Director of Public Prosecutions v Tyson
[2024] VCC 1603
•11 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00120
CR-24-00117
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON MATTHEW TYSON |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August & 11 October 2024 | |
DATE OF SENTENCE: | 11 October 2024 | |
CASE MAY BE CITED AS: | DPP v Tyson | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1603 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Common assault – Sexual assault – Causing injury recklessly – Contravention of order intending to cause harm or fear for safety – Robbery – False imprisonment – Contravene conduct condition of bail – Relevant criminal history – Aboriginal offender - Delay – Verdins 5 – Very guarded prospects of rehabilitation.
Legislation Cited: Crimes Act 1958 ss 18, 40, 75; Family Violence Protection Act 2008 s 123A(2); Bail Act 1977 s 30A(1); Sex Offenders Registration Act 2004 ss 11(1), 11(3); Sentencing Act 1991 ss 18, 6AAA.
Cases Cited:Sayer v The Queen [2018] VSCA 177.
Sentence: Imprisonment for a period of 3 years and 6 months with a non parole period of 2 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Roodenburg | Office of Public Prosecutions |
| For the Accused | Mr C Hooper | James Dowsley & Associates |
HIS HONOUR:
Introduction
1Jason Matthew Tyson, you have pleaded guilty to:
(a) one charge of common assault contrary to Common Law, which carries a maximum penalty of 5 years imprisonment (Charge 1);
(b) one charge of sexual assault contrary to s 40 of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 10 years imprisonment (Charge 2);
(c) one charge of recklessly causing injury contrary to s 18 of the Crimes Act, which carries a maximum penalty of 5 years imprisonment (Charge 3);
(d) one charge of contravention of order intending to cause harm or fear for safety contrary to s 123A(2) of the Family Violence Protection Act 2008, which carries a maximum penalty of 5 years imprisonment (Charge 4);
(e) one charge of robbery contrary to s 75 of the Crimes Act, which carries a maximum penalty of 15 years imprisonment (Charge 5); and
(f) one charge of false imprisonment contrary to Common Law, which carries a maximum penalty of 10 years imprisonment (Charge 6).
2You have also pleaded guilty to the following related summary offences:
(a) one charge of without reasonable excuse contravene any conduct condition, namely to report to the Melbourne West Police Station contrary to s 30A(1) of the Bail Act 1977 (‘BailAct’), which carries a maximum penalty of 3 months imprisonment (Summary Charge 6); and
(b) one charge of without reasonable excuse contravene any conduct condition, namely comply with an Intervention Order contrary to s 30A(1) of the Bail Act, which carries a maximum penalty of 3 months imprisonment (Summary Charge 12).
3You have also admitted your Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5At the time of the offending, you were 42 and 43 years old and residing in Melbourne. You are an Aboriginal male originally from the Northern Territory. You came to Victoria in 2020.
6The victim in this matter is Fiona Reed[1] who was 44 and 45 years old at the time of the offending. She was residing in a women’s only refuge in Port Melbourne. The victim has a cognitive impairment and is diagnosed with schizo-effective disorder for which she is medicated.
[1] A pseudonym.
7You had known the victim for approximately two years at the time of the offending. The victim describes your relationship as ‘just friends’ however you have previously referred to the victim as your girlfriend. In the past, you have consensually masturbated the victim which she described as for ‘healing purposes’ only and that you are ‘not going out or anything’.
Incident 1
8On 26 November 2022, you and the victim were at her apartment in Port Melbourne. You had been staying there for the previous three days.
9At approximately 11:00am, the victim was lying in her bed, naked from the waist down and you were lying on the ground, next to the bed. You sat up on the victim’s bed and started to massage her feet and legs. You continued to massage further up the victim’s legs and she asked you to masturbate her vagina, which you did with your fingers. You masturbated the victim until she had an orgasm. The victim wanted to rest and started to sleep in her bed.
10You woke the victim up by massaging her. She told you to stop and said ‘I just want to sleep’. You kept massaging her legs and body, preventing her from sleeping. The victim said, ‘don’t massage me’, ‘I don’t want to be touched’. You kept massaging her body and she said ‘no’.
11You climbed onto the bed and climbed on top of the victim. She said ‘no’ and you laughed.
