R v Profilio

[2024] NSWDC 241

District Court

New South Wales

Medium Neutral Citation:

R v Profilio [2024] NSWDC 241

Hearing dates:

1 March 2024

Decision date:

15 March 2024

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

001 Sexual intercourse without consent

No discount.

Special circumstances are found to allow for a longer period of supervised parole in order to assist the offender with obtaining help in respect of his drug addiction.

Sentenced to a total term of imprisonment for 7 years comprising a NPP of 4 years and 9 months to commence on 25 November 2023 and expiring on 24 August 2028, when he will become eligible for release to parole, and a balance of term of 2 years and 3 months commencing on 25 August 2028 and expiring on 24 November 2030.

004 Affray

Sentenced to a term of imprisonment of 6 months, commencing on 25 November 2023 and expire on 24 May 2024, to be wholly concurrent with the sentence imposed above.

Catchwords:

CRIME – sentence after trial - sexual intercourse without consent – affray – objective seriousness of offences – breach of ICO an aggravating circumstance - subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

Rex
Profilio, Tyson

Representation:

Counsel:
ODPP: Ms F Vella
Defence: Mr D Stewart
Solicitors:
ODPP: Ms S Shrubb, Ms L Mendes
Defence: Mr A Miller

File Number(s):

2021/00105071

Publication restriction:

NPO in respect of the name of the complainant or anything that might tend to identify her

JUDGMENT

1. Tyson Profilio appears for sentence in respect of two offences, being sexual intercourse without consent, contrary to section 61R of the Crimes Act 1900. The maximum penalty provided is 14 years’ imprisonment, and there is a relevant standard non-parole period of seven years.

STEWART: Excuse me, your Honour. I apologise for interrupting. Should we not formally tender the further documentation in the case for Mr Profilio before judgment?

HIS HONOUR: Certainly, I have read that and taken it into account. I will place on record the further material provided on behalf of the offender by email and otherwise: being a letter from Justice Corrective Services dated 13 March 2024, confirming the offender has been held in protection at Parklea since 28th of February 2024; and indicating that the reason for that is that it followed threats from other inmates and fears for his personal safety, with the department being unable to provide any information as to whether that was at his request or as a matter of assessment by Corrective Services.

In addition, supplied have been some medical reports from November 2019 in relation to an earlier period of custody of the offender when he was assaulted in custody, which has no significant relevance to the current sentencing process. However, it has been provided as part of the material on his behalf.

STEWART: Your Honour, could I just note that there are documents in that bundle.

HIS HONOUR: I’m about to refer to them, Mr Stewart. The relevant material is really material provided in relation to an allegation of assault while in custody. He was admitted to the Emergency Department at Blacktown Hospital on 10 December 2023, and discharged on the same date as a result of having been assaulted while in custody by other inmates. As to the injuries received, it is noted that he had swelling and bruising of the lips. One tooth was completely avulsed, but he had not brought the tooth with him to the Emergency Department. He denied losing consciousness, and he denied neck pain, even on movement. There was some chest wall pain on the back of the left side of the chest; there was some dizziness and headache and generalised abdominal pain. There were no bone fractures.

In short, and indeed, other than what I’ve just mentioned, there was nothing of great significance, and accordingly, he was discharged the same day as he was admitted. However, it confirms a reference in the report previously provided to the Court that he had been assaulted while in custody. Also contained is a patient self-referral form, which was provided by him when being admitted, the presenting problem is referred in the documentation as being,

“Patient reports involved in an altercation with multiple cellmates last night and sustained multiple bruises and lacerations to left eyebrow. Patient reporting to Corrective Services NSW staff that he slipped in the shower, reporting today was attacked again at approximately 14:00 hours. Unable to get in contact with Corrective officers until approximately 20:30 hours, unsure if had a loss of consciousness, reports vision fine at time of report, however, was seeing quadruple vision last night. Reports high level of pain on right left side of ribs, feeling cracking and clicking when inhaling whilst crouched over, reports constant headache at 5/10, observed immobilised with a lot of pain, laceration and bruising to left eyebrow. Multiple lumps felt around arms, and then referred to his blood pressure, et cetera. That he was speaking in full sentences and was orientated in place and time.”

