R v JT

[2007] NSWDC 377

CITATION:	R v J. T. [2007] NSWDC 377 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	17 August 2007
EX TEMPORE JUDGMENT DATE:	27 September 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Aggravated enter dwelling w/i knowing people there: Term of imprisonment of 2 years, 8 months to commence on 3 June 2007 and expiring on 2 February 2010 with a non-parole period of 1 year, 8 months. The offender is to be released to supervised parole when the non-parole period expires. ; Assault Occasioning Actual Bodily Harm (CP): term of imprisonment of 10 months to commence on 3 June 2007 and expiring on 2 April 2008 ; Maliciously destroy property by means of fire: term of imprisonment of 3 years, 5 months to commence on 3 June 2007 and expiring on 2 November 2010 with a non-parole period of 2 years. The offender is to be released to supervised parole when the non-parole period expires.; Assault Occasioning Actual Bodily Harm (TB): Pursuant to s166 the matters are dismissed.; Enter enclosed lands: $10.00 Fine; Contravene Apprehended Violence Order: Fixed term of 12 months imprisonment to date from the 3 June 2007 and expiring on the 2 June 2008.; Resist Police: Fixed term of 12 months imprisonment to date from the 3 June 2007 and expiring on the 2 June 2008.; Domestic Violence order for a period of 4 years to date from the 3 June 2007.
CATCHWORDS:	Criminal Law - Sentencing - Enter dwelling with intent in circumstances of aggravation - Maliciously wound - AOABH - Destroy house and contents by means of fire - domestic violence - indigenous offender - return to house after earlier argument - offences constitute breach of trust - violence administered in presence of children - one victim a 15 year old female - $63K damage to home - on conditional liberty - reasonable subjectives
CASES CITED:	Gladue v The Queen [1999] 1 S.C.R. 680 at [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Dunn [2004] NSWCCA 41 R v Buttsworth [1983] 1 NSWLR 658 R v Thompson and Houlton (2000) 49 NSWLR 383
PARTIES:	Regina J. T.
FILE NUMBER(S):	2007/31/0038

JUDGMENT

1. Violence within domestic relationships is an area of major concern within the community generally. Victims, usually women or children, living in circumstances of domestic violence and perpetrators of domestic violence are of primary focus to police, DOCS, churches, counsellors and all of those who would have families live in domestic peace. Importantly to each other, that is in respect of the victim and the perpetrator, the causes of and solutions for resolving the plague of domestic violence are complex.

2. The criminal law is one of the mechanisms society harnesses to deal with domestic violence. It is at best a blunt instrument for that purpose. Its use for this purpose though is predicated upon an undeniable proposition that the perpetrator of the violence must accept responsibility for behaviour that is criminal in its nature, regardless of the circumstances that prompted him to behave with the criminal violence. Nowhere should this proposition have more resonance than within the indigenous communities where domestic violence is rampant.

3. Jay Tyson does not perceive himself as a man of violence, particularly a man of violence towards women and children. He sees himself as a man of talent in the performing arts; as a man who loves and is able to interact positively with children. True he is both of these things. He is also a man who exhibited disinhibited violence to his wife and in so doing has punched a fifteen-year-old girl seeking to rescue his primary victim. He should make no mistake, these are acts that a man of violence performs.

4. On 3 September 2006 this man of artistic talent at Narrabri (a) knowing a person was inside, entered his then partner’s dwelling with intent to maliciously damage property; (b) maliciously wounded his then partner, TB; (c) assaulted one fifteen-year-old girl named Chloe by occasioning to her actual bodily harm; and (d) by means of fire maliciously destroyed the house and contents of his then partner, TB, in an unbridled display of domestic violence. Today he is to be held accountable for his criminal conduct.

5. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this court, committed by this offender, harming this victim in his community Gladue v The Queen [1999] 1 S.C.R. 688 at [80]. My initial task requires an assessment of what is called the objective criminality of the offence before the court. I will also need to have regard to matters personal to the offender, which are called subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the court relating to the offence and to the offender. My fact-finding task has been circumscribed to some extent in that the parties have tendered an agreed set of facts and an addendum to those facts to which I shall shortly return. It is sufficient at this point that I remind the court a judge is not a party to agreed facts. The tender of the agreed facts does not relieve him from his fact-finding responsibility; it simply limits the material from which facts may be found.

6. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly. It is the more difficult in domestic violence cases because invariably an offender regrets or is sorry about the domestic violence, only for it to occur again in the future. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, and finally of course the ultimate term of imprisonment or other penalty that is to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that sentencing should have as its primary focus the protection of the community will also need to be determined; see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts

7. In September 2006 TB was living with four children and her niece in Narrabri. She had been in an on-off relationship with the offender since 2003 it says here, although it may have been longer. He is the father of the youngest child born on 24 August 2005. In September 2006 he was living in Dubbo on bail conditions, one of the conditions being that he was not to be in Narrabri. On 1 September he travelled by bus to Narrabri and stayed the night with Ms B and the children. The following night he and his then partner went to a hotel. The youngest child, his child, was babysat. Two other children were with their father in Wee Waa, and the oldest boy, a boy called Casey, and the niece of TB, a girl called Chloe, remained at the house.

8. The couple remained at the hotel until just before midnight. They moved from that hotel to another hotel where they stayed for a short time. In the second hotel they had an altercation. TB told the offender that she was going to the toilet and once away from him took the opportunity to return to her home in a taxi. Upon her arrival she woke the teenagers and told them that if the offender came they were to tell him she was not there and not to let him inside.

9. He arrived by taxi, tried to get into the house, called out to be let in and knocked on the door and windows. A neighbour arrived home by taxi and joined the offender, talking to the fifteen-year-old girl about the offender being let in. The neighbour left and while the offender was at the front of the house his bag and, importantly, his telephone were left outside the back door for him and he was alerted to that fact. He retrieved his bag and I am satisfied he retrieved his telephone. He climbed into the house through a kitchen window, retrieved some clothing and spoke briefly with the two children then left. The house was secured and the front door barricaded. That can only be because of a past history of domestic violence.

10. The offender was spoken to, as it turned out, by police in Cooma Road at around 2.30am. He was at that time attempting to hitch-hike. He was seen to be in possession of a red cigarette lighter. Police conveyed him to the outskirts of Narrabri near a 24-hour truck stop. He was there dropped off. However just before 5am he returned to his partner’s house and demanded that he be let in, indicating that he would smash his way in. Ms B used the house phone and spoke to him on his mobile. That is why I know he had his mobile with him. She pretended she was at her father’s place and told him to leave. He did not. Because of his aggressive state Ms B told the children to let him in the back door. She was content to hide in one of the bedrooms with a cordless phone.

11. When he gained entry to the house he did so intending to damage property in it. He pulled cords from the stereo and computer, he threw the stereo speaker to the floor. He said to the young fifteen-year-old boy, “You know what I’m like…I’ll break all this shit in this poxy house.” The parties are agreed that there was no evidence to suggest that he had formed any intention to burn the premises before this assault on his partner.

12. He checked all the rooms looking for the phone. He used the pager facility to trace it. Having traced the phone he found of course his then partner, and shut the bedroom door. He threw her on the bed, he commenced to hit her. She was screaming, she called out to the children to ring the police. That can only be in circumstances where she was fearful for her safety. In the lounge room Jay Tyson grabbed her by the hair, flung her to the floor, kicked her as she tried to get up, then stomped on her head and it is agreed by the parties a number of times, upwards of eight.

13. The fifteen-year-old girl, Chloe, tried to stop him, but he punched her and then dragged his former partner by the hair. She got to a lounge and the fifteen-year-old girl sat on top of her I am satisfied to rescue her. Jay Tyson continued to throw punches. He grabbed his then partner by the back of the head, forced her head into a glass table and in so doing cracked the glass of the table. A moment’s pause and understanding that glass that is used to make tables is usually a safety glass so that it does not break easily, suggests considerable force must have been used to achieve that result.

14. His partner was on her knees in front of the lounge. The offender grabbed an iron in the room. He hit TB in the head with it some three times saying, “You rang the police, I may as well go, may as well do it, right to the end now. I’m going to gaol anyway so I’m going to finish it.” The iron came out of his hand and TB was able to throw it away. She got to her feet and ran out the back door. She was chased by the offender who hit her in the back of the head as she went down the stairs. Once outside it would seem she was able successfully to hide from him.