12You kept touching the victim’s body. She elbowed and kicked you and pushed you off her. You became more aggressive and began arguing and yelling. The victim screamed for help.
13At 11:36am witnesses were in the neighbouring apartments and heard the victim screaming for help. They called ‘000’ asking for police. One of the witnesses told emergency services; she could hear a male versus a female, she knew the female, and she could hear the female yelling at a male. She also used her phone to audio record the victim’s yelling.
14You fought to physically gain control of the victim to stop her from yelling. The victim fought back causing minor scratches to your face and arms. You wrapped your arm around the victim’s neck from behind and choked her to stop her physically attacking you. You placed her in a headlock, applying pressure to her throat with your forearm. You cut off the victim’s air supply and she lost consciousness. She had scratches and red marks on her neck from the strangulation (Charge 1 – common assault).
15Whilst the victim was unconscious, you pulled out her tampon and momentarily touched the outside of her vagina. This action caused the victim to wake up and scream (Charge 2 – sexual assault).
16You got off the bed and moved away from the victim, trying to calm her down. You found a new tampon and gave it to her, then you made her a coffee. At 11:39am, the victim called ‘000’ requesting police attendance. She told the operator, ‘there is a person in my house that strangled me and he won’t go…he choked me, he hurt me’. You heard the victim and thought she was pretending to make a ‘000’ call to trick you.
17A short time later, you and the victim left the address together to go to the bank as previously planned. At approximately 11:45am, you returned to the Port Melbourne address where police were waiting. Senior Constable Dexter spoke to the victim who provided a description of what had happened. SC Dexter observed a red mark on the victim’s neck and noticed she had a raspy voice. The victim stated she did not want to attend hospital or provide a statement to police.
Arrest
18You spoke to police and stated you had chocked the victim. You were arrested and conveyed to St Kilda Police Station. Police obtained statements from neighbours and took photographs of the victim and her injuries. The victim did not want further police involvement at that time.
19You were formally interviewed and made the following admissions that:
(a) the victim was assaulting you, so you grabbed her by the neck to defend yourself;
(b) you held her like that for two or three minutes, just to make her settle down;
(c) the victim lost consciousness for two minutes, or maybe 60-70 seconds;
(d) the victim was lying there, and you felt her up and pulled out the cotton from her vagina;
(e) she did not give you any indication she was ok with you doing what you were doing;
(f) she wore a t-shirt but not pants;
(g) her vagina was sticking out. That’s why you touched her;
(h) while she was unconscious, you grabbed her vagina; and
(i) you touched her vagina immediately after you choked or strangled her.
20Detective Senior Constable Mayne attended St Kilda Police Station and obtained a DNA mouth scraping from you and photographed the minor scratches caused by the victim. You were remanded the next day. On 27 November 2022, you were released on bail with a condition that you report to the Melbourne West Police Station every Monday between 6:00am and 9:00pm.
21You failed to report on 12 December 2022 (Related summary offence – contravene condition of bail).
22On 27 November 2022, the victim attended Bayside SOCIT to participate in a Video Recorded Evidence (VARE) statement. She reported having soreness in her throat and trouble swallowing as a result of the strangulation.
Incident 2
23On the same day, 27 November 2022, a Family Violence Intervention Order (Interim) was granted. You were the respondent and the protected person was the victim. The order had full conditions including not to:
(a) commit family violence against the protected person;
(b) intentionally damage property of the protected person or threaten to do so;
(c) attempt to locate or follow the protected person or keep her under surveillance;
(d) contact or communicate with the protected person by any means;
(e) approach or remain within five metres of the protected person;
(f) go to or remain within 200 metres of the Port Melbourne address or any other place where the protected person lives, works or attends school; and
(g) get another person to do anything the respondent must not do under this order.
24In addition, at the time of the incident, you were subject to one count of bail with the following conditions:
(a) to reside at an address in North Melbourne; and
(b) to abide by IVO conditions.
25Rachel Smyth[2] and Ashley Griggs[3] reside at an apartment in South Melbourne (the Apartment Block). They are in an intimate relationship and had known the victim socially for approximately one year at the time of this offending.
[2] A pseudonym.
[3] A pseudonym.
