Director of Public Prosecutions v Palise
[2021] VCC 2071
•16 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00300
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARLEY PALISE |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 September 2021 |
DATE OF SENTENCE: | 16 December 2021 |
CASE MAY BE CITED AS: | DPP v Palise |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2071 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Rape (two charges) – Plea of not guilty – Charge two on the basis of complicity – Complainant highly intoxicated – Mental element put to jury on three bases – Co-accused plea of guilty
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Jurj v The Queen [2016] VSCA 57
Sentence:Total effective sentence of 10 years imprisonment with a non-parole period of 6 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Dickie | Office of Public Prosecutions |
For the Accused | Mr John Kelly SC | James Dowsley & Associates |
HIS HONOUR:
1Harley Palise, on 20 August this year you were found guilty by a jury of two charges of rape, following a 16-day trial.
2The crime of rape carries a maximum penalty of 25 years' imprisonment.
3Charge 1 on the indictment concerns your rape of Mia Hulls[1] by introducing your penis into her vagina without her consent.
[1]A pseudonym.
4Charge 2 concerns your complicity with Jared Thomas in the crime of rape he committed against Mia Hulls by introducing his penis into her vagina without her consent.
5The crime of rape is a standard sentence offence. The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. The standard sentence for rape is 10 years' imprisonment.
6You have admitted relevant prior convictions. Your most recent previous conviction was for the crimes of kidnapping and using a carriage service in a menacing and threatening manner, an offence you perpetrated against your former partner. You were sentenced to six months' imprisonment and a two-year community corrections order in relation to that matter. You were released from gaol on the CCO component of that sentence less than four months before committing the offences you now fall to be sentenced for.
Circumstances of Offending
7On the evening of Saturday 16 June 2018 you were out socialising with a number of males some of whom were friends, some perhaps better described as associates. You attended a nightclub at Crown Casino. You were out for around six hours before heading home. You were travelling in your car which was being driven by your co offender Jared Thomas. Four other males from your party were travelling in another vehicle which I will refer to as the Nissan. Your party left the Casino precinct in convoy at around 4:26 am.
8Just after 4:30 am you and Mr Thomas stopped near the corner of Grattan and Lygon Street. Your friends travelling in the Nissan had stopped before you as they noticed your victim in a vulnerable and dishevelled state, slumped on the footpath near the corner of Grattan and Lygon Street.
9At least one other passer-by had stopped to enquire as to her welfare. She appeared to be unconscious, or at best semi-conscious. Her head was on her out-stretched forearm. One witness, Arthur Ford[2] had remarked in his police statement that when he first saw Ms Hulls he thought she looked dead. That evidence was not led at your trial, but having heard all of the evidence that was led, it’s a remark which reflects the state Ms Hulls was in, and her appearance, when members of your party first happened upon her.
[2]A pseudonym.
10Ms Hulls had been socialising with a group of friends since around 7 pm. Her closest friend, who I'll refer to as Donna McCarthy[3], was a constant companion throughout the evening, up until the unexpected and unlikely separation at the corner of Grattan Street and Lygon Street many hours later.
[3]A pseudonym.
11The two friends, along with others, spent several hours at a hotel in Kensington. The evidence revealed that Ms Hulls, Ms McCarthy and others of their group consumed liberal quantities of alcohol and some of the group, including Ms Hulls and Ms McCarthy, also consumed what they believed to be cocaine.
12The group progressed to Retro nightclub in Lonsdale Street at around
10:30 pm. Further consumption of drugs and alcohol took place there. CCTV footage from the nightclub reveals Ms Hulls’ deteriorating state. Ms McCarthy and Ms Hulls left the nightclub together at 4 am. CCTV footage reveals Ms Hulls swaying and having difficulty remaining stable whilst waiting for a taxi.13For reasons that are not entirely clear, but which probably had something to do with the confused and impaired state Ms Hulls and Ms McCarthy were in at the time, they got out of the taxi in Lygon Street, Carlton, which was largely deserted at that time of morning.
