statement. Mr Moon was also arrested that day, as were you.
31The investigation uncovered a text Mr Moon sent to an associate at 3.06 pm on 27 March 2022 which read:
'I just left a hole in this cunts door t shit herself and made me fucking go easy I'm shattered I brought her soon as I shot the front door she shit cunt they were behind the door and I just up to the door went bang got the bitch'.[1]
[1] Statement of Detective Senior Constable Sophie Templeton dated 29 March 2022 (Depositions, pp118-21).
32That is the text I was referring to earlier in which Mr Moon refers to your shock in the language that he used. There is no dispute that the reference to T in this message is a reference you.
33You were arrested and interviewed on 28 March 2022. You made a no comment interview. You were charged and remanded in custody. You were granted bail on 25 May 2022, and you have therefore spent 59 days in prison relating to these charges. Mr Moon and Mr Snow were remanded in custody.
Guilty plea
34A committal hearing took place in November 2022. In May and July of this year case assessment hearings were conducted in this court. The matter resolved in September 2023. Initially you were charged with more serious offences including, as I understand it, an attempted aggravated burglary. Ultimately the more serious charges were withdrawn and the charges on this indictment were the negotiated outcome. Therefore, in the circumstances, I am required to regard your plea as having been entered at an early opportunity.
35I accept your guilty plea indicates a willingness to facilitate course of justice and some remorse, although it is difficult for me to gauge the true extent of that. You must be given credit for the utilitarian value of your plea. The prosecution, the police and the court have been saved the time and expense of a contested trial and the witnesses the inconvenience of having to give evidence. The utilitarian value of your plea is heightened because you have contributed to the reduction in the court's backlog of cases caused by the pandemic, and you must receive a palpable discount in sentence by reason of your guilty plea. The principles in Worboyes apply in your case.[2]
[2]Worboyes v The Queen [2021] VSCA 169.
Co-offenders
36Mr Moon and Mr Snow, as I have said, pleaded guilty to more serious offences than the charges to which you have pleaded guilty.
37I sentenced Mr Moon on 15 December 2022. He pleaded guilty to attempted aggravated home invasion, reckless conduct endangering serious injury (that related to discharging a firearm), prohibited person in possession of a firearm and committing an indictable offence whilst on bail. I sentenced him to an effective sentence of five years and 10 months' imprisonment with a non-parole period of three years and 10 months' imprisonment.
38I sentenced Mr Snow on 21 April 2023. He pleaded guilty to attempted aggravated home invasion, possession of a firearm in contravention of a firearm prohibition order and criminal damage, I think relating to the car window. I sentenced him to total effective sentence of four years and seven months with a non-parole period of two years and 11 months.
39Given the very different charges for which I am sentencing you and your significant lesser involvement in the incident, I do not regard parity as a significant matter in deciding the sentence to be imposed for your offending. Additionally, in my opinion both the co- offenders had more serious prior convictions by some margin and the mitigating factors were not as powerful as in your case.
Victim impact statement
40As I said when sentencing Mr Snow and Mr Moon, although there is no victim impact statement and although on the video footage Ms Blake seemed reasonably robust at the time of the incident, I accept she was shaken by this incident as anyone would have been. Though your participation was limited you contributed to the fear she felt.
Gravity
41Ms Skvortsova submitted that this was an example of common law assault at the lower end of the spectrum for such offences. I do not agree with that assessment. You were complicit in an assault where a gun or guns were used to instil fear into the victim when she was in her own residence. Even though I do not sentence you on the basis that you knew the gun was loaded or that it would be fired, you did know that the co-accused had firearms which were produced for the victim to see. The firearms were essential to putting Ms Blake in fear and the presence of the weapons elevates the seriousness of this example of common law assault. You went along with an assault knowing that a firearm was present, and that it was it had been produced.