26Melanie Asheton[4] also resides at the Apartment Block. She had known the victim for approximately one year and they sometimes took drugs together.
[4] A pseudonym.
27The Apartment Block is a high-rise apartment building and is managed by the Department for Families, Fairness and Housing.
28The Apartment Block is fitted with CCTV cameras in public areas including in the two lifts used by residents and visitors. This CCTV is managed remotely.
29In addition to CCTV cameras, the Apartment Block has a full-time security team that manage access to the building via an air lock foyer system. Access is gained either via a residential key fob or speaking with the security team. Visitors to the Apartment Block are required to sign in on the visitor register and nominate the name of the resident they are visiting. This register is kept and reviewed by the security team throughout each day.
30On 16 February 2023 at 10:52pm, you attended at the Apartment Block to visit Ms Asheton. You stayed in Ms Asheton’s apartment overnight and remained there during the day on 17 February 2023.
31On 17 February 2023, the victim was on a street nearby her home when she saw and spoke with Reece Jones[5] who also resided at the Apartment Block. The victim and Mr Jones walked to the Apartment Block together and, at 1:43pm, took the lift to an upstairs apartment for a short period to purchase drugs from an unknown source.
[5] A pseudonym.
32Mr Jones then returned to his apartment on another floor.
33At 1:51pm, the victim left and went to visit Ms Asheton at her apartment.
34At the apartment, the victim spoke with Ms Asheton who advised that you were in the main bedroom. The victim entered the main bedroom and asked you if you had a pipe. You then asked the victim if she had any gear. She said ’yes’.
35You tried to snatch the drugs from her hand. You and the victim then commenced arguing and the arguing escalated to become physical. You made further demands for the drugs and attempted to pry open the victim’s right hand to get the drugs from her saying ‘give it to me you fucking bitch whore cunt.’
36You punched the victim once to the face and then punched her again to the ribs whilst repeating ‘give me the gear you bitch whore cunt.’ The victim replied, ‘no.’ You punched the victim three or four more times, causing her to lose her balance and fall over. The victim managed to get up and leave, losing her right shoe in the process (Charge 3 – recklessly cause injury; Charge 4 – contravene family violence intervention order).
37At 1:55pm, the victim entered the lift and spoke with witness Ryan Howe.[6] The victim was crying, spoke to Mr Howe and gestured towards the injuries she had sustained to her arms and head.
[6] A pseudonym.
38At 1:58pm, the victim took the lift to visit Mr Jones at his apartment.
39Mr Jones answered the door and invited the victim into his apartment. She was crying, distressed and told Mr Jones she had been assaulted by a male named ‘James’. Mr Jones provided the victim with an ice pack for her head, observing a red and white lump appearing above her right eye. He loaned the victim $50 cash and approximately 30 minutes later the victim left the apartment.
40The victim continued to visit various apartments throughout the Apartment Block. She left the Apartment Building for a short period before returning.
41At 2:53pm, the victim returned to Ms Asheton’s apartment to retrieve her missing shoe. She was of the belief that you would have left the apartment.
42Ms Asheton opened the door and the victim advised she was there to collect her shoe. The victim walked to the main bedroom and realised that you were still present.
43You again asked the victim for gear and when she replied that she no longer had any, you started punching her. You punched her hard to the face and continued punching her until she fell onto the mattress that was on the floor in the middle of the bedroom. You sat on top of the victim and continued punching her in the face saying, ‘give me your gear fucking bitch whore cunt.’ The victim reiterated that she had no gear but, out of fear, she told you that she had money in her pocket. You reached into her pocket and removed the $50 that had been lent by Mr Jones. You placed the $50 on a table adjacent to where the victim was lying (Charge 5 – robbery).
44After sitting on top of the victim for a short period, you started choking her, restricting her breathing and causing her to pass out. When the victim came back to consciousness you punched her in the face once and said, ‘do you want to suck my cock?’ to which she replied, ‘no’ (Charge 3, in part).
45This pattern of strangulation, passing out and coming back around happened three more times, all the while you were sitting on the victim’s chest and intermittently punching her in the face (Charge 3, in part).