14It was well after 4 am. The street was near empty. It was cold and wet. CCTV footage reveals that the pair sat in a doorway for a few minutes before staggering down Lygon street together, doing their best to physically support each other. CCTV footage from the corner of Grattan and Lygon Street shows Ms McCarthy cross at the intersection alone, while Ms Hulls slumped on the footpath. The evidence revealed that Ms McCarthy also crashed on the opposite side of the street. Ms McCarthy remained in situ at that location for over an hour.
15I am satisfied on the evidence that Ms McCarthy and Ms Hulls were heavily, and similarly, affected by drugs or alcohol or both, to the point where they were disoriented and confused. Their awareness, decision making and sense of purpose, were impaired, thus explaining the separation, and shared experience of memory loss and incapacity.
16Some minutes after the separation one of your party who was travelling in the Nissan spotted Ms Hulls. They stopped the car. Mr Thomas, driving your Ute, stopped also. Three of your party got out of the Nissan and ran over to check on Ms Hulls’ welfare. As I have said, she was laying with her head on her arm. She was asked if she needed a lift home. She was asked where she lived and mumbled ‘Mernda’. The vehicle you were in was alongside the area where Ms Hulls was lying by this point. You were heading in the direction of Mernda. Mr Thomas agreed to give Ms Hulls a lift. She was helped to her feet and helped into the back seat of your car. She was unsteady on her feet.
17Her appearance, speech, physical orientation and motor skills left no doubt amongst the witnesses that Ms Hulls was affected by drugs or alcohol or both to a very significant degree. I am satisfied that you well understood that Ms Hulls was heavily affected by drugs or alcohol or both upon her entry into your vehicle.
18Some 12 minutes into the ride toward Mernda, at approximately 4:53 am
Mr Thomas took a detour into the back streets of Coburg. The vehicle stopped in Harding Street and remained there for approximately 15 minutes before re-connecting with the route to Mernda. During that period, you raped Ms Hulls by introducing your penis into her vagina. You were not wearing a condom. You ejaculated during penetration.19Mr Thomas also penetrated Ms Hulls’ vagina with his penis during this period. He was not wearing a condom. He also ejaculated during penetration. You were complicit in Mr Thomas’ rape of Ms Hulls. I am satisfied that you encouraged the rape committed by Jared Thomas by your presence and the circumstances of your own commission of the offence of rape. At the time of your crimes, Ms Hulls was so affected by drugs or alcohol or both as to be incapable of consenting to sexual acts.
20After you had committed your crimes you drove to Ms Hulls’ residence. It is unclear how you became aware of her address, given the state she was in, but it is likely either you or Mr Thomas looked at her driver’s licence.
21It is not possible to know the exact circumstances of the commission of your crimes in Harding Street. Ms Hulls has no memory of the episode. The basis of the particulars of your crimes is formed by the medical and forensic evidence and some limited admissions made by you. You gave an account of the events at Harding Street in your evidence on oath during the trial. The prosecutor invited the jury to conclude that the substance of your evidence was fanciful. Often such rhetoric can be criticised for being intemperate or at least involving overstatement or over-reach. In this case, those comments resonated with the evidence and objective facts. I reject your evidence as to the particulars of the circumstances of Charge 1. The jury must also have rejected your evidence substantially. Accordingly, I find I am unable to act on your evidence as to belief in consent.
22The prosecution case as to the mental element of rape went to the jury on three bases however, and it is not possible to glean from the jury verdict how they approached the issue. Whilst I am satisfied that the extent of the incapacity of Ms Hulls must have been apparent to you at the time, I sentence you on the basis that you either, believed she was not consenting, including the circumstances of her being incapable of consenting due to intoxication, did not believe she was consenting, or could not reasonably have believed she was consenting. In the circumstances of this case, given the overwhelming evidence as to the circumstance of incapacity, a concession or finding that your mental state may have fallen under the third category has only slight effect upon your moral culpability.
