R v Tilley

[2023] NSWDC 496

District Court

New South Wales

Medium Neutral Citation:

R v Tilley [2023] NSWDC 496

Hearing dates:

8 February 2023

Date of orders:

8 February 2023

Decision date:

08 February 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 9 months with a non-parole period of 1 year and 8 months

Catchwords:

CRIME — Domestic violence — ‘Domestic violence offence’ — Multiple offences

CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation — Intimidation — Larceny

CRIME — Violent offences — Common assault

CRIMINAL PROCEDURE — Back up and related offences — Procedures — Accumulation and concurrency — accumulation on existing sentences — Special circumstances

SENTENCING — Aggravating factors — Breach of conditional liberty — Breach of Apprehended Domestic Violence Order — Offence occurred in the home of victim — Presence of child — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty — Childhood deprivation — Childhood exposure to domestic violence — Impact of sexual assault while in juvenile detention — Youth and immaturity ­

SENTENCING — Penalties — Imprisonment — Accumulation on other sentences and balance of parole — Totality — Danger further gaol may exacerbate violent responses when stressed

SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offence — Multiple offences — Aggregate sentence — Objective seriousness

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Special circumstances — Childhood sexual assault — Youth

Legislation Cited:

Crimes Act1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

BP v R [2010] NSWCCA 159

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cahyadi v R [2007] NSWCCA 1

Cherry v R [2017] NSWCCA 150

Clarke-Jeffries v R [2019] NSWCCA 56

Howard v R [2019] NSWCCA 109

KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571

Pearce v The Queen (1998) 194 CLR 610

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 37

Postiglione v R [1996] 189 CLR 295; [1997] HCA 26

R v Dunn (2004) 144 A Crim R 180

R v Gordon (1994) 71 A Crim R 459

R v Millwood [2012] NSWCCA 2

R v Millwood [2012] NSWCCA 2

Suksa-Ngacharoen v R [2018] NSWCCA 142

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Sentence

Parties:

Kyle John James Tilley (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Solicitors:
N Ashby for Legal Aid (NSW) (the offender)
A Kerr for Public Prosecutions (NSW) (the Crown)

File Number(s):

2022/159989

JUDGMENT – Ex tempore revised

Introduction

1. When Kyle Tilley came before the Court today, he confirmed through his solicitor, Mr Ashby, guilty pleas entered in the Local Court to a number of serious offences:

1. Aggravated Enter Dwelling with Attempt to Commit Serious Indictable Offence being Intimidation: s 111(2) Crimes Act 1900 (NSW), maximum penalty 14 years imprisonment;

2. Larceny: s 117 Crimes Act1900 (NSW), maximum penalty 5 years imprisonment;

3. Common Assault: s 61 Crimes Act1900 (NSW), maximum penalty 2 years imprisonment; and

4. On a s 166 certificate, Contravene an Apprehended Domestic Violence Order, maximum penalty 2 years.

2. As Mr Ashby submits, it is appropriate that I impose an aggregate sentence and I will do so.

3. When I sentence him for the most serious offence, I will take into account on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1, the offence of Intimidation, which was the very thing that he intended to do when he entered the dwelling.

4. Because of his early pleas I will, when I indicate the individual sentences, reduce them by 25% to reflect the pleas’ utilitarian value. I will also take care that the process of accumulation does not erode that benefit.

5. I will shortly speak about the seriousness of each of the offences individually and cumulatively. Each sentence is aggravated by the fact that Tilley has previously offended against the victim. She was his partner and the mother of his children. He committed these offences while on parole for that offending. There was also an Apprehended Domestic Violence Order in place which his following actions breached. The purpose of him being given extended parole was to give him the opportunity of proving himself in the community and taking up assistance. He singularly failed. He is not to be double punished, but his breach of parole it is a matter of aggravation.

Agreed Facts

6. There are Agreed Facts before the Court. The complainant, who is 22 years old, and the offender had been in a relationship for many years. They have two children aged 1 and 3.

7. On 22 May 2022 the complainant was at home. She woke to banging and demands from Tilley that she open the door. She opened the door and without invitation, the offender came straight into her room.

