Director of Public Prosecutions v Tyler
[2015] VCC 937
•19 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not)Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMERON TYLER (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 June 2015 | |
DATE OF SENTENCE: | 19 June 2015 | |
CASE MAY BE CITED AS: | DPP v Tyler | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 937 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M. Hennessy | Office of Public Prosecutions |
| For the Accused | Mr L. Gwynn | James Dowsley & Associates |
To ensure there is no possibility of identification, this sentence has been anonymised
by the adoption of pseudonyms in place of names of the accused and victims
HER HONOUR:
1 Cameron Tyler, you have pleaded guilty to one charge of indecent assault, referrable to two incidents on the one occasion. The maximum penalty applicable to that charge is ten years’ imprisonment.
2 Your offending arises out of events which took place between yourself and the complainant, Amy Herbert, on 14 September 2014.
3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with the prosecution opening (Exhibit A).
4 I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and your behaviour was obviously unacceptable.
5 I turn to a brief summary of your offending.
6 On 14 September 2014 you inserted your penis into Ms Herbert’s vagina whilst having, at that stage, a reasonable belief she was consenting. You ceased penetration upon becoming aware Ms Herbert was not consenting.
7 You then indecently assaulted Ms Herbert by rubbing your penis between her breasts and placing her hand on your penis, in both instances without her consent.
8 At the time of that offending Ms Herbert was 17 and a student in Year 11 and you were 18, working as an apprentice builder.
9 You and Ms Herbert had commenced a “relationship” several months prior to your offending and that relationship involved a “sexual part” but “was not sexual all the time”.
10 On 13 September 2014, Ms Herbert went to the home of a friend, Kristen Little, with two other friends, Mia Crosby and Isabelle Peterson, and you contacted Ms Herbert by phone message and asked her what she was doing and whether there was anything you could do for her. Ms Herbert asked you to buy some alcohol and you drove Ms Herbert and Ms Peterson to a store and purchased a bottle of vodka. You drove them both home, dropped them off, kissed Ms Herbert and left.
11 Later in the evening Ms Herbert contacted you wanting to meet you, but then changed her mind, telling you she was “too drunk”. You kept contacting Ms Herbert saying you were bored and lonely and asking her to go for a drive with you. She agreed to go with you after you messaged her, promising her there would be “no funny business”. You picked Ms Herbert up and drove her around the Rosebud area, before parking your car at the Rosebud foreshore.
12 You and Ms Herbert started talking which progressed to kissing each other consensually and you talked her into getting into the back seat of the car. There was then the penile/vaginal penetration.
13 The prosecution accept, as I have previously stated, you had a reasonable belief that Ms Herbert was then consenting to that penetration.
14 Turning to the charge before me. After the penetration stopped, as I said, you put your penis between her breasts. She tried to push you away and was saying “no”. You also grabbed her hand and attempted to place it on your penis but she pulled her hand away (Charge 1).
15 The charge of indecent assault is on the basis that you were at that time aware of Ms Herbert’s lack of consent and your earlier reasonable belief as to consent relative to the penetration was no longer applicable.
16 When Ms Herbert returned to Ms Crosby’s home, Ms Herbert disclosed what had occurred.
17 A short time later, you and Ms Herbert had a further message conversation in which you apologised for your actions.
18 Ms Herbert told her mother and sister what had happened and the matter was reported to police.
19 There was a forensic medical examination of Ms Herbert on 14 September 2014 and on 15 September 2014 Ms Herbert participated in a VARE interview.
20 You were subsequently arrested and interviewed on 16 September and made various admissions, as outlined in the prosecution opening (paragraph 22). I have also read the entirety of your record of interview, the VARE interview and "pretext" recording.
21 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial. In particular I refer to Ms Herbert.
22 You indicated your intention to plead guilty to this charge at the earliest opportunity, after discussions with the prosecution regarding an appropriate indictment. I note you also acknowledged your offending when police questioned you in the record of interview.
23 I accept your plea of guilty was entered at the earliest opportunity and such is relevant in mitigation of your sentence. In addition you were quickly apprehended and admitted what you had done.
24 I also note the contents of the "pretext" conversation and I accept not only your plea of guilty indicates remorse for your actions, but that you have also expressed remorse for it to Ms Herbert.
25 There was a report placed before me by your counsel, Mr Gwynn, from Carla Lechner, Consultant Psychologist, dated 10 June 2015 (Exhibit 2), who saw you for the purpose of a psychological assessment and report for this court hearing.
26 Ms Lechner noted, as do I, that you do not have any prior history of offending and I also note there is nothing pending or subsequent.
27 In Ms Lechner’s opinion you did not present with symptoms of psychological or psychiatric disorder. You did not abuse drugs or alcohol.
28 You had successfully completed Year 12 and commenced a carpentry apprenticeship, although discontinued that due to your court matter.
29 Ms Lechner described you as anxious and depressed about your current situation. In her opinion your involvement in this offending was “due to some degree of miscommunication, coupled with immaturity and some difficulty inhibiting his sexual impulse when already engaged in sexual contact”. She said you now appreciated that “no means no” and had expressed regret for your offending to Ms Herbert. Ms Lechner advised you to seek counselling from a psychologist specialising in sexual matters.