Drive to Mernda
23On the drive to Ms Hulls’ residence, having left Harding Street, two telephone communications between you and witnesses in the case featured in the evidence. You told members of your party who had been travelling in the Nissan that Ms Hulls was safely home. At the time, she was still in the car and you were some minutes from her address. You arrived at her home at around 5:38 am. She did not exit your vehicle until 5:51 am. I am unable to accept your account of why it took 13 minutes for her to exit your vehicle. I am satisfied to the requisite degree that the delay was due to her level of intoxication and incapacity.
24Eventually Ms Hulls exited your vehicle. You handed her belongings to her. She was dishevelled, she was not wearing underwear. Her underwear was located in the front garden of her residence later that morning by her fiancé. Piecing together events based on observations that can be made of the CCTV footage and the location of her underwear, it is likely her underwear was around her ankle as she exited your vehicle and walked to the front door.
25She was clearly very unsteady on her feet heading to her front door. She used a key to open the front door. Once inside she went to bed. She was cold to the touch and had no memory of a large portion of the night. She had no recollection of how she got home. She was confused and disoriented. At one stage of the morning, she went to the toilet and could not locate the tampon she knew she had put in place the previous day. Her fiancé contacted Ms McCarthy at some time, who was still on her way home, having spent over an hour sitting outside the 7-Eleven on the opposite corner from where Ms Hulls had crashed. Later that morning Ms Hulls attended the hospital and was medically examined that evening. She had some bruises, there were also some abrasions that were perhaps not connected with the crimes. Forensic swabs were taken. The tampon that Ms Hulls had put in place the previous day was located high in her vagina.
26You were arrested and remanded on 26 June 2018.
Victim Impact Statement
27The impact of your crimes upon your victim were severe and are ongoing. I take the impact upon her into account. She describes feelings of numbness, confusion, anger, fear disbelief and frustration. She experiences exhaustion, nightmares, social isolation, lack of motivation and despair. She is hesitant to leave the house. She is having counselling for anxiety and depression. The crimes have affected her employment, her trust in strangers, her relationship, and her experience of pregnancy.
Objective Gravity of Offence
28The crime of rape is inherently serious as reflected by the maximum penalty of 25 years' imprisonment. The standard sentence for rape is 10 years. Like the maximum penalty, the standard sentence provides another legislative guidepost, and is a factor I have taken into account in arriving at an appropriate sentence in your case.
29Rape is an intensely personal crime involving the physical invasion of a person and their security. You showed a complete disregard for Ms Hulls’ fundamental human rights and preyed upon her when the opportunity arose. She was alone, and in an extremely vulnerable state, in your vehicle. You had encountered her only 12 minutes prior to your crimes commencing. She was passed out on the street, to put it plainly. She had no idea who you were when she got into your vehicle. She just wanted to be taken home. She needed to be taken home. Every other person who encountered her at that time recognised the state she was in and that she needed to be taken home. You and Mr Thomas offered to do just that, but then you took advantage of her vulnerability, within minutes.
30I am satisfied that your false statements to your friends whilst travelling between Harding Street and Mernda reflect your awareness of the shamefulness of your conduct. Your sexual attack on her, in the state she was in, was degrading and humiliating. She was powerless. There were two of you. That is an aggravating feature of your crimes. Aside from the physical violation, the crime of rape involves significant psychological and emotional violation of an individual.
31It has been submitted, with reference to Jurj v The Queen (‘Jurj’), that your crimes are absent circumstances of aggravation that are present in some other cases such as overt violence, over and above the inherently violent nature of the crime of rape in every instance, the use of a weapon, threatening behaviour, persistence despite resistance or protests and humiliating or degrading conduct other than what has already been referred to.[4] I accept the submissions in this regard, and the Jurj factors are useful to consider in assessing the gravity of a case of rape. However, it must be observed that aggravating features of the type described, typically occur in circumstances which are mutually exclusive from the circumstances of your crimes.
