STATE OF TASMANIA v TYSON JAMES HAYES GEASON J
COMMENTS ON PASSING SENTENCE 23 April 2020
Mr Hayes you have pleaded guilty to two counts of assault contrary to s 184 of the Criminal Code.
On 20 March 2019 you travelled with your mother and another person from Latrobe to Hobart for the purpose of collecting some property which belonged to you.
After you had completed that task, the three of you went to a tavern and consumed a couple of drinks. On the return journey you and your mother argued. Near Epping Forrest the argument became heated and you said that you would kill her. I infer the arguing continued thereafter and upon arrival at your residence, and before you got out of the car, you grabbed her by the throat from behind with both hands. You squeezed her throat and she struggled to breathe. The other passenger told you to desist, which you did. You got out of the vehicle. Your mother also got out of the vehicle. More was said. You struck her with a closed fist to the right side of her jaw causing her to fall to the ground. You then walked inside your residence. Your mother and the other person left the scene.
I am told by your counsel, Mr Wright, that the assaults occurred after your mother had referred to you as a fuck-head, had told you to you pull your head in, and told you that you were worthless.
The day after the assault the complainant awoke with severe pain in her jaw, and she had bruising. She presented to the Mersey Community Hospital for treatment.
A CT Scan revealed that she had a fractured jaw. She was told that she would need to attend the Launceston General Hospital for surgery. Surgery was undertaken on 22 March. Temporary arch-bars or wires were inserted to stabilise her jaw. These were removed on 30 April 2019. In all, she spent two days in hospital.
On 3 April 2019 your mother reported the matter to police.
On 24 May 2019 you were spoken to by police but made no comment. You were directed to appear in court at a later date.
I have received helpful submissions from Mr Wright on your behalf. I have also received a mental health report. Mr Wright’s submissions and the report detail a significant history of psychological and physical trauma suffered by you from an early age.
You were removed from your mother’s care aged 14 months after sustaining “submission burns” to your face, head and hands. These burns were treated at the Mersey Community Hospital, the Royal Hobart Hospital and the Royal Melbourne Children’s Hospital. You still bear the scars of those burns.
After that treatment you placed in a long-term care arrangement. Fifteen months after that you were placed in the care of your maternal grandmother. Your grandmother returned you to the care of your mother when you were 7. You maintained contact with your grandmother thereafter and it appears that this was necessary to enable you to stay with her on alternate weekends, and from time to time as necessary, in order to allow things to “cool down” between you and your mother. Your relationship with your mother has been characterised by conflict and poor attachment.
You were bullied at school, principally because of your appearance, the result of the burns I have already referred to. Your attendance at school was sporadic.
At age 15 you were removed from your mother’s care due to the volatile and abusive nature of the relationship. You were then placed in therapeutic residential care, though this placement appears to have been marked by conflict with carers.
You were interviewed by a clinical psychologist for the purposes of the report I have referred to. That report suggests that you have difficulty in establishing relationships, principally because of an inability to develop trust in people. It is also recorded that you have a problem with anger which the psychologist describes as “understandable” given your history of trauma and neglect. You are described as having been deprived of an environment that would allow you to develop a healthy sense of safety or trust, or a sense of self-worth. As a result you have developed an adaptive coping style whereby you attempt to suspend or suppress emotions.
The psychologist opines that sometimes these emotions become impossible to suppress because you cannot withdraw from the situation that gives rise to those stressors, or because of the cumulative effect of those psychological stressors. Whilst no formal diagnosis is made it is regarded as likely that you would qualify for one of the trauma or stress related disorders, and it is clear, according to the psychologist, that you suffer a clinically significant psychological disorder as a result of ongoing psychological trauma from an early age. I am told that you will require trauma-informed psychotherapy in a stable and safe therapeutic environment over a long term.