8. He told her, “Give me your fucking phone”. When she refused, he grabbed it from her and demanded its passcode. Again, she refused. He then hit her twice to the face with the phone causing her pain. Their children were asleep in the room. The three-year-old woke and started screaming and placing her hands over her ears. The offender then walked out of the room with the phone. A couple of minutes later he came back in and took the CCTV hard drive from the wall.

9. The complainant was understandably frightened and went to stay with a friend. Given the history of their relationship she was afraid that if she contacted the police she might be harmed again. That is entirely understandable given that the Apprehended Domestic Violence Order and the previous sentence had not deterred this offender from offending against her.

10. She did however complain to police and a warrant was issued. To his credit, the offender handed himself in to Wollongong Police on 2 June 2022. He was arrested for these offences. He granted bail on 6 June 2022, but, this offending, his breach of parole, were indicative that at the relevant time he was not thinking of himself, his children, his partner, or the community. On the 13 June 2022 he was arrested for unrelated matters. He has been in custody ever since he was sentenced to 18 months imprisonment. He is eligible for parole on those maters on 15 March 2023.

Objective seriousness

11. To go into a former partner’s home intending to intimidate her, to assault her to a breach of an Apprehended Violence Order and then to take her property, here the phone, are crimes that must be treated as really serious.

12. Tilley did intimidate his ex-partner, the matter on the Form 1. He also struck her with a makeshift weapon, and as intended, he caused her fear and distress. One of his children was also distressed. While the actual physical harm may have been minor, and the incident over relatively quickly, I do not underestimate the overall emotional or psychological harm it caused the victim. This harm can be assumed. A very real and proper recognition to those facts must be given to it in the sentences I will indicate and in formulating the aggregate sentence I intend to impose.

13. These acts involved an exercise by Tilley of coercive power and control over another human who he once had, I presume, a loving relationship with. It occurred in her home where she was entitled to feel safe. The demand to inspect his ex’s phone was motivated by jealousy. It was in no way justified. He was not a victim here. As a consequence of his behaviour towards her, and his history of offending towards her, she may never feel safe, except when he is locked up: R v Dunn (2004) 144 A Crim R 180. Each of those matters were critical to my assessment of the objective seriousness of each offence and my conclusion that the offending was so serious that sentences of some length must be imposed.

14. Mr Ashby, for the offender, submits this offence falls within the lower range of objective seriousness, albeit not at the bottom of the range. While it is not necessary for me to fix this offence within some notional range, and I accept that both individually and collectively there are much more serious examples of s 111(1) offences. But, as I said earlier, each crime was so serious that an aggregate sentence of some length must be imposed.

15. The larceny of the phone was itself serious. Most of us need a mobile phone to engage in ordinary day to day activities. But if it had been dealt with separately it would not have led to a significant additional penalty. The taking of her phone was however symbolic of his exercise of control over her.

16. The common assault was a relatively serious example of its type because an improvised weapon was used, but the physical injuries were thankfully transient. The other impacts will be taken into account when I sentence for the principal offence. I will not double count them.

17. The offences occurred in breach of an Apprehended Domestic Violence Order. This breach shows a complete disregard for the orders of the court. It is clear, because he has appeared before courts on many occasions, that Tilley has yet to learn that the authority of courts must be respected. If such court orders are not obeyed then the automatic reaction of the courts will be to think, “Well, we will just impose harsher and harsher penalties until it gets through someone’s thick skull that court orders must be obeyed, and court directions must be obeyed.”

18. If people breach Apprehended Violence Orders the law and the courts are diminished, because such orders are intended to do what they can to protect vulnerable individuals. While I do not double-count because I have taken into account the breach as a circumstance of aggravation, it is accepted that there should be some additional punishment when I come to accumulate for the breach offence: Suksa-Ngacharoen v R [2018] NSWCCA 142 at [132]; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 37; Cherry v R [2017] NSWCCA 150.

