Director of Public Prosecutions v Palmer
[2018] VCC 2011
•30 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-18-00740
CR-18-00741
CR-18-00742
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM WILLIAM PALMER |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2018 | |
DATE OF SENTENCE: | 30 November 2018 | |
CASE MAY BE CITED AS: | DPP v Palmer | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2011 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N. Donaghy | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Valos Black & Associates |
HER HONOUR:
1 Adam Palmer, you have pleaded guilty to one charge of burglary, the maximum penalty ten years’ imprisonment, four charges of theft, the maximum penalty ten years’ imprisonment on each charge, two charges of aggravated carjacking, the maximum penalty 25 years’ imprisonment, with a mandatory minimum non-parole period of three years, three charges of armed robbery, the maximum penalty 25 years’ imprisonment, one charge of obtaining property by deception, the maximum penalty ten years’ imprisonment; being a prohibited person in possession of a firearm, the maximum penalty ten years’ imprisonment or 1,200 penalty units, one charge of criminal damage, the maximum penalty ten years’ imprisonment, and one charge of attempted aggravated carjacking, the maximum penalty 20 years’ imprisonment.
2 In addition, pursuant to ss145 and 242 Criminal Procedure Act 2009, you have agreed to this court hearing two summary charges and have pleaded guilty to them, specifically Summary Charge 3, unlicensed driving, the maximum penalty three months’ imprisonment or 25 penalty units, and Summary Charge 7, dealing with property suspected of being the proceeds of crime, the maximum penalty two years’ imprisonment.
3 These crimes arise out of events which took place between 30 July and 23 October 2017. It is not necessary for me to recount in great detail the facts of this matter, as the matter was opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as so summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing. In addition, you have an extensive criminal record for very concerning offending, to which I shall shortly refer. I turn then to a summary of your offending.
4 At the time of the offending you were 30 years of age and at time of sentence, 32.
Summary of offending
5 The charges before me arise from eight incidents that occurred between 30 July 2017 and 23 October 2017, involving:
(a) Strathmore Eye Care on 30 July 2017 - burglary and theft with an unknown co-offender (Charges 1 and 2);
(b) Lalor Plaza on 11 October 2017 – aggravated carjacking, armed robbery, obtaining property by deception, unlicensed driving (Charges 3, 4, 5 and Summary Charge 3);
(c) Dan Murphy’s on 20 October 2017 – armed robbery, prohibited person possessing a firearm and theft with co‑offender, Shaun Benney. That is in relation to the armed robbery and at Dan Murphy's (Charges 6, 7 and 8);
(d) Equitable Place on 23 October 2017 – theft (Charge 9);
(e) Hell’s Kitchen on 23 October 2017 – armed robbery, criminal damage (Charges 10 and 11);
(f) Coles car park, first incident on 23 October 2017 – attempted aggravated carjacking (Charge 12);
(g) Coles car park, second incident on 23 October 2017 – aggravated carjacking (Charge 13);
(h) Target on 23 October 2017 – theft (Charge 14).
6 Paragraphs (d)-(h) involve five ‘sets of offending’ and Summary Charge 7, occurring on 23 October 2017.
7 There was a co‑accused in relation to Charges 6 and 7 on the indictment, Shaun Benney, who was 31 at the time of the offending. He pleaded guilty to armed robbery and being a prohibited person carrying a firearm, your charge is prohibited person in possession of a firearm, and was sentenced by her Honour Judge Hogan on 16 May 2018 to a total effective sentence of 5 years, 6 months’ imprisonment with a non-parole period of 3 years and 3 months’ imprisonment.
8 I shall address the issue of parity later in these sentencing remarks.
Strathmore Eye Care – Charges 1 and 2
9 On 30 July 2017 at 1.42 am you, in the company of an unknown co‑offender, arrived at the front entrance of Strathmore Eye Care in Essendon. You used an unknown tool to smash small holes in the front glass door of the store, then smashed a larger hole in the right-hand side front window.
10 You gained access to the store (Charge 1) through the larger hole and in doing so, cut yourself. Inside the store you removed a petty-cash tin containing approximately $20 cash and 15 pairs of Bollé sunglasses valued at $3,000 (Charge 2).
11 You left what appeared to be blood on the hole in the glass front window and on the glass Bollé cabinet inside the store.