15. The offender remained in the house alone for a time, then came downstairs flicking his cigarette lighter. He went to a cupboard under the house and set fire to some clothing. Ms B saw the flame inside the house, ran to the back stairs but the door was locked. She went back down to get a hose and saw the offender in front of the house. He said, “Fuck what have I done.” Police, ambulance and fire brigade all attended. The house was totally destroyed.

16. His then partner was taken to Narrabri Hospital and examined. She had a large bruise over her mid forearm and a centimetre full thickness laceration to her scalp that required suturing. Technically speaking that is the wound with which he has been charged. Her upper lip was swollen and grazed and she had swelling and bruising to her face and upper chest. The fifteen-year-old girl had swelling to her cheek and abrasions to her arm.

17. The offender was arrested, taken back to Narrabri Police Station. He took part in a formal interview later that day and admitted to hitting his then partner “a couple of times in the head”, question 176 on p 7, and to having “lit up the house”, question 195. He declined to provide the police with any details of how he lit the fire, but he agreed he used the lighter, question 237, and lit the fire inside the living room of the house, 239. He denied having stomped on her head. He was thereafter charged.

18. In his evidence, although the offender denied being an alcoholic, he accepted that he and his partner “were drunk pretty much most of the time when we were drinking”.

19. His evidence was that he spent from fifty to one hundred dollars per week on alcohol, although he told Probation and Parole he had spent one hundred dollars drinking that night. Drinking one hundred dollars per week or power drinking one hundred dollars per night suggests severe alcohol problems. His evidence was he was pretty proud he had never hit a woman, as I understood what he was saying, prior to this incident. His criminal antecedents and the fact that the house was barricaded would strongly suggest otherwise. So too would the on again off again nature of the relationship suggests that there were domestic tensions, quite probably relating to domestic violence.

20. His evidence was that he returned to the premises to retrieve his mobile phone. Such a proposition is not only contrary to the agreed facts but contrary to the mechanism by which he comes to realise his partner is in the house. He was talking to her on the very mobile phone he claimed in evidence he had returned to retrieve. He claimed the violence occurred because she started punching him so he started pushing her. Such a scenario does not fit well with him using the landline pager to locate her in the closet, does not fit well with the agreed facts of pulling cords from stereos and computers and throwing a stereo speaker to the floor or entering the house with an intent to cause malicious damage.

21. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of an offender. That is done by comparing objectively the criminality exhibited in the instant offences with criminality of offences of a similar kind. It is in this way the seriousness of the criminality of these offences can be evaluated. Quite clearly the objective criminality has an important impact upon the overall sentencing.

22. It goes without saying that the fundamental right of all citizens is the right to the integrity of their body and in this case the right to live in their own home without it being damaged. Put simply, no-one, not even officials of the government such as police or corrective service officers have the right to harm anyone without some lawful authority. While that authority make take various forms, absent lawful authority any harm coming to another is viewed as a breach of the criminal law because it is a breach of that fundamental right that citizens have to the integrity of their body or their living space. Any authority of a male to chastise his partner has long, long been abolished in our law. In this country violence within a domestic situation is regarded as a crime subject to the same maximum sentence that crime would carry if committed against other citizens outside the domestic situation. There is no law saying that if you wound a stranger in a pub with a broken beer bottle the maximum penalty is seven years but if you wound your partner in the back yard in the same way the maximum penalty should only be a rap over the knuckles. One of the prime purposes of sentencing is to protect the community.

23. One of the largest groups in the community at peril from males are female partners from abusing male partners. As I said earlier a considerable percentage of that group are indigenous women. The law seeks to protect the whole community, it does not distinguish on the basis of gender or of colour. Indigenous women are as much entitled to protection in our community as anyone else. The law is required to do all it can to progress that protection. Adams J in speaking about the criminality of domestic violence identified two characteristics, one of which has no application in this case. As to the first, his Honour observed “An offender usually believes that in a real sense what he does is justified, even that he is the true victim”. Then further in that judgment, although speaking of both elements, what his Honour is said pertinent:

“These elements also usually mean that the victim never feels truly safe. Unlike a casual robbery where a victim is often simply in the wrong place at the wrong time, the victim of domestic violence is personally targeted [and is available to be personally targeted again]. To my mind these considerations emphasise not only the need for general and personal deterrence but also for a denunciation in cases of this kind, see R v Dunn [2004] NSWCCA 41.