In addition, a report has been provided from the St George Hospital.

STEWART: Your Honour, I’m sorry, could I just, in relation to the content of that particular document, I haven’t had the opportunity to discuss that with my client. We’ve placed it before the Court, but I’d ask your Honour to admit it into evidence, but not at this point in time refer to the contents because of the sensitivity of the content.

HIS HONOUR: Yes, all right. There is a further report in relation to a referral and discharge summary in respect of the offender’s mother, which I have read and will take into account, but not refer to as requested by Mr Stewart, as the offender is as yet unaware of the details of that report. Is that sufficient, Mr Stewart?

STEWART: Yes, thank you, your Honour

So, I’ll now return to the sentence, or reasons on sentence, and I’ll simply repeat what I’ve said so far.

2. Tyson Profilio appears for sentence in respect of two offences, being sexual intercourse without consent contrary to section 61I of the Crimes Act 1900. The maximum penalty is 14 years’ imprisonment and there is a relevant standard non parole period of seven years. The second count is affray, contrary to section 93C(1) of the Crimes Act; the maximum penalty is five years, and there is no relevant standard non-parole period. He was committed for trial on 19 January 2023, and the trial commenced with a jury on 14 November 2023 and concluded with his being found guilty on 27 November 2023 of the counts I have so far referred to. There was one further count on the indictment of sexual intercourse without consent, which concerned an allegation of anal intercourse, which clearly the jury acquitted him in respect of, leaving the two counts that I have referred to.

3. The first count related to penile-vaginal intercourse, said to have occurred between 14 February and 16 February at Lilyfield, the complainant being DC. The count of affray occurred on 15 April 2021, when he threatened violence towards DC. The facts, which I accept beyond reasonable doubt on the basis of the evidence before the jury, are as follows.

4. The victim, DC, and the offender first met in the vicinity of the Royal Prince Alfred Hospital, when each was endeavouring to obtain heroin. They had known each other by the time of the offending for about eight years, and they lived in fairly close proximity to each other in Camperdown and in respective Housing Commission premises where the offending occurred. They frequently saw each other in the local area and would, as both were the users of prohibited drugs, discuss drugs and matters of that nature.

5. One evening the victim went to the offender’s apartment; they consumed G, or gamma-hydroxy butanol, marijuana and alcohol, and had an entirely consensual sexual encounter, in relation to which each voluntarily performed oral sex on the other. The victim said that he had wanted to have penile-vaginal intercourse, but that she had indicated that she did not do that with people she was not in a relationship with, and they did not do it. On that occasion she provided him with some new jeans which she had possession of.

6. They continued to see each other in the local area from time to time. After that, she saw him a few times, walking in the local area with his dog, and she went to his apartment on 14 February 2021, because she was looking for drugs on that evening. He provided her with some drugs, including G and methylamphetamine or ice, and a Xanax pill. Her evidence was that she had trouble injecting the ice at his home, and in fact, returned to her premises to inject it before returning to his premises. She was seated on a single chair or lounge chair, watching a movie with him, but when she later woke up, she found she was lying on a lounge, in the middle of it, with her pants and underpants around her ankles. Her underpants had been pulled down and taken off one leg but was still around the ankle on the other leg. She was still wearing her bra as well as her shoes, socks, and a jumper. There was then no one else in the room. Both bedroom doors were locked, but the front door was wide open. She called out for him but got no response. She collected her clothes, dressed, and left.

7. She called her mother the next morning and reported to her that she believed she had been raped. On returning home, she had gone to the bathroom and discovered that she appeared to have been scratched internally, and she had blood coming out of her anus. When she wiped herself, she found blood on the toilet paper, and she could smell spermicide (wrongly recorded in the transcript at page 42 as “sperm inside” rather than “spermicide”).

8. Approximately one month later, on 15 April 2021, not having reported the matter to the police, or complained to anyone other than her mother, she was speaking with another local resident, part of the group that associated with the offender and with the victim. In that conversation the local resident told her that she had had sex with the offender, and that she had been, “well, you were fucked senseless,” to which she responded, “What?” and he said, “Yeah, well, you were unconscious.” She said, “Are you for real?” because she could not believe that he knew about what had happened, being the sexual assault which she had only suspected as having happened to that point.