12 You and your unknown co‑offender left the scene prior to police arriving.
13 Police conducted a forensic examination and took a swab of what appeared to be blood from the glass Bollé cabinet. Subsequent examination identified that DNA belonged to you.
The Lalor Plaza offending (Charges 3, 4, 5 and Summary Charge 3)
14 On 11 October 2017, Khaled El‑Massri went to Lalor Shopping Plaza in his car and parked in the car park. Just before 7 pm he left Coles supermarket with his shopping and returned to his car. As he entered the car park, you began to follow him.
15 El‑Massri got to his car and put his shopping on the front passenger seat. As he got into the driver’s side door, you opened the front passenger door and got into his vehicle.
16 You partially removed a kitchen knife with a 20 centimetre blade from your right sleeve, and said to him, “I just need a lift”. El‑Massri asked you where you wanted to go. You said, “I need to go to Epping to get my drugs.”
17 You told El‑Massri to drive out of the car park and he did so. On Dalton Road, you told him to pull the car over and said, “I don’t want to hurt you and everything, so I’m just going to take your car and go.” El‑Massri saw that you were agitated and fidgeting with the knife. You got out of the vehicle and walked around to the driver’s door and demanded El‑Massri get out of the vehicle. As he did so, you reached into his pants pocket and removed his Samsung mobile phone. You also had El‑Massri’s wallet (Charge 4). You then got into the car and drove off down Dalton Road (Charge 3 and Summary Charge 3).
18 At home, El‑Massri contacted his bank to cancel his credit card and was told his Westpac bank card had just been used in a transaction at the Caltex Star Mart service station at Campbellfield. That card was used to purchase $60 worth of fuel (Charge 5).
19 Analysis of a fingerprint located on a tissue box in El‑Massri’s car was identified as belonging to you.
The Dan Murphy’s offending (Charges 6, 7 and 8)
20 Turning first to the background to that offending.
21 On 20 October 2017 at approximately 7.30 am witness, Chris Daw, saw two males on a vacant block next to his workplace, Customline Caravans in Somerton. He went to speak to the two males to find out what they were doing. One, alleged to be you, indicated you lost your Hilux car keys. They asked if they could come in and look for the keys and Daw let them in. Daw described one of the males, (your co‑offender Benney) as having a particular tattoo on the inside of his left forearm, amongst other distinctive tattoos.
22 Daw continued to talk to Benney while you looked for your keys. In the course of the conversation, Benney removed a longarm firearm from under his clothing and stood the stock end on the ground, telling Daw it was a .22.
23 Daw asked you what the rifle was for and you replied, “to shoot rabbits”. Daw left you both and went inside the office and spoke to another employee about whether they should call the police. You held up your hand and said you had found your keys and you and Benney left.
24 Daw later saw you and Benney running off in a westerly direction and contacted 000. He later went back to the area where he had initially seen the two males and noticed the fence had been cut.
25 On 21 October 2017 the firearm was reported as having been stolen from an address in Clonbinane.
26 At 11.25 am on the same day, 20 October 2017, you and Benney went to Dan Murphy’s in Brunswick, driving a black Honda Civic. You went into the store and asked the employee, “Is it just you two on?”, further asking a female employee, “Are you girls here by yourself?” You then left the store and walked back towards the Honda Civic. This was captured on CCTV.
27 At approximately 12.10 pm you and Benney drove back to the Dan Murphy’s car park in the same car with Benney driving. You got out of the car and went into the store. While you did that, Benney reversed the car so it was positioned with the rear at the entrance to the store.
28 At the cash register you rested a black backpack on the counter and pointed a rifle at Dan Murphy’s employee, Ella Menzies (Charge 7). Another employee, Erin McAlinden, was standing nearby with a customer. Some of the customers hid together behind a wine barrel to stay out of sight.
29 You demanded Menzies open the register, and as she did so you moved behind the counter. You removed the cash and demanded that all the other registers be opened. McAlinden then opened the other two registers and you removed the cash, placing it in the black bag you had with you (Charge 6).
30 You left the store and got into the front passenger seat of the black Honda Civic and your co‑offender drove down Albion Street.
31 This incident was captured on CCTV. A number of witnesses subsequently also contacted 000 to report erratic driving by Benney.