42That said, your knowledge of these firearms was over a short period and your complicity seems to me to be largely based on presence in this case. Additionally, I have read Mr Snow's statement and it seems your participation was a last-minute decision based on Mr Moon wanting to get you out of the house. I have been told you were in the grip of drug and mental health issues at the time. Nonetheless this is a serious matter.
43The criminal damage offence looked at in isolation may not be particularly serious but in the overall circumstances here it is not insignificant.
Personal circumstances
44Your personal circumstances were set out by your counsel during the plea hearing. They are also described in detail in the psychological report of Ms Gina Cidoni. Your childhood and adolescence were unstable and deprived. You had no positive parental role models, and you were moved through multiple unsatisfactory living circumstances by protection authorities. The principles in the High Court case of Bugmy have application in your case and operate to reduce moral culpability and moderate general deterrence.[3] They also serve to explain your prior convictions to an extent.
[3]Bugmy v The Queen [2013] HCA 27.
45You were born in Geelong and raised in Melbourne and Warrnambool. You did not meet your father until after your mother's death. You were raised by your mother, who suffered from bipolar disorder and had a history of excessive alcohol and drug use. Your mother formed a new relationship with a man named Tony, who was abusive.
46You were removed from your mother's care at the age of five and your mother committed suicide when you were 12 years old, according to the documents before me.
47You have an older sister who you do not know. You have two brothers. You have been estranged from them for some time. You have a younger half-sister who is now 18 years old. You are close to her.
48You spent periods of your childhood in residential care in Warrnambool and later in Hamilton. You lived in multiple residential care homes in Warrnambool and then in Portland and Narrawong.
49You were abused physically and sexually in care. You were exposed to drug use and criminal activity. You also later spent time in secure welfare in Maribyrnong and earlier some time in youth detention.
50After you turned 18, you lived in transitional housing in Warrnambool for some time and then moved to Rosebud, where you lived with a friend of your mother. At the age of 20 you lived with a partner at a rental property in Frankston. Like you, he had problems with alcohol and drugs.
51You had a series of relationships where you have been the subject of abuse. As an adult you have had little meaningful employment.
52Your history of drug use dates to when you were 12 years old. You started using cannabis at that age. You used heroin you were 15 years old, and you used amphetamines commencing at the age of 16. You started using methamphetamine at the age of 18. You have also used GHB and had some problems with alcohol. You have attended drug and alcohol counselling in the past.
53Your drug use and involvement in crime are in my opinion connected to the instability and deprivation of your upbringing. You have not been able to break out of that cycle so far. It seems clear enough that your association with Mr Snow and Mr Moon, and hence your involvement in this offence, came about through associating in that milieu.
54In this regard I take into account what Ms Cidoni says about your upbringing at paragraphs 119 and 120 of her report, comments which really mirror the application of the Bugmy principles.[4]
[4] Ibid.
55Eight years ago, you were a passenger in a serious motor vehicle accident. You suffered a head injury. You spent nine days in a coma at the Alfred hospital and you were then in hospital for the following three months. You may have a traumatic brain injury, but this is not established. Ms Cidoni recommends a neuropsychological assessment, but that will not happen in this sentencing process.
56Your current circumstances are that you are living in crisis accommodation which was provided by an organisation called Orange Door. You have also supported by another organisation called Emma House. Through Emma House you have options for drug rehabilitation through the Western Regional Drug and Alcohol Centre and the option of using another organisation, ACSO. You have indicated today that you have in recent times been receiving support for drug rehabilitation.
57The cause of you living in crisis accommodation is that you were subjected to violence in your most recent relationship. Your current living circumstances are very unstable. It is not clear to me where you will be living once this proceeding is concluded.
58You are also pregnant. Your baby is due in May next year as I understand it. I have been provided with a letter from a general practitioner and other documents which confirm your pregnancy.
59It is difficult to take a very positive view of your rehabilitation, but perhaps with focus on your pregnancy and then as a mother next May you will be able to move away from constant drug use and, if you do that, then you have a good chance of staying out of the courts. It will be a matter for you, Ms Ryan, whether you can do that or not.