Form 1

19. The Form 1 matter will be taken it into account, when I come to sentence, for the principal offence. It goes to the need for personal deterrence and retribution for that matter: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 [39] to [42]. Here however, the consequences that were intended by the principal offences were achieved. I need not unnecessarily parse my assessment of objective seriousness for the principal offence by separating the facts of the Form 1 matter out from it. As I must take both into account, it would be double counting, if I increased the sentence substantially as a consequence of the Form 1 matter.

Maximum penalties

20. The maximum penalties that I have noted will be taken into account. Careful attention to maximums is always required, they provide sentencing measures to be balanced with other relevant factors.

Criminal record

21. Tilley’s criminal record does not entitle him to any leniency. He has been coming before courts since he was young. He spent time in juvenile detention. Since he first went into gaol in 2020, every time he has been released, his time in the community has diminished; 12 months, then 7 months, 3 months, then 5 days. As I have already indicated he was on parole, and he did not engage with his parole officer. His persistence in offending against the complainant is relevant to determining the proper sentence. It indicates this offence is not an uncharacteristic aberration. While young, his continuing disobedience to the law requires a more severe penalty, additional focus on retribution, deterrence, and the protection of the community: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at [477].

Structure

22. Tilley was re-arrested on 13 June 2022. He is in custody for other matters, his non-parole period and his breach of parole. There must be some independent punishment for those offences. But when I come to formulate an appropriate sentence date, and when I come to structure the sentence, I have some flexibility. I must ensure the total period to be spent in custody for these matters adequately and fairly represents what he did, but I also have to take into account the total sentence and minimum period to be spent in custody, fairly represents the criminality of all his offending: R v Gordon (1994) 71 A Crim R 459 at [466]; cited with approval in Postiglione v R [1996] 189 CLR 295; [1997] HCA 26.

23. This principal of proportionality or totality also goes to the accumulation point so far as the individual sentences are concerned. I will indicate appropriate sentences, and while each involved a discrete crime, they had common features and form part of a single episode of criminality with many common factors. The purposes of sentencing apply to each, and those purposes overlap. While there must be some accumulation to reflect the criminality of all that was done, there must be considerable concurrence: Cahyadi v R [2007] NSWCCA 1.

24. The matters to which I will refer shortly, the need for him to be monitored and assisted on release and the fact that this sentence is accumulated on others, justify a finding of special circumstances.

Victim impact

25. There is no victim impact statement. The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim: s 30E (5) Crimes (Sentencing Procedure) Act. Harm can, as I have indicated, be presumed.

Subjective case

Youth

26. Tilley was born in 1999. He is still young, and from all the material before me, still immature. He has a lot of growing up to do and it seems he is doing a lot of it in custody. In Howard v R [2019] NSWCCA 109 Fullerton J at par [13] said that:

1. “The law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young [man] to contribute to their breach of the law. It is also well recognised that emotional immaturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until [their] mid-20’s.” See also: Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159; KT v R [2008] NSWCCA 51.

27. These matters are all revealed by Tilley’s history.

28. Certificates from the gaol indicate that he has availed himself of, and completed, a number of Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) courses and the Real Understanding Self Help (RUSH) course.

29. I am reliant for his background and personal history on a detailed and comprehensive report from Dr Sidhu. There is nothing controversial in that report. Although not supported by evidence on oath, it is reflected in Tilley’s criminal record and the other material before me.

30. Dr Sidhu notes that Tilley took up the use and abuse of illicit drugs while very young. He notes an early diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). His schooling was interrupted by his poor behaviour. He still has problems reading and writing.

31. He spent time in juvenile detention. It was there he completed Year 10. He reports being sexually assaulted while in detention, a traumatic incident that must be taken into account.

32. Much of his behaviour appears to stem from a difficult home environment and his parents’ chaotic relationship. From birth he was exposed to drug use and violence. His mother struggled financially. Her situation improved when she took up with his stepfather. Tilley self-reports, and I am prepared to accept given all the material before me, that he put his stepfather through “hell”. This is verified by his record. It is clear that his life became chaotic from the age of 12.