32 You and Benney then parked in the car park of Aberfeldie Baptist Church and changed your clothes.
33 You jumped the fence of a residence in Essendon and concealed the firearm behind the rear of a parked caravan in the driveway of that residence. At 1.30 pm, Jane Westwood saw you and Benney walking down the driveway of the Price Street address as you left. One of you was wheeling a black mountain bike belonging to Peter Westwood (Charge 8). Peter Westwood returned home at about 3.15 pm, found the rifle behind the caravan and contacted police.
34 The Honda Civic was subsequently forensically examined by police and two latent fingerprints were lifted from the vehicle, one identifying Benney and the other you.
The Equitable Place offending (Charge 9)
35 On Monday, 23 October 2017, Joel Anderson had lunch at a cafe in Equitable Place, Melbourne. During lunch he put his iPhone down on the table. After lunch, at about 2.00 pm, he walked to Flinders Street Station. He realised he did not have his phone and that he must have left it on the table where he had had lunch and he returned to the cafe.
36 At approximately 2.00 pm that day, you were in the CBD in the vicinity of Equitable Place and took Anderson’s phone (Charge 9).
The Hell’s Kitchen offending (Charges 10 and 11)
37 At 3.15 pm, you entered Hell’s Kitchen, a restaurant in Centre Place, Melbourne and approached Ryan Coffey, who was working behind the bar. No one else was in the restaurant at the time. You asked questions about beer and food, then ordered some food.
38 As you spoke, you moved closer to the till. Coffey prepared your food order and observed that you appeared edgy and were looking around a lot.
39 You continued to ask Coffey questions such as, “What time do you close?”, “What are your hours like?” and, “Are you busy?” You also asked Coffey if he was working alone.
40 As soon as the food was placed down on the bar, you put your hood on and dashed around to the other side of the counter. You were holding a knife in your right hand, described by Coffey as approximately 4-5 inches in length. The handle was obstructed by your sleeve.
41 You attempted to open the till with your knife and pointed to the till. Coffey opened the till, as requested by you. You removed all the cash. You also demanded Coffey’s vehicle and mobile phone. Coffey told you he did not own a vehicle.
42 You opened a cupboard and located a safe. You gestured towards Coffey with the knife and pointed towards the safe. You said, “I don’t want to hurt you, I’m just taking your stuff.” Coffey walked over, opened the safe and you emptied it (Charge 10). Coffey moved around to the other side of the bar counter, away from you.
43 You continued to ask him where his mobile phone was. He then sought assistance from a nearby restaurant, Jungle Juice Bar. The incident was captured on CCTV.
44 The total amount of cash stolen as a result of that was approximately $4,120 and the damage to the till was valued at $895 (Charge 11).
Coles car park, first offending (Charge 12)
45 On 23 October 2017, Laxman Adhikari drove to the Coles supermarket in Reservoir with his wife and 8 month old son. His wife went into the supermarket while he stayed in the car with his son.
46 At approximately 5.55 pm you got into the front passenger seat of his car, pulled a knife out of your shoulder bag and held it to his throat saying, “Keep going or I’ll kill you”. He put the car into reverse (Charge 12). Adhikari asked you what you were doing and told you there was a baby in the car. You looked into the back seat and saw the baby and said, “Sorry my friend” and took the knife away from Adhikari’s throat.
47 You looked through the glove box but did not find anything and got out of the car and ran away. The incident was captured on CCTV.
Coles car park, second offending (Charge 13)
48 Minutes after the incident involving Adhikari, another victim, Luke Douglas, was at the supermarket doing his shopping. At approximately 6.00 pm, he left the supermarket and walked to his car, got into the driver’s seat and put his groceries on the passenger seat. He noticed that you were standing behind the car.
49 You quickly walked around to the side of the car and tried to get into the front passenger seat. Douglas pushed you away, asking what you were doing and telling you to, “Get out”. Douglas was slowly reversing the car at the time. You got into the car and said, “Give me your phone, wallet and your car”. Douglas noticed you had your knife in your right hand. You showed the knife to Douglas and repeated your demand for the phone, wallet and car (Charge 13).
50 Douglas said, “Just take it” and pretended to reach into his pockets to get his phone and wallet. Instead, however, he opened the door and got out. The incident was captured on CCTV. You moved into the driver’s seat and drove out of the car park at high speed with the door still open.