46You got up, walked away from the victim and picked up a roll of duct tape. The victim pleaded with you, ‘don’t tape my hands and legs together, don’t tape my legs together.’ You took hold of one of the victim’s legs and placed duct tape around the ankle. She struggled, kicking out, but you managed to grab the second leg and taped her legs together (Charge 6 – false imprisonment).
47You punched the victim a few more times and spat in her face. You then got one of the victim’s arms and wrapped her wrist with duct tape. Whilst you were trying to duct tape both arms together, the victim was screaming for help. You eventually taped her hands together, initially with the duct tape and a dressing gown tie, then you removed the duct tape and only used the dressing gown tie (Charge 6, in part).
48Ms Asheton was in the room and the victim pleaded with her for assistance. Ms Asheton said ‘I can’t help you’ but ultimately left the room saying she was going for help.
49You got some water and rubbed blood from the victim’s face whilst she struggled to the mattress on the floor to lay down and rest. The victim told you she was thirsty, so you got some more water and assisted her to drink.
50You retaped the victim’s hands, taping each hand to the opposite forearm. The victim continued to shout for help and asked you to untie her, but you refused. You punched her, kicked her and stomped on her. You sat on the sofa and smoked a pipe whilst watching the victim and telling her to ‘shut up’ each time she requested to be let go (Charge 6, in part).
51You retrieved a sock and tried to place it in the victim’s mouth in order to stop her asking for help or asking to be let go. Eventually you placed the sock in her mouth and utilised more duct tape to secure the sock in place. The sock restricted the victim’s breathing and she passed out again (Charge 6, in part).
52After some time, the victim was able to push the sock out of her mouth. Ms Asheton returned and the victim again pleaded for help saying, ‘[Melanie] can you go and get someone.’
53At 6:21pm Ms Asheton left the apartment and walked to another apartment to speak with Ms Smyth and Mr Griggs. Ms Asheton advised Mr Griggs that a friend was tied up in her apartment and was being hurt badly. Mr Griggs thought Ms Asheton was just making a scene, so asked Ms Smyth to speak with her.
54Ms Asheton stated to Ms Smyth that no one was believing her that a girl called Fiona was tied up in her apartment. At 6:23pm, Ms Smyth went with Ms Asheton to her apartment. Immediately upon exiting the lift, Ms Smyth could hear the victim calling for help.
55Ms Smyth and Ms Asheton walked to the apartment where Ms Smyth entered the bedroom and saw the victim hog-tied on her hands and knees.
56You said, ‘don’t you dare come in here’ and you tried to push Ms Smyth away.
57At 6:25pm Ms Smyth left to get more help, taking lift to speak with Mr Griggs and contacting 000.
58At 6:26pm Mr Griggs and Ms Smyth returned to the apartment. Mr Griggs armed himself with a pair of scissors. He walked into the bedroom and pushed you and a scuffle ensued. Mr Griggs pushed you from the room, then from the apartment.
59You and Mr Griggs took the lift with Mr Griggs demanding you leave the Apartment Block. During the lift ride, the lift stopped at another level and you attempted to exit, however Mr Griggs was able to push you back inside and demanded you leave the Apartment Building.
60You and Mr Griggs exchanged punches in the foyer, with Mr Griggs trying to get you to leave the building. You left the premises.
61Ms Smyth untied the victim’s feet and escorted her from the apartment, untying her hands and wrist on the way and leaving a trail of duct tape in the corridor.
Arrest
62You were arrested by Acting Sergeant McSpadden on the entry ramp to the Apartment Block.
63Senior Constable Williams attended at the victim’s apartment and spoke with witnesses and the victim. SC Williams seized a number of items.
64Police Crime Scene Officers attended and forensically processed the relevant apartments and the corridor in the Apartment Block. They seized several exhibits.
65Whilst in custody at the St Kilda Police Station you were aggressive and uncooperative with investigators. You refused to leave your cell to participate in a recorded interview and did not wish to engage further. For the safety and welfare of you and investigators no interview was conducted. However, one small piece of silver duct tape was seized from your wrist by police.
66You were charged and remanded to appear before the Melbourne Magistrates Court on 26 May 2023.
67On 17 February 2023 at approximately 7:30pm, the victim was transported to the Alfred Hospital, accompanied by police. At the Alfred Hospital, the victim underwent multiple medical scans and items of clothing were seized by police.