9. She became incensed by this information, and when she next saw the offender in the street, she proceeded to accost him about boasting about having had sex with her while she was unconscious. She said to him, “I find it disgusting you did what you did, but I find it putrid that you think it’s worth bragging about” [T43] and he said that he had not told anybody, and she said to him, “Well, how come GH knows, and he’s - or was GH there?” He said he did not tell anyone and commenced swearing and screaming out for GH. GH was not present but was upstairs in the Housing Commission premises while the offender was screaming from the street outside. DC had a scooter with her, which she got onto and went around the block before returning to where the offender was.

10. At this stage there was still a commotion in the street. Two real estate agents who were attending premises across the street were so alarmed by what they had seen and heard that they twice contacted the police, asking them to attend the location. During the course of the offender’s reaction, he was screaming out at GH, who was in the Housing Commission premises on a balcony above him. He had taken what is variously described as a baseball bat or an axe handle out of his motor vehicle, and was wielding that about and saying words to the effect of, “Who do I hit first? You or her?” and at one stage smashed it onto a table that was immediately outside the Housing Commission premises.

11. During the course of this, when confronted by her, the offender said to her, “You came to my house, you took my drugs, smoked my drugs. What else did you expect?” But she had responded, “Not to be fucked, especially when I’m unconscious,” and he said, “Oh, you wanted it,” or something to that effect. I accept the description Mr Stewart gave in his written submissions as to the affray offence as really being nothing much more than sound and fury, although it was clearly very intimidating, relating to the victim who was then present with him in the street for part of his outburst.

12. There was no actual striking of any person, and indeed, there is no suggestion by DC that he even motioned towards striking her. However, she said she thought that he was going to attack her, which is why she initially left on the scooter, removing herself from the situation before returning. As to the objective seriousness of the affray offence, in my view it falls at the lowest end of objective seriousness for such an offence. Although the complainant was put in fear, nothing was done by the offender to actually make her believe that she was about to be struck at any time. But it did create a considerable disturbance in the street, threatening not only her but others, and causing the real estate agents to become so concerned that they called the police.

13. The only damage caused was apparently when he struck the table, causing a fracture to the top of the table. In the absence of the preceding offence of sexual intercourse without consent, this affray charge would have, in my view, been dealt with in the Local Court, where the jurisdictional limit is two years, and I will take that into account when dealing with it. As to the offence of sexual intercourse without consent, the victim was an invited guest in the offender’s home. The offending occurred in the course of their apparently mutual transactions in relation to the provision of prohibited drugs to the complainant and use by both of them of prohibited drugs, as had occurred in the past. However, she had, on her evidence, clearly become unconscious and was not consenting to what occurred. She suffered gross embarrassment on waking up to find her state of undress, and to note that she had apparently, at least on the jury finding, suffered from penile-vaginal intercourse, unknowingly, or being unconscious at the time. Because she failed to report the matter or attend doctors, there was no medical evidence about any injury, although she claimed to have been bleeding from the anus. I note that Mr Profilio was acquitted in respect of the single charge that related to that alleged conduct of anal intercourse.

14. Not only did DC suffer the stress of knowing or believing that something adverse of a significant nature had happened to her while she was unconscious, she suffered the further embarrassment when she was later informed of the offender’s boasting of his having “fucked her senseless” to others in the local community who were known to both of them. In my view, it was a serious offence for the offender to have sexual intercourse with the complainant in his home while she was affected by drugs that he had supplied and was not capable of consenting in the circumstances because she was rendered unconscious or senseless by the drugs. There is no evidence as to how long the offending occurred over. While she complained of soreness in the vaginal area, the only evidence of injury related to blood from the anus, in respect of which, if it was a result of an action by the offender against her, he was, in fact, acquitted.

