R v Tyson

[2022] NSWDC 740

District Court

New South Wales

Medium Neutral Citation:	R v Tyson [2022] NSWDC 740
Hearing dates:	13 December 2021, 28 March 2022
Decision date:	28 March 2022
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment for 4 years, with a non-parole period of 2 years
Catchwords:	CRIME - SENTENCE - reckless wounding - affray
Legislation Cited:	Crimes Act 1900 (NSW) s 35(4), s 93C(1)
Category:	Sentence
Parties:	Regina (Crown) Stuart Ian Tyson (offender)
Representation:	Mr Barnes (DPP Nowra) Mr Naughton (Counsel for the offender)
File Number(s):	2020/00318257
Publication restriction:	Nil

1. Stuart Ian Phillip Tyson, you appear for sentence today in relation to two offences.

2. The first offence is reckless wounding. This offence involves a contravention of s 35(4) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for seven years and there is a standard non-parole period of three years imprisonment.

3. The second offence is affray. This involves a contravention of s 93C(1) of the Crimes Act. The maximum penalty for that offence is imprisonment for ten years. There is no standard non-parole period for that offence.

4. Both of these offences were committed by you on 7 November 2020.

5. The circumstances surrounding the offending is substantially contained in a document called “agreed facts on sentence” which, for my purposes this afternoon, I can summarise as follows.

6. On Saturday 7 November 2020 at a little after midday, the Jellybean Park (which is in the CBD of Nowra) was a very busy place. There were a lot of shoppers and other members of the public there. There were gazeboes established and a youth market was in full swing. Stall holders were selling their arts and crafts and there was even a musician playing a guitar. A lot of people were enjoying themselves with their friends and families. There were also young children amongst those enjoying themselves on this Saturday morning.

7. You also were in that area and you were behaving in a very odd, if not offensive, fashion. You were yelling abuse at people; and, at times, just yelling abuse generally to no one in particular. Some of your language which could be heard by young children was offensive and obscene.

8. Unsurprisingly, Mr Tyson, some of the adults were quite offended and disturbed at hearing you shouting, and, not only shouting, but using such language in the presence of children.

9. One of the adult men in that park, (Mr Wicky) confronted you about the language you were using and he was pretty blunt when he spoke to you.

10. After Mr Wicky confronted you about the language you were using, he went to use the toilet block near the park. There was another exchange between you and Mr Wicky and then he went into the toilet block.

11. And what did you do? You went to where you had earlier placed a bag and, from that bag, you took out a large knife. You then walked towards the toilet block where Mr Wicky had gone.

12. Another gentleman in the area (Mr Wakeling) saw what had happened (he appears to have been a friend of Mr Wicky). Mr Wakeling called out a warning to Mr Wicky that you were coming - and coming with a knife. Unfortunately, Mr Wicky did not hear Mr Wakeling’s warning.

13. In any event, when you entered the toilet block, Mr Wicky was in a cubicle; the door was not completely closed; and Mr Wicky saw you holding a knife above your head and approaching him in a threatening manner. You continued to approach the cubicle. You used offensive language towards Mr Wicky and he slammed the cubicle door to prevent you stabbing him. You told him that you would get him when he came out of the toilet block. You then left the toilet block. You went to a bench seat where you put the knife back in your bag.

14. But the matter did not stop there, Mr Tyson, because Mr Wicky did come out of the toilet block very shortly after that. You then re-armed yourself with that large knife and advanced upon him. You attempted to slash or stab him. Mr Wicky sought to defend himself; he kicked out and attempted to deflect your aggressive activities. He even picked up a beer bottle and threw it at you in an attempt to put you off what you were doing. But it did not work. You continued to advance upon Mr Wicky and you slashed him on his left arm and left hand. There was a lot of blood as a result of the wounds that you inflicted on him. You and Mr Wicky fell to the ground and were struggling. A number of persons (showing great bravery) intervened, putting themselves at risk to stop you from your attack. They were successful - fortunately for everybody concerned because the incident could have resulted in a much, much worse outcome.

15. After you were restrained, you left the area; and you were eventually arrested.

16. This whole incident was seen by many people, including families with young children. Those children were distressed at what they had seen.

17. Mr Wicky was taken to hospital. He was operated on the next day under general anaesthetic. According to the agreed facts, he sustained: a three centimetre laceration at the left elbow; a ten centimetre laceration on the forearm; and a laceration to the left index finger.

18. There is no information as to whether or not any of these injuries had long term effects on Mr Wicky and I shall not speculate about that matter adversely to your interests because the obligation was on the Crown to prove any long term injuries beyond reasonable doubt. However, it no doubt would have been a terrifying experience for Mr Wicky to have been attacked in this way. But again there is no evidence of him sustaining more serious psychological injury than would ordinarily be expected from an incident of this kind.

19. In terms of the objective seriousness of each of the offence for an offence of its kind: the reckless wounding offence is slightly below the mid-range; and the affray offence is a mid-range offence.

20. Each offence is additionally aggravated because: (a) at the time of the offences you were on bail; and (b) the offences were committed in the presence of children.

21. The affray offence is further additionally aggravated because of the actual use of a weapon.

22. The use by me of the word “additionally”, indicates that those considerations were not taken into account in assessing the objective seriousness of the offending.

23. It is highly relevant to note Mr Tyson that when you were taken to the police station at Nowra after your arrest (according to the agreed facts) “it quickly became apparent that the offender was a vulnerable person with respect to his mental health issues.” In other words, the arresting police were immediately aware of the fact that you were suffering from mental health issues at the time of the offending and that is a critically important factor in the sentencing process this afternoon.