68The victim left hospital on the morning of 18 February 2023 and returned home. Police attended at the Port Melbourne address and located the victim outside on a nearby bench.
69The victim spoke with police, who took additional photographs of her injuries.
70On 19 February 2023, the victim was transported to the Royal Women’s Hospital by police.
71Whilst at the Royal Women’s Hospital, Forensic Medical Officer Dr Liyasha Goonetilleke conducted a forensic medical examination of the victim.
72On 22 February 2023, the victim attended at the Bayside SOCIT office to participate in a (VARE) statement.
Nature and gravity of offending
73Turning to the first incident, while you may have engaged in consensual sexual activity with the victim on an early occasion, she made it very clear to you that she did not wish you to continue touching her when you woke her up. You did not accept this and proceeded to assault and overpower the victim. You placed the victim in a headlock ultimately causing her to lose consciousness. You then sexually assaulted her in the way described.
74Following your arrest in relation to the first incident, an intervention order was taken out by the police where you are the respondent and the victim is the protected person. While that order was in force you committed the offences relating to the second incident which occurred some three months after the first.
75As to the second incident, you attended at an apartment block in South Melbourne and stayed with a friend. The next day the victim was also at the apartment block and saw you there. You began arguing with the victim in relation to drugs which became physical. You verbally abused the victim and then punched her in the face and body a number of times causing her to fall.
76The victim left the apartment losing one of her shoes while leaving. Upon her return to retrieve her shoe you again argued with the victim in relation to drugs. You punched the victim number of times, sat on her and reached into her pocket and took $50 from her. While sitting on the victim you began choking her causing her to temporarily lose consciousness. You continued to assault the victim and then used duct tape to tape her legs together. You punched her, spat on her then used the duct tape to tape her arms together. The victim asked you to untie her, but you punched her again. You then placed a sock in her mouth and used duct tape to secure it. Friends of the victim ultimately confronted you and, following a scuffle, you left the building.
77It is plain from that brief summary of your offending that your conduct in relation to both incidents in abusing and assaulting a vulnerable victim who has a cognitive impairment and suffers other mental health concerns, was appalling, reprehensible conduct. The second incident is aggravated by the fact that you were subject to an intervention order arising from the first incident and you were on bail. I note that in relation to the second incident, your counsel conceded that your offending was unprovoked, callous and protracted.
78While you acknowledge that you were abusing methylamphetamine at the time, and that this may have influenced your conduct, it provides no excuse, and your offending can only be descried as very serious.
79While no formal victim impact was tendered, it is self evident that both incidents would have been frightening experiences for the victim. The victim conveyed to the informant that she is scared to go out, has ongoing physical injuries and is terrified that upon your release you will do something to her.
Personal circumstances
80You are now 43. You were born and raised in Urapunga, a very remote Aboriginal community in the Northern Territory. You have a number of siblings including two brothers from your parents’ union and five half siblings from your father’s previous relationships. You are estranged from your family and you have little support in Victoria.
81You describe your childhood as happy and that you had a good relationship with your mother and father when you were young. You state that your mother became unwell with tuberculosis and your father was often away from home due to his work as a stockman.
82You attended mainstream primary school and later completed high school as a boarder at St John’s Catholic College in the Northern Territory, leaving school in Year 11 reporting you found it ‘difficult to keep up’. You state that you were frequently involved in physical altercations with other students.
83After leaving school, you worked intermittently in various manual labour roles before returning to Urapunga. In 2012 you relocated to Victoria however you returned to the Northern Territory in 2016, working in roadworks. You ultimately returned back to Victoria in 2018. You report that you no longer have any connection with your Aboriginal heritage.
84You report that you have not had contact with your mother or siblings since 2019 and that your father went missing in 2020 following a bushwalk. You report you have three children, two young adult sons and a daughter who is now deceased. You report you do not have contact with your sons.
85You report that you first consumed alcohol at age 15. For much of your adult life you have consumed 15 to 21 drinks per day. You state that you smoke methylamphetamine on a regular basis and that you smoked two bags of cannabis per day from age 15 to 39. You have previously participated in drug and alcohol counselling programs, stating that they are helpful but not something you would repeat in the future. You indicted to a psychologist that you intend to resume using methylamphetamine upon your release as you believe it helps you relax and that you are immune to its effects.