33. Dr Sidhu concludes that Tilley’s formative years were punctuated by dysfunction, chaotic relationships, antisocial norms. He has struggled to manage the overwhelming emotions he experienced as a young person, and to which he was vulnerable. He has little ability to cope, and his behavioural patterns have become entrenched as he aged.

34. He has been able to hold a job for only a short period. It appears however, that in custody he is presently working with some purpose.

35. Dr Sidhu in his comprehensive report notes that Tilley appears to have a good understanding of his rehabilitation and treatment needs and what he has to do to reduce his chance of reoffending. But Dr Sidhu also notes that given his background and negative influences as a child, he has been formed by a view that, as violence is everywhere, he believes it is a viable means to resolve conflict. Violence has become normalised. His internal “scripts”, Dr Sidhu says, were formed around his need to protect himself in order to remain safe, a belief that was validated by the sexual assault on him.

36. Tilley has been unable to process what occurred to him. To the contrary, he has used drugs to avoid trauma and distress. The impact of drug use impacted on his capacity to think clearly, make sound judgments or plans. That is evident from this offence, the record and the other matters that have brought him before the courts.

37. Dr Sidhu recommends that Tilley would benefit from referral to a program such as Wayback prior to his release. There may be other programs that he can complete. I am aware of the Violent Offenders Treatment Program and that might be of assistance to him. According to Dr Sidhu, he will need a stepped approach to his reintegration back into the community. He will need help in managing addictions, which also include a gambling addiction. He will need to work with a psychologist who has experience in working with trauma victims. So entrenched are some of his problems that the longer he is given to deal with those problems the better. He needs support, including provision of literacy skills.

38. I note that all of those matters have been impeded by the COVID-19 pandemic. He has spent his time in custody on remand during the pandemic and subject to the restrictions placed on all prisoners.

39. Although he has limited experience of living a normal community life in the community, he is still relatively young. Dr Sidhu notes his personality is still being formed and is malleable. That means that there is an opportunity to change for the better, provided there are effective interventions. But his motivation will be imperative to his success.

40. What that means in simple English, Mr Tilley, is this. That you will be spending more time in custody. Most of your life you have reacted to being in custody and that has formed who you are. The longer you spend in gaol the greater the risk that the negative things you learn in gaol, and what you have to do to cope in gaol, will make you into a man who continues to offend. If you continue this, because you offend against others in the community, and women in your life, you will keep on going back to gaol.

“OFFENDER: Yes.”

41. Or you can take every advantage of the courses that you have done and what you have learnt, the future courses that you may do. You have to say, “this time for sure, I will learn and not offend on release”.

42. I am not particularly optimistic because I gave you a break last time, and you ignored what is said and the leniency I gave you. I am not punishing you for that, but you were on parole, and I am increasing your punishment because you breached that parole, and you breached the Apprehended Violence Order.

“OFFENDER: Yes, your Honour.”

Remorse

43. In terms of remorse, you told Dr Sidhu you took full responsibility for your behaviour. You have recognised it was unjustified and would have been frightening to your former partner and your children. I take into account that acceptance of responsibility. I do not think you have the capacity yet to really understand how important that is. But if you think back to your early life; you yourself witnessed violence against your mother and you have done exactly the same to your children. It had an impact on you, and I am sure it will have an impact on your children, something you should reflect on.

Drug and alcohol use

44. I am not sure whether the offender was intoxicated at the time, I suspect he probably was, but that is not a mitigating factor. His history of an early uptake of drug use and abuse of drugs and alcohol is a matter that has to be taken into account.

45. As he told Dr Sidhu, if you are using drugs, using alcohol, you do not sleep well. If you are not sleeping well and using drugs you become paranoid, if you become paranoid you are not thinking rationally, and you do not have the capacity to think rationally. It is thus imperative that he take every program he can and make every effort to avoid relapse.

Instinctive synthesis

46. Synthesising all those matters, Tilley’s life has been formed by his early years, his time in gaol and his time in juvenile detention. Someone who had the start in life that Tilley had does not bear equal moral responsibility as someone who had what might be termed a ‘normal’ or ‘advantaged’ upbringing. I accept on balance there was a sexual assault in juvenile custody. Such an assault can have profound and highly detrimental impacts on any child and is relevant by way of mitigation. It should be given proper effect when I synthesise on sentence.