15. If I did not mention it before, there was also some evidence of alcohol having been consumed by them at the time. In those circumstances, the offence of sexual intercourse without consent must be regarded as a serious offence. An aggravating circumstance in relation to the offending was that at the time of the offence, the offender was subject to an Intensive Correction Order and supervision.

16. As to subjective matters before the Court, there is the offender’s criminal history: a New South Wales Department of Corrective Services Convictions, Sentences, and Appeals Report, and a Sentencing Assessment Report under the hand of Rosie Coglan, dated 29 February 2024.

17. There is relevant documentation in respect of the offences in relation to which he was the subject of the Intensive Correction Order, as previously referred to, being offences such as cultivating a prohibited plant, cannabis, and supply cannabis, and possessing a firearm, which I note was what is commonly referred to as a gel air pistol, rather than a weapon which would discharge a bullet, and the facts in relation to those matters. A State Parole Authority report. I note that no action was taken in relation to a breach of the ICO, however, the Intensive Correction Order Breach Report, under the hand of Dallas Isaac, a unit leader with Leichhardt Community Corrections Office, is before the Court as part of the Crown bundle.

18. Provided on behalf of the offender, apart from the material I referred to as being provided by email this morning, being the Justice Health documentation in relation to two assaults, and his being placed in protected custody; there is also a report from Dr Paul Pusey, being a psychiatrist, dated 22 February 2024, and a letter from his parents, Jerry and Denise Profilio, dated 20 February 2024. Subjective matters are taken from that material. The offender is apparently a recovering heroin addict. He was receiving take away methadone doses. He commenced using heroin when he was 21, and using cannabis at the age of 17, and ecstasy at the age of 18. He is referred to as a social drinker. He has a history of offending, mostly drug related. In 2004, he was convicted for possessing a prohibited drug, make false statement, goods in custody, and breaking into a building. He was fined and placed on a section 9 bond.

19. I note that those offences of make false statement, goods in custody and breaking into a building are frequently the result of a person being a user of a prohibited drug. In 2018, he was convicted of possess prohibited weapon, possess prohibited plant, cultivate prohibited plant. Again, he was fined and placed on a section 9 bond. In 2019, he was given an ICO for a period of 15 months for the offences of cultivate a small quantity, I think it was more than a small quantity but less than an indictable quantity and supply an indictable quantity of cannabis. The ICO was to expire on 26 February 2022, and was current at the time of the incident offending.

20. Mr Stewart, in his written submission, described it as being cultivating a small quantity of prohibited plants, although in my review of the paperwork he appears to have been cultivating more than a small quantity, but less than an indictable quantity. I will check that and revise the reasons, if appropriate. The ICO was current at the time of this offending, and it is evident from the evidence in the trial that he was in breach of the ICO, apart from committing these offences by being a user and/or supplier of prohibited drugs during the course of the ICO. On 10 October 2019, he was given a sentence of imprisonment for five months for the offence of possess unauthorised pistol, being a gel pistol, commencing on 10 October 2019, concluding on 9 March 2020. Also, while on bail for the incident offences, he was further convicted of negligent driving and drive with a drug in his blood.

21. On 6 July 2022, he was fined and disqualified. While in custody, he has had one infraction of prison regulations in relation to an assault occurring on 28 February 2020, and he was confined to his cell for three days. He has a very limited history of violent offending, although there is some history. He has no history of offending in relation to sexual matters. As I have previously referred to, his criminal history is, in my view, almost entirely drug-related, and the offending in this matter arose in the context of the abuse of illicit drugs by both the offender and the victim.

22. In the breach report of 21 July 2021, he is referred to as being considered as “satisfactory” in terms of his response to the ICO. However, that failed to take into account the fact that he was using but had not disclosed that to his supervising Community Corrections officers. Although Dr Pusey diagnoses him as suffering from a major depressive disorder, he was unable to find any causal relationship between the offender’s depressive disorder or mental health otherwise and the offending. Apart from having been bashed in custody, the offender also has apparently a hernia, which he has yet to receive treatment for and has been dealing with himself by simply pushing the herniated material back into his abdomen as necessary. Presumably, Justice Health will get around to providing medical treatment for that hernia.