[4]Jurj v The Queen (‘Jurj’) [2016] VSCA 57
32Ms Hulls has no memory of events, and she was incapable of consenting. Her incapacity lies at the heart of your criminality. There was no occasion for the violent, threatening, or persistent behaviour I have referred to that is sometimes found in different forms of this very serious crime. In relation to each charge, no condom was used. Ejaculation occurred during penetration. These are aggravating features. These features are not diminished in any meaningful way by accepting the submission that Ms Hulls did not fall pregnant, nor has she contracted any sexually transmitted disease as a result of the crimes.
33I accept that your crimes sit within a description of opportunistic criminality, although not long after Ms Hulls was in your vehicle the conduct you and Mr Thomas engaged in might also be described as predatory. I accept the submissions of your counsel that your crimes are absent aggravating features such as gratuitous, degrading or humiliating behaviour, and that these facts together with an appreciation of the duration of the offending, an absence of significant injury, and the fact you dropped Ms Hulls at home and assisted her in collecting her belongings, as opposed to abandoning her, are relevant to my overall assessment of the gravity of offending.
34I accept your cognitive functioning has been assessed as low average to borderline.[5] And I refer to the report of Mathew Staios, Psychologist, dated 10 December 2021. I accept the finding of Psychologist Mathew Staios in his report at paragraph 7.3 as follows:
Mr Palise’s self-reported significant substance use is a factor that should be taken into consideration, against a background of his low average capacity for abstract reasoning and limited understanding of social rules. In instances where Mr Palise is acutely intoxicated, his intellectual abilities are highly likely to be further limited, which will further compromise overall cognitive skills. These aforementioned issues, in combination with a concrete thinking style and limited understanding of social norms, are likely to result in a reduced ability to monitor his actions and respond appropriately, rely upon consequential and alternative thinking skills, and effectively monitor his behaviours without support.
[5]Report Mathew Staios Psychologist 10/12/21.
35Taking these findings into account does not diminish my assessment of your moral culpability, given the circumstances of your offending. Your moral culpability is high. Your treatment of your very vulnerable victim was degrading and abhorrent. It requires my strong denunciation on behalf of the community. I must deter others by sending the clear message through the punishment I impose upon you that individuals who might be tempted to exploit the vulnerability of others in the way that you have should expect stern punishment.
Personal Circumstances.
36Turning to your personal circumstances. You are 30 years of age. You were 26 years of age at the time of the commission of the offence. You are the eldest of five children to your parents. At the time of the commission of these offences, I understand you were living with your mother and your then six-year-old daughter from a previous relationship. Your daughter is now aged 10. You have had sole custody of your daughter when you have been at liberty.
37You completed your formal education to Year 8 at Banksia Secondary College. For the most part as I understand it since then, you have been employed since school by your father who runs a floorboard business in Heidelberg. You have maintained consistent employment with your father, but you have also worked in road maintenance, panel-beating, carpentry and floor sanding. You have reported significant substance use issues since your early childhood years. Prior to your incarceration in 2018 and whilst on bail for this matter, you have had an interest in indoor cricket. You either played or trained for four nights per week previously.
38Your daughter has lived with you for most of her life. Her mother and you were separated at the time of her birth and not long after she was placed in your care. I note that one of your prior convictions, as I understand it, relates to threatening serious injury to your daughter’s mother. Your next relationship led to your incarceration in 2017. I received the sentencing remarks of Judge Carmody in relation to your offending at that time. The offences of kidnapping and using a carriage service revealed a disturbing attitude toward your then partner.