30 Ms Lechner also referred to your background and history. You are currently 19 years of age. You described your home life as "mostly good". You are not currently in a relationship.
31 You grew up in a south-eastern suburb and attended the local primary school from Prep to Grade 6. Your parents were from Europe and at that time did not speak English at home. As a result you struggled with English for some time. Once you mastered the language, you believed you were a “Straight A student”.
32 You described being a loner at school, although had no behavioural issues.
33 You then attended the local Secondary College until you completed Year 12.
34
You then commenced, as I said, a carpentry apprenticeship, however after
12 months, left that as a result of this hearing.
35 You are currently employed on a part-time casual basis at the local cinema complex and also working with your father. After this hearing you are hopeful of obtaining work in the timber industry.
36 At interview with Ms Lechner, you evidenced symptoms of a “moderate level of depression”. Your low mood appeared to be reactive to your current situation and pending court hearing. You were distressed at being described as a “rapist” within your local community.
37 Whilst not formally assessed, Ms Lechner was of the opinion you were likely of “average intelligence”, and generally able to reflect on the impact of your behaviour on yourself and others.
38 You denied use of all drugs, except marijuana. You rarely consumed alcohol.
39 Turning to your offending behaviour, you made no attempt to shirk responsibility or to minimise the seriousness of your offending. It was your belief that Ms Herbert was “flirting” with you. The nature of the indecent assault was sexual activity that had previously been engaged in between both of you. You said you were, “Getting lots of mixed message. I thought she liked me”. You expressed regret for any distress you had caused Ms Herbert. Importantly, according to Ms Lechner, you understood that even if the non-verbal cues did not match the verbal cues, you now understood that “no means no” and that you must immediately inhibit sexual behaviour.
40
In the opinion of Ms Lechner, you did not suffer any sexual dysfunction or symptoms of a psycho-sexual disorder, however, she suggested you make contact with a psychologist who specialises in sexual matters. She referred you to an appropriate practitioner and she regarded you as being insightful and receptive to psychological work directed towards emotional and sexual intimacy. Despite Mr Gwynn’s submissions that such was not required, I urge you to follow up the inquiries you have made to date, as recommended by
Ms Lechner.
41 In the opinion of Ms Lechner, you presented as a “low risk” of future sexual offending.
42 I also received a written outline of submissions from Mr Gwynn (Exhibit 1) and he addressed those during oral submissions.
43 Mr Gwynn submitted your offending occurred over a very short period of time and in the context of a sexual relationship that existed between yourself and Ms Herbert. Immediately following your offending you regretted your actions and contacted Ms Herbert and apologised. In addition you told police you were sorry for your actions.
44
Mr Gwynn relied upon your youth, 19 at time of sentence, and limited life experience, referring to some support for the latter in the report from
Ms Lechner to which I have referred.
45 Mr Gwynn submitted your offending could be categorised as at the lower end of the scale of seriousness. Whilst I note this is a charge relating to two separate acts, albeit it one charge and one occasion, I agree with that submission.
46
Turning to matters in mitigation of sentence. Mr Gwynn relied upon your early plea of guilty as having facilitated the course of justice and that Ms Herbert was not cross-examined. Your plea was, he submitted, indicative of remorse and
I accept that. I also accept your plea of guilty was entered at the earliest opportunity, following resolution to a suitable indictment.
47 Mr Gwynn referred to your remorse expressed in your record of interview and also to Ms Herbert.
48 I am conscious, as I have said, you do not have any prior criminal history and nor is there anything subsequent or pending.
49
In addition you are a “young offender”, and as such, the principles in
R v Mills[1], apply when sentencing you. Your rehabilitation is an important sentencing consideration.[1][1998] 4 VR 235
50 Mr Gwynn also relied upon the ongoing support you have of your family members. You live with your family and they were aware of your offending behaviour. Mr Gwynn referred to your mother’s serious ill health and I am not surprised that her ill health distresses you.
51 Mr Gwynn submitted the proceedings involved for your offending had had a deterrent effect. In particular having been charged with rape, a more serious offence than that now not before the court. Mr Gwynn submitted you had been shamed in the community, with references to you in either text messages or perhaps the media.
52 You also had a strong employment history, although it ceased your apprenticeship as a result of these proceedings. You were, as I have said, now working with your father as a window installer and working part-time at the local cinema.
53 Mr Gwynn also relied upon Ms Lechner’s conclusion you did not present with any disorder, including psycho-sexual dysfunction. As such there would be nothing, he submitted, standing in your way of your rehabilitation. He also relied upon her assessment of you as a low risk of re‑offending.
54 You did not have any ongoing issues with drugs or alcohol use and had indicated a preparedness to commence personal counselling, as suggested by Ms Lechner. I urge you participate in that, as it will help ensure you do not return to court for sexual offending.
55 I accept, as submitted by Mr Gwynn, you have excellent rehabilitation prospects and such is relevant when sentencing.
56 I note Ms Herbert has been given the opportunity to provide a victim impact statement, however none has been forthcoming.