2. Of serious concern in relation to the offender is that this was a defended trial in relation to which he denied any offending. Although the jury acquitted him in relation to the anal intercourse, they convicted him in relation to the penile-vaginal intercourse, and of concern is that he continues to deny this. He informed Dr Pusey,

“I didn’t threaten her. I didn’t sexually assault her. The system let me down. I’ve never taken advantage of a woman or anybody in my life. Not like that. This has cost me everything. Being here has cost me everything, including friendships. It’s a terrible thing to have over you.”

24. His description to Dr Pusey of the Crown case was:

“Their case is based on lies and liars. Their main witness claimed she didn’t know anything until two other people told her that I had told them I had slept with her. Their two other main witnesses have been found to have lied. I was let down greatly by my legal team at the time of my trial. I am very confident that I will beat these charges on appeal. I was offered the chance to plead guilty to a charge of unlawful touching, but I wouldn’t even accept that because I did nothing wrong.”

25. As to his relationship with his parents, he said, “It’s always been good. I was treated quite well my whole life. Dad was a little rough on me at one stage, but that’s just Italian men. My mum brought me up to be a gentleman.” He said, “I’ve been currently involved in an intimate relationship.” He has one child from a past relationship with whom he has very little contact. That child lives with its mother and will turn 17 this year. He had not seen the child for quite a long period of time, and the mother had remarried, and had three other children, and moved away. As to his drug addiction, he said, “I am a recovered heroin addict. I’ve been on methadone for more than ten years. I see my prescriber once per week to get six takeaways.” I note, in that respect, that it is evident from the evidence in the trial that as well as relying on methadone while in the community, he has also been relying on other drugs and inferentially appears, apart from supplying drugs to DC, to have been perhaps supplying to the other drug-using cohort at the Housing Commission, as part of his case was that he had been set up so that they would be able to obtain access to his premises to remove his property from those premises. I note that property was suggested as being such things as jewellery, originally having been possessed by another of the residents.

26. There is no direct evidence, but it seems inferentially that the offender may have been supplying drugs either to fund his own habit or by way of payment, or by way of receiving valuable property in exchange. There is no direct evidence of this, of course, and I am not sentencing him in relation to any drug dealing or for the fact that he supplied drugs to the complainant. That is only one of the respective circumstances. I am sentencing him only in respect of the two offences on the evidence relevant to them and not for any other conduct, although I have referred to it as being part of the surrounding circumstances. Apparently there have been no drug users in his family other than himself. Indeed, his mother is referred to as being a lifetime teetotaller, and his father for at least the last ten years.

27. While he is referred to by Dr Pusey as having been diagnosed with obsessive-compulsive disorder, depression, agoraphobia, and anxiety and schizophrenia in the past, there is no evidence before me that that is in fact correct. Although Dr Pusey found him to be suffering from a major depression, and I note that he has been on some form of disability pension for a significant period of time in relation to his mental health, presumably that may have something to do with his assertion of a past diagnosis.

28. Although he had informed Dr Pusey, he had had some brief counselling interventions and medication in the past. He informed the doctor that while in custody his attention span had worsened, and he was constantly worrying about his treatment and his meds for his mental health. Dr Pusey found on examination that there was no evidence of pathology consistent with a diagnosis of a psychotic disorder during assessment. He assessed him as being an average risk of general and/or violent criminal recidivism, and an average risk of sexual-based recidivism. The New South Wales Sentencing Assessment Report came together with a report by Vanni Martina, being a psychologist dealing with prisoners at the Junee Correctional Centre. He was assessed for the purpose of the Sentencing Assessment Report as being a medium risk of re-offending according to the Level of Service Inventory, and an average risk of committing a further sex offence according to the Static-99R Risk Assessment Tool.

29. Again, of concern is that when being interviewed by Rosie Coglan of Community Corrections, he denied sexually assaulting the victim, claiming that the sexual intercourse was consensual, and repeating his intention to appeal the jury verdict. He is said to have verbalised a sound understanding of the fear his behaviour may have caused his neighbours, and it is said that “his insight into sexual offending was categorically appropriate. However, Mr Profilio did not extend this to the victim due to his denial of the sexual offending.” He is said to have understood how his decision to use personal violence might affect his neighbours, and that it was unacceptable.