39At the time of sentence, Judge Carmody noted that since the offending before him you had attended the Plenty Valley Community Health Men's Behaviour Change Program. You also completed six of the 14 sessions in that program. You'd also attended at a similar program in Dandenong before enrolling in the Plenty Valley program. Judge Carmody also had before him a report from Psychologist Matthew Staios, dated 18 September 2017 which assessed your functioning in similar terms, as the report before me indicates.
40You were sentenced by Judge Carmody to six months' imprisonment on 25 September 2017 in combination with a two-year community corrections order, with conditions aimed at addressing the concerns raised by your behaviour and the findings of Mr Staios. You were released from prison and entered your community corrections order on 26 February 2018. The offences before me were committed in June of that year. Your previous convictions raise concerns regarding your attitude to women, they raise concerns about your prospects of rehabilitation, despite the programs and the order you were under at the time, and they militate against leniency for this matter.
41
Your relationship with your current partner, Elena, dates back to 2017. You have been together for five years. She remains supportive of you. She lives with your mother and your child. At the time of your plea, she was expecting your second child, and that's a reference to that birth in the report of
Mr Staios. You were in custody of course during that period.
42You were remanded on this matter on 26 June 2018. You were bailed on fairly onerous conditions in July 2020. During your initial period of remand between June 2018 and July 2020, you maintained employment within the prison. This included an appointment as a mentor in the Marlborough Unit of Port Phillip Prison. This was a position of responsibility, as it required you to assist other inmates within the unit who had intellectual disabilities or vulnerabilities. Mr Darryl Ramsay, a Christian Chaplain employed with Prison Fellowship Victoria, made the following observation regarding you.
I observed Harley interacting with other inmates in this capacity with compassion and generosity.
43You were given an acknowledgment letter by the Deputy General Manager of Port Phillip Prison, Mr Ali Assafiri, who made the following remarks:
I would like to formally acknowledge your outstanding work ethic as the Marlborough Unit Mentor in particular noting the successful work with Mr DD. Marlborough Mentors are often presented with complex and challenging behaviours in men to care for and mentor. You have worked closely with DD over the past few months and successfully helped him progress in his own behaviour management strategies.
44You completed the following courses during your 2018-2020 period of remand. Coping with Change Program, Port Phillip Prison Peer Support Program, Court readiness delivered through the Prison Legal Education & Assistance Project. A program entitled, 'Why are Relationships Changing?'
45You were released on bail on strict conditions in July 2020. You were required to abstain from drinking, you could only leave home in your father’s care, and you had daily reporting. You abided by these conditions, as I understand it. It was submitted by your counsel as demonstrated, that you are someone who is capable of abiding by the law, and leading a life on the ‘straight and narrow.’ Testimonials were provided by people close to you who spoke of your good character as they understand it. Your mother and father have written of you since being on bail:
Harley has changed over the period of time since the offence happened back in 2018. He has become more calm and maybe even withdrawn.
46During your current period in custody the opportunity for programs has been limited, due to the pandemic. I was however provided with correspondence dated 15 November 2021 from Ms Valentine Gonsalves regarding your participation in group therapy whilst in Port Phillip Prison. You engaged in a 10-week program aimed at addressing communication and socialization skills and also to remedy inaccurate or distorted thinking patterns, emotional responses and behaviours. The report indicates you have been engaging well and you would be at least halfway through the program.
47I take into account that your current experience of custody in the pandemic is more onerous and restrictive than it otherwise would be. You also experienced several months of the same restrictive environment prior to your release on bail last year. In your case, the restriction on visits and inability to maintain a face-to-face, in a physical sense, relationship with your daughter, partner and newborn, will be felt most harshly. These circumstances will continue for some time, and I take them, and the other consequences of custody during the pandemic, into account.