Criminal history
60You do have a reasonably significant criminal record as an adult over the last 10 years. Most of your prior convictions relate to drug possession offences. You do not have any prior convictions before me for offences of violence. You have never been sentenced to adult imprisonment. You have been placed on community correction orders on several occasions. You have mostly breached those orders. Your prior convictions do not indicate a propensity for violent offending, they indicate an ongoing drug problem which you have been unable to address.
61In my opinion, your prior convictions do not elevate your moral culpability for this offending or increase in any significant way the weight to be given to specific deterrence. Your unstable and deprived upbringing is relevant to the assessment of your prior convictions, which are perhaps not surprising in the circumstances. They do though have relevance to my assessment of your prospects of rehabilitation.
62Ms Cidoni at paragraph 121 of her report makes an assessment saying this:
'Her risk of reoffending is of moderate to high concern. To address and reduce this risk effectively a multifaceted approach is recommended'.
63It seems to me your personal circumstances have changed since she said that in her report and you are going to have to focus on getting some stable accommodation and looking after yourself before you give birth to your child in May of next year so that you can provide your child with the things that you were not provided with when you were a child.
64Based on the report of Ms Cidoni, Ms Skvortsova submitted that Verdins principles 5 and 6 have application.[5] That is dealt with in paragraph 125 of her report and is of some modest weight in sentencing in this case.
[5]R v Verdins & Ors [2007] VSCA 102.
65The prosecution submitted a combination sentence of imprisonment, and a community correction order was within the range of appropriate sentences. Mr Davison the prosecutor, when asked directly, accepted that it was open not to impose a further period of imprisonment beyond the 59 days you have already served.
66Mrs Skvortsova submitted that I should impose an adjourned undertaking in this case.
67Deciding the correct and appropriate sentence in your case is no easy task. You have a history of breaching community correction orders. I accept that because of your upbringing you have some distrust of government authorities, and this has played some part in your failures on previous orders. However, your ongoing drug use has no doubt also impeded your ability to complete orders in the past.
68Currently, you are in transient crisis accommodation, and you want to remove yourself from Warrnambool. Your residential situation is unstable because of the breakdown of your previous relationship.
69Moreover, you are now expecting a child in May next year. Your circumstances have changed substantially in the time that has passed since the offending.
70Given your current situation, I think imposing a community correction order would be setting you up to fail. In your circumstances and having regard to your involvement in the offences I do not intend to impose a further period of imprisonment.
71However, for reasons of general and specific deterrence and denunciation of the offending itself strikes me as serous enough to warrant a period of imprisonment.
Sentence
72Ultimately, in your unusual circumstances, I have decided to impose a period of 59 days' imprisonment for the common law assault and then deduct 59 days as pre‑sentence detention and place you on an adjourned undertaking for the criminal damage offence.
73You will have to sign the adjourned undertaking. It is for 12 months. It requires you to be of good behaviour. You will have to accept services from WRAD or some other comparable drug rehabilitation organisation.
74OFFENDER: I said I'm actually already (indistinct words).
75HIS HONOUR: No, I know that, and you keep doing that, do you follow?
76OFFENDER: Yep.
77HIS HONOUR: That's the good behaviour bond condition. Do you understand?
78OFFENDER: Yep. Yep.
79HIS HONOUR: I know you're doing it, you just have to keep doing it. So you've got to accept services from WRAD or some other comparable drug rehabilitation association.
80OFFENDER: For drug use?
81HIS HONOUR: Yes.
82OFFENDER: Okay, yeah.
83HIS HONOUR: And you've got to provide me, the court, with some documentation that you've been doing that.
84OFFENDER: Okay. And unfortunately, from the start when I - when I was based in Warrnambool when I was placed on bail because of the Restart program and because of the Metropolitan, whenever that situation happened, they actually - none of the places do court reports down there. So that's why ‑ ‑ ‑
85HIS HONOUR: Well, I don't need a report, I just need a document.