I have considered the principles articulated in Verdins against the contents of the psychologist’s report. I approach those considerations with care, but I cannot ignore the clinical observation that on occasions your emotions become uncontainable particularly if you feel unable to withdraw from a situation and observe that the circumstances in which the initial assault occurred were exactly that sort of situation. It seems likely that those pressures and emotions became uncontainable within the confines of the motor vehicle and in the circumstances leading to the first assault. The second assault occurred when you were both outside the vehicle and the fact is, you could have walked away. I accept though that the cumulative effect of the stressors will have affected you in the way that the report describes, that is, that it will have contributed to an inability to contain your emotions. I do not think the report sustains any other conclusion, and nor do I think it requires a different conclusion. I consider that the report establishes a direct link between your condition and your conduct. Therefore, in my view, the report properly engages the considerations referred to in Verdins, in particular with respect to your moral culpability and the need for specific deterrence.
The other important point that emerges from the report is that you require treatment in order to avoid a repetition of this sort of conduct. There is a concern expressed that violence will occur again if you fail to obtain such treatment. In those circumstances I intend to require that you engage in obtaining such treatment.
In fixing sentence I have regard to your history and note your prior convictions. Some care is needed in reviewing that record because a number of matters were not ultimately the subject of court proceedings, or were dealt with by way of an informal caution. Some recorded matters resulted in no conviction and some were dismissed. So I have reviewed the record that has been provided to me with care, taking account of those things. Nevertheless, your record reinforces the need for a penalty which deters future offending, though I am inclined to think, as I have said, that it is through treatment that future offending is more likely to be prevented rather than through the punitive aspects of the sentence itself.
It is important for you to recognise that if you obtain treatment for your psychological condition then the risk of future offending is diminished because you will be addressing the most significant causative factor in your offending behaviour.
I also have regard to the fact that you are still a relatively young man and your rehabilitation is an important consideration in sentencing you.
I acknowledge that you have sought assistance with respect to anger management and note that financial considerations prevented you from completing that process.
Turning to other sentencing considerations your offending is objectively serious and it could have resulted in much more serious consequences than those which resulted, which were in fact serious enough. Conduct involving squeezing of the throat or choking is always serious because of the risks associated with it. The sentence I impose must reflect that and the need to deter others from behaving that way. The sentence must also vindicate your victim, notwithstanding the abuse you say she directed at you.
I have regard to your plea of guilty which was given at an early stage, and I will discount the penalty I would otherwise have imposed by 20% in recognition of that early plea.
The sentence I impose is required under the Sentencing Act to take account of time spent in custody. I will backdate the sentence I impose today in order to reflect that.
Mr Hayes, you are convicted on both counts. You are sentenced to 18 months’ imprisonment. I backdate the sentence to 21 July 2019. That means that you have spent a little over 9 months on remand for these offences already and that counts as time served towards the sentence. I am required, as a matter of law, to consider whether I should suspend any part of that sentence. I have decided that the relevant sentencing objectives can be met even if I do suspend part of the sentence that I have just imposed. I have decided to suspend 8 months of the sentence on condition that you are of good behaviour and commit no offence punishable by imprisonment for a period of 3 years. The purpose of suspending part of the sentence is so that you can pursue appropriate treatment for your condition in accordance with the recommendations contained in the report that I have received. I will make a Community Correction order to operate for 12 months from your release from prison. The Community Correction order will contain the core conditions along with the following special conditions:
1 That during the operational period of the order you submit to the supervision of a probation officer as required by that officer;
2 That within 14 days from your release from custody, you engage with a General Practitioner for the purposes of preparing a mental health plan intended to assist with your rehabilitation;
3 That you submit to such other medical, psychological or psychiatric assessment or treatment as directed by your probation officer.
The effect of the sentence that I have imposed is that you are sentenced to 18 months’ imprisonment. I have suspended 8 months of that sentence which means that you are required to serve 10 months. You have served over 9 months already because I have backdated the sentence so that it commences on 21 July 2019. That means that your release is imminent. If you do not want to serve the remainder of the sentence, which I have suspended, you must commit no offence punishable by a gaol sentence for 3 years. You are also subject to a supervision order and you are directed to engage with a probation officer and take such steps as are necessary to develop a mental health plan and receive the treatment that the report describes as essential for your future rehabilitation.