24. Of course violence at this level perpetrated against a partner is breach of a trust and responsibility that a male instinctively and socially owes to the female partner in any relationship. These offences, the four of them, are all offences of domestic violence. Two are offences of serious domestic violence against persons to whom the offender was in a position of some trust, and two of the offences were offences of serious violence to property of his then partner with a view to further hurting her. All offences were committed in circumstances where two impressionable children, the boy and the girl, both aged fifteen, were present. His evidence to me was he had seen domestic violence all his life. Surely its unfavourable impact upon him should have been a good reason to make sure children such as the two in that home did not experience through their own childhood.

25. The trauma to others associated with his violence to persons and property was of a very high order. Photographs of the house show it was destroyed to the floorboards. It is impossible to recognise among the remnants any of the possessions, furnishing, clothing, toys or other possessions that go to make a home, or that go to make someone feel warm inside with memories. The appearance in the photographs show little else but ash and charcoal. The exterior and interior walls have been consumed by fire, with charred skeletons of blackened wall frames the horrible reminder of his criminal conduct.

26. He claims he was drunk when these offences occurred. Indeed he sought refuge in his claimed drunkenness, claiming an inability to remember stomping on his partner’s head. He did not recall hitting his partner with the iron. He did not remember lighting the fires. It is no answer to combating domestic violence, as one would hope he would want to do in his own case, to block out of one’s memory of the very violence that he is seeking to combat. Such a proposition suggests an absence of insight into his offending conduct.

27. I am satisfied that the violence perpetrated against his then partner was severe. It involved pushing her, hitting her, grabbing her by the hair, kicking her while she was on the floor, stomping in a downward motion with his foot several times upon her, grabbing her by the back of the head or hair and propelling her head forward into a glass table, using an electric iron as a weapon to hit her. This level of violence borders on the unbridled. His assaults upon his partner and the teenage girl were monumental abuses of his physical and emotional power over those he assaulted. The assaults were callous, gratuitous on the evidence before me, and cowardly. Neither child nor adult victim was any match for his physical strength.

28. I cannot be satisfied beyond reasonable doubt the assault upon his partner was premeditated, but equally I cannot be satisfied on balance of probabilities it was impulsive or spontaneous. He has returned some distance, no doubt to sort matters out with his partner. My difficulty is I cannot be sure of the point where violence was chosen, that is physical violence was chosen, as a means of dealing with his domestic tension. I am of course satisfied now that violence against property was certainly contemplated as he entered the house.

29. I am satisfied his decision to return from the truck stop was made when he was affected by alcohol. I am satisfied the assault upon Chloe was not planned but nonetheless was a deliberate act performed in the heat of the desire to, and for the purpose of, administering further violence to his then partner. I am not satisfied his intoxication was as extreme as he would have it. At the time of the incident he had not drunk for some time. He still had sufficient insight to use the landline pager to detect his partner. He still had physical co-ordination at a level where he could administer a fierce physical beating to his partner. He still had sufficient physical awareness to set a fire in the house and to lock the door after he had set it so that it could not be dealt with quickly by those close at hand. He was sufficiently possessed of his senses to recognise the enormity of his crime of the destruction of the house with his comment “What have I done”. I do not regard that insight as applying to the administration of the physical violence to either of his victims with the injuries occasioned. However, he did recognise the consequences for himself of those actions, understanding that she had rung the police and his conduct to that point was so serious as to warrant gaol. It follows that I reject his account of extreme inebriation. However, I am satisfied the residual alcohol within his system impaired his judgment and reduced his normal inhibitions. I sense it played some part in his offending behaviour.