57 Mr Gwynn submitted, taking into account all relevant sentencing considerations/principles, I could adjourn this proceeding and release you on an undertaking. Further Mr Gwynn submitted that in the circumstances of your offending and taking into account all matters in mitigation, referrable to s8 Sentencing Act 1991, it would not be necessary to impose a conviction for your offending.
58 Mr Hennessy, who appeared on behalf of the prosecution submitted that either a community correction order or an adjourned undertaking would be within the range of appropriate sentences for your offending. As to whether an adjourned undertaking be with or without conviction, Mr Hennessy obtained further instructions during the course of the plea hearing and submitted that a without conviction disposition would be within the range of appropriate sentences.
59 There is no doubt your offending behaviour is serious, and I hope your experience in the court system has at least taught you that. There are very heavy penalties for sexual offending which involve terms of imprisonment. I do, however, regard the circumstances of your offending behaviour as somewhat unusual and further the matters in mitigation of your sentence are significant. As such I have determined to accede to the submission by Mr Gwynn.
60 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as general deterrence, which is important in a case such as this.
61 In my opinion whilst I am concerned about the two instances that constitute the charge of indecent assault, they were close in time, ie: part of the one incident. You also do not have any prior court appearances. As such, specific deterrence need not loom large in the sentencing process.
62 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re‑offending. I am comforted in that regard by the conclusion/opinions of Ms Lechner. The need to protect the community will be further lessened, should you undertake and participate in sexual offence counselling, or sexual counselling.
63 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
64 As I said, I have been asked not to record a conviction for your offending.
65 Among the matters I must consider in the exercise of my discretion is the nature of your offending, your character and past history, and the impact of a recording of a conviction on your economic or social wellbeing, or upon your employment prospects and I have considered all those matters.
66 In your case I have decided not to record a conviction.
67 I sentence you as follows.
68 On charge 1, without conviction, I adjourn this proceeding for 3 years from today’s date, which is 19 June, up to 18 June 2018, upon you giving an undertaking with the following conditions:
(i) That you appear before the court if called upon to do so during the period of the adjournment and at the time at which the further hearing is adjourned, ie: 18 June 2018, if called upon to do so.
(ii) That you be of good behaviour during the period of the adjournment, that is, the next 3 years.
69 I do not propose to order any further conditions.
70 The prosecution made application for a forensic sample. I heard submissions from both Mr Gwynn and Mr Hennessy in this regard. In the circumstances, I do not intend to make the order sought.
71 By virtue of your being sentenced for the charge of indecent assault, you are subject to the Sex Offenders Registration Act. Such is mandatory for a period of eight years.
72 In a moment my Associate, Ms Jackson, will approach you to sign documents acknowledging receipt of the paperwork, if you like, which tells you a bit about the Registration Act. By signing you are not being asked if you consent to that order being made, I have made it, the order is mandatory, but you have to sign for receipt of the documents. If you do not want to sign for them, then do not. I have made the order and it is a period for 8 years, as I have said.
73 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of this charge following jury verdict, I would have sentenced you to a term of imprisonment of 20 months and set a non-parole period of 10 months. In other words, you would have gone to gaol.
74 Pursuant to s18(4) Sentencing Act 1991, I assume this is right, for completeness, I note you have not spent any days in custody by way of
pre-sentence detention, should I need to revisit this sentence, which of course I hope I do not.
75 Any other matters?
76 MR GWYNN: No.
77 HER HONOUR: No, all right. Just stand for the moment Mr Tyler.
I think you had a very good day today. In fact in my years sitting as a judge,
I have never given anyone an undertaking without a conviction. So you have had a very good day today. I will not be a good day if you breach that undertaking, because you will come back before me. Beware, sexual offending is regarded very seriously by this court, not just me, this whole court, the court system generally. Further offending, you run a risk of going to gaol. No means no. Make sure you get full and absolute consent verbally before you enter into any form of sexual activity with a partner.
78 All right. Now, he is going to have to sign these documents, all right?
79 MR GWYNN: Yes, Your Honour.
80 HER HONOUR: So if you could do that. I
81 MR GWYNN: Those documents have been signed, Your Honour.
82 HER HONOUR: Yes, sure.
83 MR GWYNN: Can I also just let Your Honour know, just for Your Honour's information? It is in relation to the counselling issue.
84 HER HONOUR: Yes.
85 MR GWYNN: I think I made submissions - - -
86 HER HONOUR: You did.
87 MR GWYNN: - - - the other day that he'd attempted to make contact with a counsellor, as referred by Ms Lechner, of his own volition, and not had any luck with that. He has managed to secure an appointment and he's going to commence that counselling, as indicated, and he has his first appointment next Wednesday.
88 HER HONOUR: Yes, good. I encourage it.
89 MR GWYNN: Indeed.
90 HER HONOUR: Right, Mr Tyler, I do not want to see you again.
91 Anything further?
92 MR GWYNN: No, Your Honour.
93 MS SKINNER: Nothing further, Your Honour.
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