86A neuropsychological report of Dr Rachel O’Meara dated 22 November 2023 was tendered on the plea. You reported to Dr O’Meara that your childhood was ‘really happy’ and that you did not report any major traumatic experiences as a child, other than teasing and some rough behaviour from your cousins.
87Dr O’Meara opined your attentional and language-based deficits reflect longstanding neurodevelopmental disorders such as Attention Deficit Hyperactivity Disorder (ADHD) and a verbal learning disorder. She noted that whilst your frequency of alcohol use would place you at risk of an alcohol-related brain injury, your cognitive profile on testing is not typical of such a diagnosis. Dr O’Meara opines that it is likely that the acute effects of your substance use would have exacerbated your cognitive deficits at the time of the offending.
88In your assessment with Dr O’Meara, you endorsed severe symptoms of depression and anxiety on a formal questionnaire, however your responses were inconsistent with your self-report and presentation. Dr O’Meara opined that there is no clear psychiatric condition indicated by your reported symptoms. Dr O’Meara also stated that a term of imprisonment would not have any adverse impact on your cognitive functioning and instead, may result in a secondary improvement in cognition due to an enforced extended period of abstinence from alcohol and drugs.
89A psychological report prepared by Gina Cidoni dated 14 August 2024 was also tendered on the plea which gives an account of a difficult and traumatic upbringing, which contrasts that of the other material submitted. Ms Cidoni opined that there are significant connections between your adverse childhood experiences and your offending behaviour and states that you have traits of underlying Post Traumatic Stress Disorder (PTSD) and Borderline Personality Disorder (BPD). Both Ms Cidoni and Dr O’Meara concur that you require significant supports such as stable housing and employment and abstinence from drug use to ensure you are protected from re-offending.
90A psychological report of Christine Kennedy, provisional psychologist and Dr David Ball, forensic psychologist dated 26 September 2024 was tendered on the plea. The report opines that you have been negatively impacted by loneliness, homelessness and substance abuse, presenting as a socially detached individual with low self-esteem. The report states that without treatment, the antisocial features of your personality will continue to be socially destructive and will likely increase severe depressive symptoms later in life.
91You report that whilst you have engaged in some employment whilst in custody, you find it tiring and that you do not participate in other programs facilitated by the prison. You continue to be estranged from your family and culture and continue to struggle to take responsibility for your behaviour.
Sentencing considerations
92Mr Hooper who appeared on your behalf highlighted a number of matters that are able to be taken into account in mitigation.
93I first take into account your plea of guilty. Your plea was entered following a sentencing indication hearing before me. The plea was entered before the matter was set down for trial and no witnesses have been cross examined. As such your plea has promoted the course of justice and demonstrates your acceptance of responsibility.
94It was submitted on your behalf that delay is a relevant consideration. The offending occurred in late 2022 and early 2023. While some of the delay is as a result of you initially indicating that you were intending to contest the matter, this does not disentitle you from relying on delay. While the delay is not inordinate, I accept that the matter has been hanging over your head causing you a degree of stress in the context of you already suffering mental health issues. I accept to a degree that delay is able to be taken into account.
95It was submitted by Mr Hooper that Bugmy principles, in the general sense, have application. Ms Roodenburg who appeared on behalf of the Director of Public Prosecutions submitted that on the evidence of Dr O’Meara, there is no nexus between your childhood experiences and the offending in order to mitigate your conduct. I agree. While the evidence of Ms Cidoni suggests you did experience some childhood trauma, I am unable on the evidence to conclude that is the case.
96As to the application of Verdins principles 5 and 6, based on the evidence of Dr O’Meara it appears that your mental health concerns would not be adversely impacted by a term of imprisonment and indeed, if you remain abstinent from drugs and alcohol, may improve. Nonetheless, your mental health picture is complicated and I accept that prison may be more burdensome for you as a result, which is the view held by Ms Cidoni. Thus, in my view Verdins 5 does have limited application.