24. You are now 52 years old. At the time of the offending you were 50 or thereabouts and you have had a long history of mental illness. You were diagnosed with the very severe mental illness of schizophrenia when you were about 19 and you have suffered from it ever since. One of your brothers also suffers from schizophrenia and therefore it is possible that it is a genetically caused disease. Whatever its cause, that disease has certainly not been helped by the fact that you have a long term problem with alcohol, as well as cannabis and with other illegal drugs.

25. Your schooling was unremarkable. You were a good student and you were a good athlete.

26. When you left school, you took up work as an apprentice upholsterer (which is good and useful work in our community), but your mental health issues soon interfered with your working career and your life generally. You have had many admissions to psychiatric hospitals.

27. But, for the most part, you have been able, with the help of others, to more or less deal with your mental health issues; and, for many years, you were able to deal with your alcohol issues. In fact, there was a period when you were 24 to 41 years old when you did not drink at all.

28. But a few years ago things started to unravel for you in your private life. A son died and then your mother died. You only found out about your mother’s death during the course of the sentence hearing. But you knew she was sick with cancer. The fact that she was so sick and the fact of the death of your son meant that you relapsed in to excessive consumption of alcohol. This was accompanied by you also taking Oxycontin and Valium and other drugs.

29. You became a very dangerous man indeed. A schizophrenic who was not taking his prescribed medication but medicating with alcohol and non-prescribed drugs resulted in a very frightening outcome for you and for the community as the events of 7 November clearly showed. It is no exaggeration to say that that incident could have resulted in someone’s death.

30. You have a long criminal history which is unsurprising; many people with schizophrenia unfortunately have that outcome.

31. You have had prior periods of imprisonment, but not many. One was in 1993. After that, there were a series of other offences: there were some suspended gaol sentences in 2003 and 2009; there was a period of full time imprisonment in 2013; and more suspended sentences in 2017.

32. In the days leading up to 7 November 2020, you engaged in quite a lot of criminal activity as a result of your illness and addictions becoming out of control. The Crown has put together quite a helpful document for me. It shows that: on 6 August 2020 you were charged with contravening an AVO; on 3 October 2020 you were charged with common assault and behaving in an offensive manner; on 11 October 2020 you were charged with having a custody of a knife in a public place; on 24 October 2020 you were charged with stalk and intimidate; on 2 November 2020 you were again charged with stalk and intimidate; and on 4 November 2020 (just three days before these incidents) you were charged with larceny.

33. Those facts just reinforce the point that I have been making that, at the time of this offending, you had really become a very difficult person. It had got to the point where, as a condition of your bail, you were ordered by the Local Court to leave the Wollongong and Nowra areas and to live in Coffs Harbour where I think there are some family. But you did not obey the orders of that Court. You attempted to get to Coffs Harbour. You said you had problems with your car at Cessnock. But then you came back down south, instead of continuing to travel north.

34. You have been living on your own for quite some time in premises at Nowra. You had the support of the NDIS scheme, and the social worker, particularly through Ms Amanda Smith who was your NDIS support coordinator. You did have some support in the community.

35. As a result of your offending on 7 November 2020 however, you have lost your house.

36. But it is not all bleak news, Mr Tyson. You have the support of your brother and you still have the support of Ms Smith.

37. You have shown in custody that you can live without drugs and alcohol. You have been taking your medication. And you are now a functioning human being. You have the support of the Chaplain and you have been able to give me today a very supportive letter from a senior officer in Corrective Services (who is the manager of the industries section at the South Coast Correctional Centre) who speaks very highly of your capacity to work.

38. When you are released from custody, you will be able to have some accommodation for a short term with your brother, or a friend, but it seems more likely than not that the NDIS will be able to arrange accommodation for you again. That will provide some security for you.

39. You have recently seen Dr Furst who has provided a medico-legal report. That report contains a detailed treatment program that Dr Furst expects would be helpful to you in going forward.

40. I have to say that, although there are these positive signs for you, I cannot ignore the fact that you have relapsed from time to time; and I cannot ignore the seriousness of your mental health issues. So on balance I regard your prospects for rehabilitation as being guarded. In coming to that conclusion, I have accepted your genuine expressions of remorse.

41. Because of your mental health issues, considerations of general and specific deterrence are of reduced significance. But the need to protect the community is an elevated consideration, as is the need to encourage your rehabilitation.

42. No sentence other than a period of full time imprisonment is appropriate for either of these two offences. That period of imprisonment will be backdated to the date of your arrest, 7 November 2020.

43. I am going to impose an aggregate sentence and, accordingly, it is necessary for me to state the indicative sentences underpinning the aggregate sentence. The indicative sentences will not be totally concurrent; there must be some effective partial accumulation.

44. You pleaded guilty at the earliest available opportunity and consequently there will be a 25% discount on the indicative sentences.

45. Insofar as the reckless wounding offence is concerned, except for your plea of guilty, the indicative sentence would have been imprisonment for three years; because of the plea, the indicative sentence is imprisonment for two years three months and the indicative non-parole period is one year two months. Insofar as the offence of affray is concerned, except for your plea of guilty, the indicative sentence would have been imprisonment for four years. After the discount, the indicative sentence is three years imprisonment.

46. In the result Mr Tyson for the two offences of reckless wounding and affray, I sentence you to an aggregate term of imprisonment of four years commencing 7 November 2020. Because of your mental health issues, I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. I therefore fix a head sentence of two years imprisonment to date from 7 November 2020 and which will expire on 6 November 2022. I fix a balance of two years from 7 November 2022 and which will expire on 6 November 2024.

47. I order that the report of Dr Richard Furst, exhibit 5, is to go with the warrant.

Decision last updated: 15 May 2023