The Target offending (Charge 14)
51 At about 6.40 pm on 23 October 2017, you attended Airport West Shopping Centre and went into the Target store. In Target you walked to the rear warehouse, picked up a high-visibility fluorescent vest and went behind the counter of the unstaffed layby area.
52 Using a hammer, you forced the drawers of five cash registers open. Two registers contained cash amounting to approximately $1,265. You removed both of the drawers containing cash and exited the store through a rear emergency exit (Charge 14). You were seen running through the car park carrying something in front of you.
53 CCTV footage captured you attending the centre and committing the theft.
54 You were seen by Theo Pashalis near the shopping centre on the street, on your hands and knees, removing cash from the register drawers. He reported the incident to police while keeping you under observation.
55 You then entered the yard of a residential address on Marshall Road, Airport West and climbed over fences of adjoining properties. Again, CCTV footage from one of the properties captured you.
56 Items of clothing worn by you and carried by you, as well as other items, were discarded as you were running away. Police arrested you shortly thereafter.
Arrest and record of interview
57 At your arrest on 23 October 2017, police searched you. You were found to be carrying, amongst other items referred to in paragraph 60 of Exhibit A, $3,775.85 in cash (Summary Charge 7). Other items were also located, as described in paragraph 61 (Exhibit A).
58 Located along the path you had taken from Airport West Shopping Centre to the point of your arrest was a hammer, a pair of black gloves, disposable coveralls (used at Dan Murphy’s) and clothing.
59 You were taken to the police station where, due to your drug intoxication, you were assessed by a Forensic medical officer as unfit for interview. You were charged and remanded. You later declined being interviewed in relation to the alleged offences.
60 On 24 October 2017 you were moved to the Melbourne Custody Centre and a search of you located $1,100 cash inside your right sock.
61 On 28 October 2017 police arrested your co‑offender, Benney, who participated in a record of interview. He made admissions to the offending at Dan Murphy’s, but said he was threatened by you to ensure he participated. The prosecution did not accept his explanation on the plea for Benney. The prosecution submission was that Benney participated in the planning of the armed robbery and assisted you to execute that plan as a willing participant and the plea proceeded on this basis.
Timing of the plea
62 This matter resolved on the third committal mention date. The prosecution concede and I accept your pleas of guilty were early.
63 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour in sentencing you, and I do so. You have, by your pleas, spared the time and cost of a trial and spared any of the witnesses having to give evidence upon your trial. I also take into account you intimated early your intention to plead guilty to these charges and there was not a contested committal held.
64 In the circumstances, I am prepared to accept, in your case, your plea of guilty indicates some remorse for your offending, although I am concerned about the extent of the remorse, given the circumstances and extent of it, given your extensive and relevant criminal history.
Criminal record
65 You have admitted an extensive criminal history, your first appearance in Melbourne Magistrates’ Court on 29 November 2004. Your history involves numerous court appearances for dishonesty offences, damage property offences, burglary, driving whilst disqualified, amongst other driving offences, robbery, armed robbery, possess prohibited weapon, unlicensed driving and possess drugs, in particular specifically methylamphetamine and committing offences whilst on bail. You have, in the past, been charged with aggravated burglary, person present and recklessly cause injury.
66 You have, in the past, received terms of imprisonment for your offending and also community corrections orders, some of those breached.
67 At the time of this offending, you were on a community correction order imposed on 7 September 2016, varied on 21 June 2017, extending the order to 22 January 2018. That you were on a court order at the time of your offending is an aggravating feature of it. You are, of course, not being sentenced for that breach, rather that your offending was whilst on a court order.
68 A feature of your offending was your ‘attempt’ at disguise at Dan Murphy’s by wearing the hood of your hoodie over your head. As discussed with Mr Backwell, I accept not a sophisticated attempt at disguise and not covering your face. Even less attempts at disguise used during your other offending.
69 The prosecution provided a chronology in relation to this plea (Exhibit B).
70 Your counsel, Mr Backwell, prepared a written outline of submissions and addressed them during the course of your plea hearing. He referred to your personal circumstances. You are the middle child of three, having had a chaotic background and childhood. You were subject to a number of Department of Human Services placements in different youth residential units over the years and were sexually abused whilst in care. You had previously been diagnosed with Asperger’s and autism. You did not complete Year 7.