30. The assault upon his then partner was sustained. There is no evidence how long it lasted but it occurred at three sites: the bedroom in which she was hiding; the lounge room; and the stairs from the house to the yard. It would appear his striking of her as she fled down the stairs caused the wound. However, in assessing the objective criminality I take into account the ongoing nature of the assault which culminated in that injury. His partner’s injuries were significant. Of course the offence pleaded is one of wounding, but her injuries extended beyond the wound. The fifteen year old, Chloe’s injuries constituted actual bodily harm only. The wounding of his then partner and the actual bodily harm to Chloe are elements of the offence and consequently do not constitute aggravating circumstances.

31. The fire to the dwelling destroyed completely the dwelling. As I said, the offender’s motivation was to cause further hurt and pain to his partner. Her possessions and those of her children were lost. $63,000 of house was destroyed. His partner and her children were homeless as a consequence. I am satisfied the decision to burn the premises occurred after the victim fled the premises. That is, that it was spontaneous and induced by aroused passion and the lingering effects of alcohol. Nonetheless, it is a serious crime. I cannot be satisfied beyond reasonable doubt he intended that the whole house should have been destroyed as it was. He certainly did though intend to cause damage by fire, but I regard him, at worse, reckless as to whether the whole house would be consumed by the fire. Nevertheless, part of criminality is assessed by consequence of his criminal activity, see R v Buttsworth [1983] 1 NSWLR 658.

32. These offences were committed within seven weeks of being given a twelve months suspended sentence for driving whilst disqualified. They were also committed in circumstances where he was also on bail to remain away from Narrabri. The offences to his partner and the burning of the house are offences of such seriousness that a full-time custodial sentence of some significance is called for.

Victim Impact Statement

33. A victim impact statement has been tendered. The material contained in the victim impact statement is not sworn evidence and has not been subjected to cross-examination. The victim impact statement, though, coming as it does from the primary victim may, if I accept it as reliable, provide unsworn evidence as to the facts of the offences and their effect upon her. The function of statements such as this one is to give to victims the opportunity of being heard in sentencing proceedings by publicly identifying the impact of the trauma visited upon them by the actions of an offender. Secondly, it enables the sentencing proceedings to assist the victim as he or she moves towards some closure of grief, resentment and brooding arising from the criminal conduct of an offender. Thirdly, the victim impact statement contributes to an offender at last hearing at first hand and perhaps gaining insight into the impact of his offending upon his victim. Finally, the victim impact statement ensures the court has a continuing consciousness of the impact violent crime has upon ordinary men and women who are its victims. As such, victim impact statements play a very important part in the administration of the criminal law.

TB writes this:

“As a result of the incident that has occurred, I received facial bruising such as two black eyes, busted and cut upper lip, a cut to my head where I received stitches, bad bruising, sprained right ankle. I was also concussed and disorientated.

Mental illness, nervous shock: As a result of the incident that has occurred, I have been diagnosed with post-traumatic stress disorder. I have suffered sleepless nights, severe weight loss. I suffer with severe migraine headaches which as a result I feel dizzy and nauseous. I am afraid to be alone and let my kids out of my sight. I am also unable to manage normal social interaction and my confidence level, from being of a high standard, has hit rock bottom. My emotional control is out of control where I cry all the time. My hair is falling out due to my depression state and my vision is blurry all of the time which is very distressing for me. I am afraid of fires, have nightmare all the time about the events that have happened.

This statement has been prepared by me with no assistance and is true to the best of my knowledge and belief.”

Subjective Matters; Family Background, Social Relationships

34. Jay Tyson is a twenty-eight year old male, twenty-seven at the time of the offence, who has been in an unstable relationship with the victim for, on my calculation, six years but I note the agreed facts say for three. At the time of the offence, he identified as an indigenous Australian. He is the father, as I said, of E.J. who will be two years old next week if my mathematics is correct.

35. Jay Tyson was raised in the remote areas of New South Wales. Probation and Parole report he had the benefit of extremely supportive parents and extended family who assisted him in regards to accommodation, employment and social support. His father either was or is a school principal. Jay Tyson’s relationship with the victim, is said to have commenced in 2003. Probation and Parole record it as having been characterised by violence with disregard for the partner’s rights, welfare and property.

