Director of Public Prosecutions v Tyedin
[2022] VCC 411
•01 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02020
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW TYEDIN |
---
JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 March 2022 | |
DATE OF SENTENCE: | 01 April 2022 | |
CASE MAY BE CITED AS: | DPP v Tyedin | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 411 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Early Plea of Guilty – Grooming – Child Under 16 – Sexual Penetration – Sexual Assault – Child Abuse Material – Victim Impact Statement – Standard Sentencing – Psychiatric Reports – Serious Offender – Low Risk of Reoffending – No Criminal Record – Remorse – Imprisonment.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:Brown v R (2019) 59 VR 462 - Worboyes v The Queen [2021] VSCA 169.
Sentence:Total Effective Sentence: 4 years and 3 months imprisonment with a non-parole period of 2 years and 4 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr T. Marsh with Ms V. Jones | Lawcorp Lawyers |
HER HONOUR:
1Andrew Tyedin, you have now been in custody for the past 21 days, since 10 March 2022. I expect that this will have been a very difficult time for you and a time very likely spent isolated in quarantine. On 28 October 2021 you were arraigned on indictment M10841132.1, and pleaded guilty to one charge of grooming for sexual conduct with a child under the age of 16, three charges of sexual penetration of a child under the age of 16, one charge of sexual activity in the presence of a child under the age of 16, one charge of sexual assault of a child under the age of 16, one charge of producing child abuse material, and one charge of possession of child abuse material.
Circumstances of offending
2The circumstances of your offending are detailed in the Summary of Prosecution Opening which was tendered on your plea and marked as Exhibit 1. I do not propose to recite this document verbatim. A summary of your offending is as follows;
3In early December 2019, you met the victim, who was 15 years old, by way of the social media application Yubo. After interacting on Yubo, you asked her to communicate via another application, Snapchat. During this period you told the victim that your name was Sam, and that you were 17 years old.
4On 2nd January 2020, you began to ask the victim for photos, requesting particularly that they were ‘pj photos and bikini photos’, that she ‘go naked instead’, and asking her to ‘show me your full pussy and hair close up’. On 4th January, you arranged to travel to Warrnambool to meet the victim for sex and booked a room at the Comfort Inn on Raglan for 9th January. This is the factual basis of charge 1.
5On 9th January you met the victim at the Target carpark in Warrnambool. From there, you both returned to the Comfort Inn on Raglan, where you penetrated the victim with your penis both vaginally and orally. You also penetrated the victim’s vagina with your tongue. These two instances of oral penetration form charge 2 which is a rolled up charge. After going for dinner, you vaginally penetrated the victim with your penis again. Footage taken on your mobile phone also reveal that while at the Comfort Inn you penetrated the victim’s vagina with your fingers on four occasions.
6On 10th January you booked another hotel room, this time at the 8 Spence Motel, for that evening. After checking in, you penetrated the victim’s vagina with your penis. This act of penetration, together with the two instances of penile vaginal penetration at the Comfort Inn, form charge 3 which is a rolled up charge. On two of those occasions you wore a condom, and on the third you ejaculated over the body of the victim. Further footage from your mobile phone shows that you penetrated the victim’s vagina with your fingers again at the 8 Spence Motel. That occasion, as well as the four occasions of digital penetration at the Comfort Inn, come together to make charge 4 which is also a rolled up charge.
7The videos on your mobile phone documenting the sexual engagement across both 9th and 10th January further showed that on two occasions you masturbated your penis while it was close to the mouth of the victim, and together those occasions amount to charge 5 which is a rolled up charge.
8One of the videos also depicts you touching the victim’s vagina with your fingers on 10th January at the 8 Spence Motel, and that is charge 6.
9After 10th January 2020 you did not meet the victim again. Aside from sending several friend requests to the victim on snapchat in January 2021 you have had no further contact with her since 30 January 2020.
10Charges 7 and 8 arose from the police seizure of your Seagate hard drive at the time of your arrest on 23rd April 2021. Examination of that hard drive led to the discovery of a file marked by the victim’s name, dated 11th December 2020, which contained some 354 images, and 50 videos, of the victim. 18 of the videos depict you engaging in sexual activity with the victim across 9th and 10th January. These videos are the subject of charge 7. More generally, 40 of the 50 videos, and 154 of the 354 images, were categorised as child abuse material, and your possession of them amounts to charge 8.