30. Also in addition to subjective matters, is the letter from his parents. They indicate that they have supported him throughout his life and encouraged him as best they could, paying for a private school education at St Joseph’s College, and stating that he has previously been diagnosed with a PTSD disorder in the past, and referring to him having been on a disability payment because of his mental health concerns. They refer to violence as being out of character for him, although, as I have noted, there is some previous reference in his criminal record. They note him as having been caring and supportive of others in the community, including animals. I note that part of the police facts is that the offender and the victim would frequently meet while he was, in fact, walking his dog in the local area.

31. Despite this offending and the fact that his past offending included the cultivation of cannabis plants in a warehouse or like premises, in fact owned by his father, his parents continued to provide support, and I have no doubt they will continue to provide what support they can in the future. He has an uncle present here today showing some family support, which of course would not be evident to you, Mr Stewart, as you are appearing via AVL link. I have taken all of those matters into account, including the medical report that Mr Stewart has asked me not to refer to the details of. In relation to the affray charge, I note, as I have said before, that in my view, except for the fact that it is relevant to the sexual offence, that it would have been dealt with in the local court and in my view would not have resulted in a particularly significant penalty.

32. However, the s 5 threshold has clearly been passed in relation to the offence of sexual intercourse without consent. I have taken into account that the maximum penalty is one of 14 years and there is a relevant standard non-parole period of seven years, particularly in circumstances where the offence has been defended. As previously referred to, I regard it as a serious offence, taking advantage of an unconscious woman in order to obtain sexual gratification.

33. In relation to the count of affray, the sentence will be one of six months, noting that the offender has been in custody since the jury verdict on 27 November 2023, and spent two days in custody when first arrested on 16 and 17 April. The sentence will commence on 25 November 2023, and expire on the 24 April 2024.

34. In relation to the offence of sexual intercourse without consent, the sentence will be a non-parole period of four years, nine months, commencing on 25 November 2023, and he will be first eligible for parole on 24 August 2028.

35. The balance of term is two years, three months, giving a total term of sentence of seven years. The seven-year sentence will expire on the 24th of November 2030.

36. I have found special circumstances justifying some reduction in the non-parole period from the statutory relationship to assist in lengthening the period of parole, to assist the offender in dealing with his drug addiction, which appears to be an underlying problem which has caused him considerable difficulties in the past, and as suggested by his counsel, Mr Stewart, a significant matter in relation to the prospect of his re-offending in the future in any way.

37. In my view, until such time as he can totally cease using prohibited drugs or prescribed methadone, he will continue to be at risk of returning to the general use of prohibited drugs in the community. For that reason, I have provided for a potential period on parole of two years, three months, rather than maintaining the statutory relationship of the non-parole period to the balance of term, because of the perceived need to have ongoing assistance, particularly in relation to the use of prohibited drugs and/or prescription drugs, noting that Methadone may assist offenders to stop using other drugs, although in this case it apparently had not; it is simply a replacement. Until such time as drug users stop using methadone, they are very much, in my view, at risk of returning to the use of other prohibited drugs.

Is there anything that I have omitted?

MENDES: No, your Honour, but could I clarify the expiration of the sentence date in relation to the affray?

HIS HONOUR: Yes, six months imprisonment, commencing on 25 November 2023. I believe that takes us to 24 May.

MENDES: Yes, thank you, your Honour.

HIS HONOUR: Mr Stewart, is there anything?

MENDES: Your Honour is correct in respect to the cultivation matter, the offence date is 10/10/2019, cultivate prohibited plant greater than small quantity, less than indictable.

HIS HONOUR: Yes, all right, thank you for that. As you can see, I borrowed liberally from some of your written material.

STEWART: Thank you, your Honour.

HIS HONOUR: That completes the sentence matter, and we can disconnect. Mr Profilio, did you get those dates? Do you need anything repeated?

ACCUSED: It’s all right, I’ll figure it out.

AUDIO VISUAL LINK CONCLUDED AT 11.14AM

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Decision last updated: 25 June 2024