97As to your prospects of rehabilitation, it is concerning that you indicated to Dr O’Meara that you intend to commence using methylamphetamine again upon your release as you have a perception that it helps you relax and that you are ‘a bit immune to it’. You clearly lack insight in relation to the harmful influence your drug use has on your behaviour and in my view, you will require significant support, supervision and ongoing rehabilitation upon your release. You have an extensive and relevant prior criminal history including numerous convictions for drug related offending and assaults. In the circumstances your prospects can only be assessed as very guarded.
98General deterrence, specific deterrence, community protection and denunciation of your conduct are all relevant sentencing considerations. Others must be reminded that conduct such as yours which involved a sustained assault on a vulnerable woman will simply not be tolerated in our community. Given your relevant criminal history that includes assault, weapons and drug related offending, the sentence must also be constructed in order to deter you from such conduct.
99The prosecution submits that an order pursuant to s 11(1) of the Sex Offenders Registration Act 2004 be made. In the circumstances, such an order is discretionary however an order can be made if the court is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons in the community.[7]
[7] Section 11(3).
100The balancing exercise involves a consideration of the magnitude of the risk, including the degree of likelihood of the risk eventuating and the gravity of the harm, to be balanced against the serious consequences for the offender.[8]
[8] Sayer v The Queen [2018] VSCA 177, [92].
101In written submission the prosecution summarises aspects of your criminal history in reliance of the application including:
·a matter in 2022 when you were convicted on a charge of directing sexual activity at another person which involved standing in front of an 18 year old female on the street rubbing your penis over your pants;
·two charges of aggravated assault in Katherine NT, involving touching two female victims on the bottom after asking if they wanted to ‘make love’; and
·an aggravated assault in the Darwin Supreme Court, involving a woman you had been in a relationship with. The victim had obtained a restraining order against you however you assaulted her on the street.
102The prosecution provided summaries for these matters which I have read. It is submitted that these prior convictions demonstrate a pattern of behaviour against women in public places, including those with whom you had been in a domestic relationship. The prosecution also rely on the current matter as summarised above and your criminal history generally that includes a number of assault related offences.
103The risk assessment conducted by Ms Cidoni assesses your risk of further sexual offending as moderate and your risk of committing family violence as high. Ms Kennedy placed you in the low-moderate category for sexual reoffending. Dr O’Meara stated that your lack of remorse is likely to increase the risk of recidivism.
104In terms of the discretionary test, the prosecution submitted that as you are not involved in any activity involving children or child related employment, registration would not impact you adversely. As such it was submitted that the restrictions imposed on your right to enjoy freedom and autonomy are outweighed by the identified risk, which it is submitted, is significant. Mr Hooper submitted that the offending here is different from the previous matters relied on. Further, that on the evidence your risk to the sexual safety of others in the community is therefore no greater than that of any other person.
105In all the circumstances I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community. As to the second limb of the test, I have balanced the identified risk with the restrictions that would be imposed on your right to enjoy freedom and autonomy, which in my view are outweighed by the identified risk. In the circumstances I will make an order pursuant to s 11(1) of the Sex Offenders Registration Act. The reporting period will be for 8 years.
Sentence
106Mr Tyson, would you please stand.
107Jason Matthew Tyson, on Charge 1 common assault, and Charge 2, sexual assault you are convicted and sentenced to 18 months imprisonment on each charge. On Charge 3, recklessly cause injury, Charge 5 robbery and Charge 6, false imprisonment, you are convicted and sentenced to 2 years imprisonment on each charge. On Charge 4, contravene order intending to cause harm or fear for safety, you are convicted and sentenced to 12 months imprisonment. Charge 5 will be the base charge.
108On Summary Charge 6 and Summary Charge 12, contravene conduct condition of bail you are convicted and sentenced to 1 month imprisonment on each charge.
109I direct that 6 months of the sentence imposed on charges 1, 2 and 6 be cumulative on each other and on Charge 5 making for a total effective sentence of 3 years and 6 months imprisonment. I direct that you serve 2 years and 3 months before becoming eligible for parole.
110Pursuant to s 18 of the Sentencing Act 1991 (‘Sentencing Act’), I declare that 603 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
111Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of 4 years and 6 months imprisonment with a non-parole period of 3 years and 6 months.
112Pursuant to s 11(1) of the Sex Offenders Registration Act 2004 I order that you comply with the reporting obligations of the Act. The reporting period will be for 8 years.
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