Arrest and procedural history
11The victim’s mother reported this matter to the police on 20th February 2020, after finding sexually explicit images on the victim’s iPhone and iPad. On 23rd April 2021, police came to your home in Doncaster East to execute a search warrant and arrest you. It was during this search that the Seagate hard drive was recovered. You were taken to the Doncaster Police Station to be interviewed and answered ‘no comment’ when allegations were put to you.
Victim impact statement
12The impact of your offending on both the victim and her mother has been significant. The victim described being scared, and not being able to eat or sleep for some months after the incident. Further, she described a loss of enjoyment in activities that had previously brought her pleasure. The victim’s mother described her distress at watching her daughter suffer. Fortunately, it seems that the victim has been able to rebuild and describes that she is stronger than ever. I hope that the victim understands that by accepting responsibility for your offending and pleading guilty at an early stage you are admitting your behaviour towards her was very wrong and in that way provides her with validation, vindication and closure that will assist her to heal.
Nature and Gravity of offending
13Mr Tyedin clearly your offending is very serious and this has been conceded on your behalf by your counsel. The maximum penalties applicable to your offending are an important yardstick when considering the objective seriousness. In this regard the maximum penalty for the sexual penetration of a child under 16 is 15 years and the maximum penalty for the grooming, sexual assault of a child under 16, sexual activity in the presence of a child under 16 and production of child abuse material is 10 years.
14Further, in assessing the nature and gravity of your offending I take into account that at the time of your offending the victim was 15 years of age and you were 30 years of age. At the time of meeting the victim online you represented yourself as a young person named Sam who was only 17 years of age. I consider this deceptive conduct on your part to be somewhat aggravating. I accept that you did not actively continue this deception but it did allow you establish a rapport with the victim and no doubt she felt more comfortable talking with you and agreeing to meet as a result.
15Several of the charges for which you are to be sentenced are “rolled-up” charges. This allows multiple instances of similar offending to be dealt with in a single charge and simplifies my task in formulating an appropriate sentence. I take into account that your offending occurred over approximately one month and that the contact offending occurred over a period of two days. I also take into account that several of the offences were only detected upon review of video recorded by yourself at the time of the contact offending. Additionally, it is apparent that although you retained the videos and images that you had either exchanged or recorded you did nothing to disseminate this material. I accept the submissions of your counsel that there is considerable overlap between the possession of child abuse material and the other offences you face. Further, I accept that many of the usual circumstances of aggravation such as the use of force, lack of consent, intent to inflict harm and breach of trust are not features of your offending.
Standard Sentencing
16Several of the charges to which you have pleaded guilty are standard sentence offences. Sexual penetration of a child under 16 has a standard sentence of 6 years imprisonment and sexual assault of a child under 16 and sexual activity in the presence of a child under 16 each have a standard sentence of 4 years imprisonment. The standard sentence only takes account of the objective factors affecting the relative seriousness of the applicable offence. Standard sentences are to be taken into account as legislative guideposts in the sentencing process.
17In considering the impact of standard sentencing on your case I have considered the decision of Brown v R.[1] In particular, when sentencing for a standard sentence offence I must take the standard sentence into account as one of the factors relevant to sentencing. The standard sentence is not to be viewed as a starting point and it does not affect the established instinctive synthesis approach to sentencing. It does not require or permit two-stage sentencing and does not otherwise affect the matters which I may or must take into account in sentencing. Accordingly, I have taken the standard sentences detailed above into account as one of the factors to consider in my instinctive synthesis of all the relevant factors and will reflect this in the sentence I impose.
[1] (2019) 59 VR 462.
18Further, so far as consideration of current sentencing practices are concerned, s5B(2)(b) requires a court, when considering current sentencing practices for a standard sentence offence, to only consider sentences previously imposed where the relevant offence was subject to the standard sentencing scheme.
Serious Offender Provisions
19Upon sentencing you to imprisonment on charges 1 and 2 your status changes to one of a serious sexual offender. This means that community protection becomes the predominant sentencing purpose.
20Pursuant to s. 6F of the Sentencing Act 1991 I cause to be entered into the records that for charges 3 through to 8 you are sentenced as a serious offender. I note that section 6E applies and that every term of imprisonment imposed by a court on a serious sexual offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any sentence of imprisonment imposed on that offender, whether before or at the same time as that term. That section must, however, give way to some extent to the principle of totality. In this regard I do consider there to be a degree of overlap between your offending as I have already mentioned.