Education Skills and Vocational History

36. Jay Tyson presents as a man of above average intelligence. He is articulate. He is able to handle himself well in the witness box. In so saying, I wish to make it clear I do not accept all the answers he gave but he answered confidently, calmly and presented articulately the account he chose to give. His evidence is silent as to his primary school and high school education. I am unable to say when he left school. He does, however, have skills as a musician. He can play a guitar, the drums and other instruments. He studied for eighteen months visual and audio performing arts full-time at the Dubbo TAFE. He passed the second level. Should he complete levels three and four, he is entitled to a diploma. His evidence is, with that diploma he could attend uni and obtain a degree and teach music. That is his desire. He has played in a band. He has recorded an album. Clearly, his strength is music. He has skills in the area and apparently the potential to become an excellent and perhaps an elite musician.

37. He has a love of children. He has worked with children for some three years at Weilmoringle Public School where his father was the principal. There he taught children how to access computers and how to use computers to access the Internet. It must follow from that that he has computer skills as well. One of his referees saw one of Jay Tyson’s strengths as devoting a great deal of his personal time to training children in sporting carnivals and striving to make the community a better place, especially for the youth. The chairperson of the Dubbo Aboriginal Medical Co-operation noted he had attended the Dubbo West Public School and escorted children several blocks from the school to their homes regularly. He claims to have patience with children. Tyson’s evidence is that he is good with children and would love to teach primary school children basic music. He has also been a football coach. The pre-sentence report notes “The offender has been employed in various semi-school positions. He claims to enjoy working and hates the prospects of being unemployed.”

General Health

38. So far as one can tell, Jay Tyson enjoys good physical health. There is no evidence before me suggesting any mental health issues.

Alcohol and/or Drug Issues

39. I am satisfied the offender has a serious problem with alcohol abuse. He claims he is not alcoholic. If that is so then he lacks self-discipline in dealing with alcohol. I am satisfied he is minimising his alcohol abuse, although in the absence of a formal diagnosis, I am unable to be satisfied he is alcoholic. I note in 2003, 2004, 2006 and 2007 various courts ordered alcohol and/or drug rehabilitation, suggesting his alcohol problems are not only longstanding but factors in his continual criminal offending. He claims his victim also drank to excess. Such a situation makes alcohol rehabilitation difficult, if not extremely difficult, because frequently drinkers, that is the one not doing the rehabilitation, seek to share their drinking so as to normalise their own excessive consumption of alcohol either within their household or within the larger community.

Character and Criminal History

40. I have observed Mr Tyson is a father who clearly is devoted to his daughter. His interest in children has been recognised by other members of his community. He is described by one of his referees as a community oriented person. He has an interest in sport, playing football for Goodooga and supporting children at tennis, netball and rugby league.

41. There are, however, negatives. He has a reputation with Probation and Parole for circumventing apprehended domestic violence orders. He has a number of convictions prior to these offences including behaving in an offensive manner, 1998; malicious damage to property, 1999, 2003, 2004; common assault, 2003, 2006; intimidate police, 2004; offensive language, 2004; drive when licence expired, 2005 on two occasions and 2006; fail to pay taxi fare, 2006; drive whilst disqualified, 2006.

42. Putting the driving offences to one side, the balance of that record would appear to be alcohol related. Probation and Parole also allege he was driving from Goodooga to Weilmoringle on a daily basis at a time he had no driver’s licence. I have assumed that information came to Probation and Parole as a consequence of their being told that by this offender.

43. All of his offending conduct that has been dealt with by the courts has seen him before the Local Court, that is the summary jurisdiction. The offences that I am dealing with are the first occasion that he has been dealt with on indictment before a superior court.

44. This offender presents as a man who, when sober, but for driving issues, is a valued member of his community, with real potential in music and superior skills in interaction with children. A significant percentage of Australia’s performing artists are indigenous men and women. Singers such as Archie Roach have had their troubles, yet made it in the entertainment world. Noel Pearson, an important Aboriginal commentator, speaks of the importance of young Aboriginal men putting the grog to one side and accepting responsibility for their lives. To this point in time Jay Tyson has lacked the character to do so. Attitude to the Offence

45. I have already mentioned the offenders response to the devastation he caused by firing the dwelling: “What have I done?” I am prepared to accept that as a recognition of the devastation caused by those activities and his immediate contrition for it. In his evidence in court he spoke of being ashamed of what he had done. He was sorry of the impact his offences had upon his then partner and her children.