Parity
48I must take into account parity, or to approach it another way the appropriate degree of disparity, where Charge 2 is concerned. The principle of parity has some application where Charge 1 is concerned also. The circumstances of disparity are clear. The most pertinent disparate circumstances between you and Mr Thomas are set out below:
49Disparate Circumstances
Age
Previous character
Court Order
Plea
Palise
26
Relevant priors
Subject to court order at time of offending
NG
Thomas
23
Nil priors
No court order
PG
50There are other differences of a more nuanced character, such as
Mr Thomas's personality make-up compared to you, however such matters are impossible to quantify, and of minimal significance in my view, in the sentencing of an individual and even less significant where parity/disparity applies.51Mr Thomas’s plea was not at the earliest opportunity. A contested committal hearing was held in the matter. Nevertheless, his plea constitutes a significant difference between his case and yours. I have had regard to the sentencing remarks of Judge David Sexton in Mr Thomas’s case, and to the Court of Appeal’s consideration of the Crown appeal in the matter. I have also had regard to your counsel’s helpful submissions on parity.
I have endeavoured to impose a sentence that is not so disparate from the sentence imposed upon Mr Thomas in respect of Charge 2 as to give rise to a justifiable grievance, bearing in mind the significant differences in all the circumstances.52Submissions were made by both parties in relation to totality and the need for some cumulation to reflect the overall criminality. Mr Dickie on behalf of the prosecution submitted as a general proposition, that the circumstances of your complicity in the rape by another called for a greater degree of cumulation between charges than the circumstance of an individual committing more than one offence of rape against the same victim during a single episode. Mr Kelly SC also made submissions in relation to cumulation, referring me amongst other matters to the Court of Appeal’s remarks regarding the nine months cumulation in Mr Thomas’s case. In the context of the cumulation between charges in Mr Thomas’s case it is relevant that the evidence supporting Charge 2 in his case arose entirely from admission made by him.
53I have had to take considerable care to avoid any double punishment that could otherwise flow from the circumstances, accepting that:
(i)An aggravating feature of each charge of rape is the fact that it was committed in company with another.
(ii) You are also being sentenced on the basis that you were complicit in the rape committed by another.
(iii) Some cumulation between the two sentences is warranted to reflect the overall criminality.
Standard Sentence
54The sentence I am about to impose in respect of each charge of rape is lower than the standard sentence. Having identified and considered the relevant factors in assessing sentence, including the standard sentence, the objective seriousness of the offending, your prospects of rehabilitation and the matters in mitigation I have referred to, my intuitive synthesis of these factors have led to the sentences I impose.
55I will repeat once more that general deterrence, and denunciation are prominent sentencing considerations in your case for the reasons I have set out. Specific deterrence remains relevant also.
56Despite the concerns raised for your rehabilitation, appropriately, given your antecedents, I have also had regard to your conduct in custody and on bail, your willingness to engage in programs, and the protective factors of family and employment available to you upon release. I consider your prospects of rehabilitation to be reasonable. I consider that having regard to all of the matters personal to you, including your relationship with your daughter and what I assume is the recent birth, I have not been given any updated information in relation to that, recent birth of your son, that there is merit in your counsel’s submission for a relatively shorter non-parole period in relation to the head sentence.
Sentence
57Mr Palise, I sentence you as follows, and you can remain seated where you are.
58On Charge 1, you are sentenced to be imprisoned for eight and a half years.
59On Charge 2, you are sentenced to be imprisoned for eight years.
60I order that 18 months of the sentence imposed on Charge 2, be served cumulatively upon the sentence imposed on Charge 1.
61That makes a total effective sentence of 10 years' imprisonment. I set a non-parole period of six years and three months.
62Pursuant to s 18 Sentencing Act I declare that you have served 874 days of pre-sentence detention for this matter, not including today.
63HIS HONOUR: Mr Dickie are there any other orders that are required? No?
64MR DICKIE: No, Your Honour.
65HIS HONOUR: There are not, all right. Mr Kelly anything required for clarification?
66MR KELLY: No, Your Honour.
67HIS HONOUR: All right, yes, we'll adjourn the court.
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