21The prosecutor Mr Brown submitted that the crown did not push for a disproportionate sentence and conceded that there were favourable prospects of rehabilitation in your case.
Personal Circumstances
22I turn now to your personal circumstances. You have recently had your 33rd birthday, and, prior to your remand, had always lived with your parents.
23Your father, who is now retired, was an accountant, and your mother continues to work as a nurse. You are the third of your parents’ four children. You have an older brother, an older sister, and one younger sister. Your childhood was a safe and stable one. Your parents were strict but were also loving and generous.
24In terms of education, you completed primary school without incident and went on to attend Box Hill High School in 2001. You did not enjoy your time there and experienced some bullying. Two years later, you were awarded a scholarship to attend Trinity Grammar, and there completed your secondary education. These were happier years and marked by successive accomplishments. You engaged in music and singing, basketball, football, and you excelled academically, achieving an ENTER score of 93.45. In 2007, you commenced study at Monash University, and in 2012, you graduated, obtaining both a Bachelor of Commerce and a Bachelor of Economics.
25During your years at University you also began to work, and did so in both hospitality and retail roles. Upon your graduation you remained in the retail sector for some two years, before beginning a career in finance in 2014. You enjoyed your employment and worked across a number of roles before being promoted to a sales consultant position in 2017.
26From 2018 onwards, your enjoyment of, and stability at work, began to deteriorate. The Royal Commission into banking, and issues arising from it, led to significant change at your work, with full departments being made redundant, bonuses being withdrawn, and you and your remaining colleagues being required to ‘fill the gaps’ and work outside of your expertise.
27As conditions continued to deteriorate at work, so did other areas of your life. You reported a lack of energy and motivation, a sense of feeling ‘down’, and difficulty sleeping. You began to gamble excessively, placing online bets on sporting events, until you had lost some $25,000. In response to this you developed a ‘strategy based on statistics and patterns’ and continued to bet, ceasing once you had recovered this money. You also had difficulties with severe eczema, which contributed to feelings of being self-conscious and unattractive. I note this condition has now resolved due to medication but by 2019, and into early 2020, the eczema caused such pain that you could not exercise, nor touch soap, and this further exacerbated your waning mental health and self-confidence. It was against this background that your offending occurred.
28You have since been terminated by your previous employer on ‘character grounds’, after your work devices were seized by Police in relation to this matter.
29Despite the building pressures in both your professional and personal life, you maintained positive relations with your family in the years immediately preceding your offending. You were trusted by your older sister to babysit and care for your nephew and your nieces. Similarly, all three of your siblings trusted you to assist your parents with increased domestic responsibility as they continued to age, particularly ‘heavy laborious tasks, house maintenance and gardening’. Both of your parents, and all three of your siblings, continue to offer you their full support. I received letters from each of them and they all attended your plea hearing.
30A psychiatric report from Dr Rajan Darjee was tendered on your plea. He gives a number of very useful opinions including the following:
(a) That at the time of the offending you had developed a significant adjustment disorder with symptoms of anxiety.
(b) There is no evidence that you have a paedophilic disorder.
(c) Factors relevant to understanding your offending include your anxious, avoidant and obsessional personality traits.
(d) You used the relationship with the victim to bolster your fragile self-esteem and to fulfill your sexual desires.
(e) Sexual deviance, coercion and the need for power or control did not play a role in your offending. Nor did attitudes permissive of the sexualisation of children.
(f) Overall, he assesses you to be a low risk of re-offending.
(g) Factors that have played a role in your offending such as low self-esteem, lack of confidence, problems coping with stress and some intimacy difficulties can easily be addressed through general psychological treatment.
(h) You accept what you have done is wrong and have feelings of both guilt and shame.
(i) You will be vulnerable in prison due to your personality traits and problems coping with stress and change. You will likely develop symptoms of anxiety and depression.
31I take each of these factors into account when formulating the appropriate sentence in your case.
Prior convictions
32You have no criminal record at all. I accept that prior to this offending you were a person of otherwise good character. You have a full education and work history and have been a high achiever in regard to both in the past.
Plea of guilty
33I accept your plea was entered at the earliest possible opportunity following a period of negotiation in relation to the charges. Further I accept that you were motivated to plead guilty early to avoid the victim and her mother any further distress.
34Your plea has significant utilitarian value in that it has spared the victim the trauma of having to give her evidence and has spared the court the time and expense of what would have been a reasonably lengthy trial.