46. The pre-sentence reports he has made several attempts to undertake anger management programs but these efforts are disrupted by gaol movement. The author of the pre-sentence report observed Mr Tyson became visibly upset when discussing his offences. He expressed his shame and disgust at his actions and remarked, “I didn’t think I was capable of anything like that.” The offender stated that he needed to change “everything about the way I have lived for the last five years and obey the law.” He further remarked that he deserved to be punished and that his time in custody had allowed him to reassess his life.

47. Meaningful contrition is very difficult to assess in domestic violence cases, as I have already said. Contrition can only be meaningful if it leads to a change in conduct. I accept Tyson’s feelings of shame and regret are genuine. However, given his unwillingness to acknowledge in evidence the particular acts of violence, and his absence of truth about his reason for returning to the dwelling, I have serious reservations about his determination to reassess his attitude to women with whom he is intimate or his interaction with them.

Plea of Guilty

48. The offender’s pleas of guilty were entered before the Moree District Court on 23 April this year. I acknowledge they were entered as an acceptance of responsibility for his criminal conduct. They were entered on arraignment and cannot be regarded as being early entered. Nonetheless, there is a utilitarian value attaching to the pleas. He has saved the complainant from giving evidence of traumatic and distressing events and other witnesses also, particularly including the two fifteen year old children have been saved from giving evidence. The pleas are accompanied by shame and regret. In all the circumstances I allow a fifteen per cent discount for them.

Rehabilitation Prospects

49. There are a number of positive rehabilitation indicators - strong family and community support, good skill base in music and interest in developing children and an interest in interacting with young children and assisting them to develop computer skills, a good work ethic, acknowledgement of his offences and the plea of guilty, a willingness to attend courses in anger management and alcohol rehabilitation, good physical and apparently good mental health. There are, however, a number of negative rehabilitation indicators including minimising alcohol problems, failure to acknowledge the specific acts of violence against his victim constituting his attack upon her, a long term of entrenched history of domestic violence, frequent offending conduct since 2003, failure to expose his real reason for returning to the dwelling on the night of the offences, the pursuit of the victim in circumstances where the court had imposed AVOs and bail conditions excluding him from Narrabri, a prison regime that is not conducive to effective rehabilitation, and past failures to accept the resources offered by Probation and Parole.

50. Jay Tyson’s chances of rehabilitation depend upon two factors, it seems to me: his successfully dealing with his alcohol consumption and his recognition that violence is not an appropriate method of resolving tensions within an intimate relationship. While the important theory and causes behind alcohol abuse and violence against women may be dealt with in a custodial environment, such as anger management courses, effective rehabilitation of these matters can only be achieved if they are to be achieved in a community based setting.

Setting the Sentence

51. Deterrence: In modern Australian society, there is a very extensive raft of criminal laws passed by federal and state parliaments. The chief purpose of those laws put in place by parliament is to deter those who are tempted to breach provisions of the laws. Parliament does that by prescribing maximum penalties for various offences for those who engage in criminal conduct prohibited by the criminal law. I will shortly come to the maximum penalties for these offences. Consequently when a person is sentenced for a breach of the criminal law, he is exposed to the possible maximum penalty provided by the statute breached. Sentencing for breaches of the criminal law requires a sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping firmly in focus the maximum penalties available and their deterrent purpose. There is also a specific deterrence aimed at individuals like minded to the offender who, but for such deterrence, would be willing to commit crimes similar to those for which this offender is being sentenced. Finally, there is a component of deterrence to be considered which is personal to the offender with a view to deterring him or her from re-offending.

52. The maximum penalties for the offences are these: what is called the aggravated enter the building with intent to maliciously damage property carries a maximum penalty of fourteen years imprisonment. The malicious wounding of his then partner, TB, carries a maximum penalty of seven years. The assault occasion actual bodily harm is five years. The malicious damage to the dwelling house is ten years.

Guideline Judgment

53. I have taken into account the guideline judgment in R v Thompson and Houlton (2000) 49 NSWLR 383 in giving the fifteen per cent discount.