47. It is clear that all the matters in his background have left a mark and compromised his capacity to mature and learn from experience. That does not mean he does not bear responsibility for what he did, but his background will be taken into account: R v Millwood [2012] NSWCCA 2 at [69]. His moral culpability is likely to be less than someone whose formative years have not been marred in the way set out in the material before me: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. I will give him the full benefit of those mitigating factors.

48. I have to return to what Tilley did to his former partner in the presence of his children and in breach of an Apprehended Domestic Violence Order. He sought to impose his will on his former partner. He showed no concern for her or the orders of the court. He showed no concern for his children. His actions impacted on others. While I accept that there are many mitigating factors, and I often sentence for much more serious examples of each of these offences, I have to impose a sentence which recognises the human dignity of the victim of a domestic violence offence and the legitimate interest of the community in denunciation and punishment of offences such as these.

49. The problem we have here is that we traditionally do that by removing men from the community and putting them in gaol, but gaol and detention has not to date deterred Tilley from violent behaviour. I have to consider the risk that gaol, by encouraging links with other criminals, and because they are an intrinsically violent environment, may reinforce the negative and tragic impact that violence has had on him when he was a child and a teenager.

50. Tilley’s crimes demand a minimum period of custody. It is also imperative that he use his time in custody, and on his release to parole that he uses this time to take up the assistance he surely needs. He is still young. He still has chance to lead a normal life in the community; and that would be in the community’s interest. These crimes do not yet mean he has to be removed from the community for an extended period. He should be given time and the opportunity to change. But if he repeats his offending behaviour, others will suffer. It will be demonstrated that negative attitudes and behaviours have become entrenched. While I will seek to avoid that, if they do become entrenched, he can only expect longer and longer sentences in the future.

Orders

51. The sentence commences 6 months after you went into custody. The effective sentence will total 3 years and 3 months. This has influenced my finding of special circumstances.

52. This sentence will start on 2 December 2022. I indicate the following sentences which reflect the pleas of guilty, and reductions of 25%:

1. For the s 111(2) matter, 2 years and 3 months imprisonment. This takes into account the matter on the Form 1;

2. For the Larceny, 4 months;

3. For the Assault, 9 months imprisonment; and

4. For the Contravention of the Apprehended Domestic Violence Order, 4 months imprisonment.

53. There will be an aggregate sentence of 2 years and 9 months imprisonment. The non-parole period is 1 year and 8 months commencing on 2 December 2022, meaning Tilley will be eligible for release to parole on 1 August 2024. The balance of the term of 1 year and 1 month will commence on 2 August 2024. The sentence will expire on 1 September 2025.

54. You will become eligible for parole on 1 August 2024.

55. Given the sentence I have imposed, I will extend the Final Apprehended Domestic Violence Order for 2 years.

56. There will be an Apprehended Domestic Violence Order in place when you get out. Now, that order applies to the complainant and also the children. Access to your children will have to be done through a third party, right?

57. The Orders’ conditions are that:

1. You must not go within 200 metres of any place where the complainant or your children are, any place where they work, or the address in Berkeley, that you know; and

2. You can make contact through a lawyer, a court approved counsellor, for mediation or conciliation.

58. There may be orders of another court, so far as your children are concerned. If you take access to your children into your own hands you will be breaching that Order, you will be breaching your parole.

“OFFENDER: Yeah.”

59. But there are mechanisms that can be put in place to allow for contact through a lawyer, through court counselling, through mediation, through conciliation or via court order. You can apply to vary that order when you get out.

“OFFENDER: Yes, your Honour.”

60. It may be that the order can be varied so far as family members are concerned and access, but that is something you go to the authorities to do. There are Legal Aid lawyers to give advice in the gaols, at least go to them first. But if you take the law into your own hands you will end up back in custody.

“OFFENDER: That’s right.”

**********

Decision last updated: 16 November 2023