35In addition, the Court of Appeal have recently said in the case of Worboyes v The Queen [2021] VSCA 169 at [39], that:
"a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.
36Accordingly, I propose to allow a significant discount for your plea.
Harsh conditions in custody
37The burden of imprisonment during the covid pandemic was also relied upon by your counsel. He emphasized that you are a first-time offender who had never experienced the custodial environment. I commenced my remarks by acknowledging the fact you will have spent your first 2 weeks in custody in quarantine which I accept would have been a very harsh and very difficult for you.
38Further, I take into account that imprisonment generally during the pandemic has been more onerous as there are significant restrictions on visits, courses and other privileges. I also accept there would be significant worry in being confined during a pandemic for both you and your family.
Remorse and rehabilitation
39Mr Tyedin your counsel submitted that you are extremely remorseful for your offending. This submission was supported by the view of Dr Darjee and featured in several if not all of the testimonials tendered on your behalf from family and friends. Further, it was exemplified by your letter of apology to the victim. I accept that you have taken the very important step of accepting responsibility for your offending and that your remorse is genuine.
40I consider your prospects for rehabilitation to be very good in light of your previous good character, the support you have from family, the lesson you have learnt from all of this and Dr Darjee’s assessment of you as a low risk of re-offending. I am of the view that you are extremely unlikely to re-offend in the future.
Sentencing principles
41I consider that the relevant sentencing principles that must be applied in this case are general deterrence, denunciation and just punishment. In my view specific deterrence plays little or no role in the sentencing matrix, given your age, your background and the experience of being woken by four police officers which you described to Dr Darjee as frightening and something that still haunts you. The term of imprisonment that I impose I am sure will sufficiently deter you from offending in the future and I do not expect to see you back inside a court in the future.
42Other sentencing principles that I must apply are parsimony and proportionality. Your counsel urged me to do no more than is necessary to punish you and submitted that this was less than usual given the circumstances of your case. He maintained that a lengthy sentence was not required to bring the message home to you and that a merciful sentence would be appropriate and consistent with the principle of parsimony.
43Mr Tyedin after consideration of all of the above matters, including the oral and written submissions of both the defence and the prosecution, the victim impact statements from the victim and her mother, and all of the tendered material, I have come to the view that the only sentence that can be imposed for the serious offending before the court is one of imprisonment.
44In relation to the offending before the court I sentence you as follows:
| # | Charge | Standard sentence | Sentence | Cumulation |
| 1 | Grooming for sexual conduct with a child under 16 | 9 months | 2 months | |
| 2 | Sexual penetration of a child under 16 (rolled up) | 6 years | 2 years 10 months | 4 months |
| 3 | Sexual penetration of a child under 16 (rolled up) | 6 years | 3 years | Base |
| 4 | Sexual penetration of a child under 16 (rolled up) | 6 years | 3 years | 5 months |
| 5 | Sexual activity in the presence of a child under 16 (rolled up) | 4 years | 9 months | 1 month |
| 6 | Sexual assault of a child under 16 | 4 years | 6 months | 1 month |
| 7 | Produce child abuse material | 6 months | 1 month | |
| 8 | Possess child abuse material | 6 months | 1 month | |
| Total effective sentence | 4 years 3 months | |||
45I now turn to the issue of parole. The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation through conditional release where appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. Pursuant to s11A(4) of the Sentencing Act 1991, these being standard sentence offences I must fix a non-parole period of at least 60 per cent of the head sentence unless I consider that it is in the interests of justice not to do so. In this case, I am satisfied it is in the interests of justice to order a lesser non parole period and accordingly, I order that you serve a period of 2 years and 4 months imprisonment before becoming eligible for parole, which is 55 per cent of the head sentence.
46You have now served 22 days in custody, I declare that this be deducted from the period of imprisonment that I have imposed.
47Pursuant to s. 6AAA Sentencing Act 1991 but for your plea of guilty I would have imposed a term of 6 years imprisonment, with a 4 year non-parole period.
48Pursuant to s 11 of the Sex Offender RegistrationAct 2004 I declare that you are a registrable offender as you have pleaded guilty to 2 class 2 offences, charges 1 and 8, and charges 2 to 7 are considered to be a single class 1 offence as they occurred with a 24 hour period. Pursuant to s. 34 of the Sex Offender Registration Act 2004 you are required to report for life.
49I make the orders for forfeiture that have been sought by the prosecution and note these orders are not opposed by the defence.
0
2
0