Custodial History

54. Jay Tyson was arrested on the night of the offence, that is 3 September 2006. He has been in custody since that time. On 20 February 2007 he was sentenced for two unconnected offences to nine months non-parole; those sentences were to commence on 3 September 2006. There was a three month balance of term in respect of those sentences. The non-parole period he was serving expired on 2 June this year. The Crown seeks the present sentences should be cumulative upon that sentence. The Crown case is Tyson had only been in custody solely referable to this offence since 3 June.

55. The principle of totality between the offences I am dealing with and the offences for which the learned magistrate at Moree - I think it is most likely Moree, Magistrate Lerve - sentenced can be achieved by partial accumulation and partial concurrency. The partial accumulation will amount to six months.

56. As to each offence on the indictment, I intend to impose concurrent sentences for each. All offences really are part of the same criminal activity. Offences 1 and 5 are of a similar kind, injuring property, and offences 3 and 4 are of a same kind. Applying the discount I regard to the most serious offence as being offences numbers 3 and 5 - I will need to do them separately - but for the plea of guilty, I would have sentenced the offender to a sentence of three years for the first offence, which was the aggravated break and enter with intent. Applying a fifteen per cent discount reduces that sentence to an overall sentence of two years and eight months. The sentence I would have imposed for count number three, which is the malicious wounding, was a sentence of three and a half years. I have reduced that to three years. The sentence I would have given for assault occasioning actual bodily harm is twelve months fixed term, which I have reduced by fifteen per cent which becomes ten months fixed term. But for the plea of guilty for destroying the property, I would have set an overall sentence of four years. That is also reduced by fifteen per cent and becomes a sentence of three years and five months.

57. There are special circumstances found, particularly in respect of counts 1, 3 and 5. As I say, the other one is a fixed term. Each is six months cumulative to the sentence already being served.

58. The offender is experiencing his first time in custody. As earlier remarked, his practical alcohol and domestic violence rehabilitation are better achieved within a community based setting. A longer than “normal” parole period acts as a greater personal deterrence because of the effects of a breach of parole will have upon his freedom. The offender’s parole for the fifth count is not automatic. He must persuade the Parole Board he is a suitable candidate for parole. That should provide him with motivation to achieve earlier, rather than later, release, particularly if he understands a second application for parole is unlikely to be received until twelve months has passed since his rejected application. Earlier parole is only likely to be achieved if he persuades the Parole Board he is ready for release, that he has taken positive steps for his rehabilitation, such as completing rehabilitation courses.

Passing Sentence

59. Jay Tyson, for the offence that you on 3 September at Narrabri, knowing that there were persons inside, entered a dwelling house at 7 Lenore Street with intent to maliciously damage property, I sentence you to twenty months non-parole to commence on 3 June 2007 and to expire on 2 February 2009. Your balance of term is one of twelve months to expire on 2 February 2010.

60. In respect of the charge that you on 3 September at Narrabri in the State of New South Wales maliciously wounded TB, you are sentenced to a minimum term of two years to date from 3 June 2007 and to expire on 2 June 2009. Your balance of term of twelve months will expire on 2 June 2010.

61. On the charge that you on 3 September 2006 at Narrabri assaulted Chloe P, thereby occasioning to her actual bodily harm, I set a fixed term of ten months to date from 3 June 2007 and to expire on 2 April 2008.

62. In respect of the last offence, that you on 3 September at Narrabri in the State of New South Wales by means of fire did maliciously destroy the house and contents at ---- Street Narrabri, the property of the Aboriginal Housing Office and TB, you are sentenced to a non-parole period of two years to date from 3 June 2007 and to expire on 2 June 2009. The balance of term is one year and five months. That will be the parole period if you get all of it, and that will expire on 2 November 2010.

63. I remind you of what I said a moment ago, which is that that parole period is not automatic, you will have to persuade the Parole Board that you are a suitable candidate for parole on 2 June 2009. The earliest date that you are available to be released if you are successful is 2 June 2009.

09/05/2012 - Judgment reviewed 9 May 2012 to see if restriction order should still apply. - Paragraph(s)