86OFFENDER: A document.
87HIS HONOUR: ‑ ‑ ‑ that says you've been undertaking support or rehabilitation for drug problems.
88OFFENDER: Okay.
89HIS HONOUR: All right. Do you follow?
90OFFENDER: Yes.
91HIS HONOUR: It doesn't have to be a report.
92OFFENDER: It was last time it was a report.
93HIS HONOUR: Just confirmation.
94OFFENDER: Yep.
95HIS HONOUR: Right?
96OFFENDER: Yeah.
97HIS HONOUR: And you're to do that - I'll make it, what, Mr Davison, Ms Skvortsova, three months? Within three months?
98MR DAVISON: Yes, Your Honour.
99HIS HONOUR: Yes.
100MS SKVORTSOVA: It's a matter for Your Honour.
101HIS HONOUR: Within three months, do you follow?
102OFFENDER: Yeah.
103HIS HONOUR: We'll fix a date. Can you get me a date? I need a date by which she's to supply some documents. You've got to do this, all right, or you're in breach of the adjourned undertaking.
104OFFENDER: If you think I'm sitting with a smirk on my face to think that I'm going to be ‑ ‑ ‑
105HIS HONOUR: Well, you are smiling.
106OFFENDER: ‑ ‑ ‑ doing that - sorry?
107HIS HONOUR: You have been smiling quite a bit through my ‑ ‑ ‑
108OFFENDER: Yeah, because I'm quite impressed with what the story is at this point. So I'm pretty keen to fight it, you know what I mean? So ‑ ‑ ‑
109HIS HONOUR: Yes, all right. All right. Well, you know what the story is now. I have given you 59 days.
110OFFENDER: Yeah, to change it.
111HIS HONOUR: And I'm deducting 59 days that you've already served. Do you follow?
112OFFENDER: Yeah.
113HIS HONOUR: And I am putting you on an undertaking for 12 months with condition that you be of good behaviour, that you accept services from WRAD or some other comparable drug rehabilitation organisation and that you provide a document confirming such participation by - I will make it 14 February next year.
114OFFENDER: Certainly.
115HIS HONOUR: All right. So all you have got to do is stay out of trouble and provide me with a document that you have been undergoing drug treatment. Do you follow? That is all you have to do. And if you do not stay out of trouble, if you commit another offence in the 12 months, then you breach the adjourned undertaking.
116OFFENDER: I'm aware of all of that.
117HIS HONOUR: And I can resentence you for the criminal damage. Do you follow?
118OFFENDER: Yes.
119HIS HONOUR: All right. Now 6AAA, nine months. I make it nine months with a correction order for nine months.
120HIS HONOUR: All right. Now let's prepare that document so that you can sign it. You've got to sign the document.
121OFFENDER: Yep.
122HIS HONOUR: Can we prepare that. She can come out of the dock now.
123OFFENDER: Now?
124HIS HONOUR: Yes, I'll let you. Thanks, Officer, very much. Yes. We'll just print that out, you can sign it and then you're done. I'll just stand down while that's prepared.
(Short adjournment.)
125Just have a look at that and just check. Ms Skvortsova, just have a - I think that covers it. Yes?
126MS SKVORTSOVA: Yes, Your Honour.
127HIS HONOUR: Mr Davison, do you want to just have a quick look too. I think that covers what I said. All right, if you sign that and I'll sign it and that's it, all right? Just come forward to the table and sign it. Just read it first and sign it. All right?
128OFFENDER: Yep.
129HIS HONOUR: Very well. Now I'll sign it, yes, just have a seat. Just sit back.
130OFFENDER: That's what I was about to do.
131HIS HONOUR: So that's on the criminal damage offence, all right? All right, I think that covers everything, doesn't it?
132MR DAVISON: Yes.
133HIS HONOUR: All right. We'll provide copies of those. All right, thanks to counsel.
134MS SKVORTSOVA: Thank you, Your Honour. Thank you for sitting on late.
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