71 I accept you have had a chaotic childhood and background and have spent your years in some form of either detention, care or in prison. Such is a relevant sentencing consideration, consistent with DPP v Terrick & Ors[1], and recently in DPP v L’Eveille[2].
[1] [2009] VSCA 220 [45]-[47]
[2] [2018] VSCA 60
72 You have a long history of drug abuse, using methamphetamine at the time of each of your offending before me. At the time of your arrest, I note you were not fit to be interviewed due to your drug use.
73 I do, however, accept that you have entered your pleas of guilty at the earliest opportunity and by your pleas, as I have said, facilitated the course of justice and shown some remorse.
74 Mr Backwell referred to you having been in custody since 23 October 2017. As at 18 November 2018, you had spent 392 in custody by way of pre‑sentence detention for this offending.
75 He also submitted that many of your previous prison sentences had been spent on protection and that you were currently in protection. I note this and such is relevant when sentencing you. Given your history on protection, it is likely you will remain so classified.
76 Turning to your prospects of rehabilitation, Mr Backwell submitted there was some encouragement and referred to the assessment by Dr Zimmerman (paragraph 26). I am sure you are well aware you need to cease your substance use if you are to avoid returning to prison. Drug use appears to be your main problem and when in the community, you end up associating with anti-social peers involved in illicit substance-abuse world. Your repeated cycle of drug use, offending and gaol will be very hard for you to break. To date I do not have great confidence you will be able to maintain a drug-free lifestyle when you ultimately return to the community.
77 Mr Backwell conceded a term of immediate imprisonment was warranted, although expressed concern you were becoming institutionalised, if you were not already. I am aware of this, however as I discussed with Mr Backwell, many of your offences are very serious ones, involving offending on multiple occasions, with serious offences with high maximum penalties, extensive and relevant prior criminal history and multiple victims, and that list is by no means exhaustive.
78 I turn to the report of Dr Nina Zimmerman, Forensic Psychiatrist, dated 2 November 2018.
79 Dr Zimmerman referred to your background in more detail. You described having grown up around Woodend and ‘in gaol’. You referred to your background with your parents and I note your father was in court to support you during your plea hearing, having travelled from Sydney to be here. You have had some visits from your father and paternal grandmother whilst in custody.
80 You described that the Department of Health and Human Services (DHHS) eventually became involved, due to your failure to learn at school and you were removed from your home by the Department. You would ‘hang out’ on your own at school and were often bullied. You described finding it impossible to make friends, as you were "different" from other children.
81 You struggled at school, not learning to read and write. You had trouble saying words and had to sound everything out slowly. In addition, you were moved around different DHHS placements and also spent time in Secure Welfare.
82 You described being sexually molested when in care, however would not elaborate on that. I was told by Mr Backwell, you were to give evidence before the Royal Commission into Institutional Sexual Abuse, however, as you were in custody, you were unable to appear.
83 You described past work as a spray painter and having completed a Certificate II in Hospitality.
84 You said following your last release from custody, you ‘couch surfed’ for a period of time at your "Nan’s" A friend of yours overdosed on heroin during that time and you began to use drugs heavily to copy with that grief.
85 You said religion was important to you and you were part of a prison fellowship. In that regard, I heard evidence Mr Peter Skopilianos, to which I shall shortly refer.
86 Dr Zimmerman had access to reports previously prepared regarding your history, specifically a report of Ms Cidoni, dated 8 August 2016 and a report of Dr Cunningham, dated 10 September 2012.
87 Turning to your psychiatric history, you reported being diagnosed with autism and Asperger’s when you were about 15 years of age and taking medication for ADHD at some time. You could not recall having ever seen a psychiatrist and you had never been admitted to a psychiatric unit.
88 You described a period of suicidal thoughts after your best friend died of a heroin overdose and that you coped with that grief by using drugs.
89 Since returning to prison most recently, you described seeing 2D and 3D images of people walking around and hearing your name called out by your dead mate.
90 You described that overall you felt more relaxed in prison, “It’s easy in here". You felt anxious and would ‘freak out’ when in the community and with ‘people all around’.
91 Turning to your psychiatric history, reference was made by Dr Zimmerman to the report of Ms Cidoni of 8 August 2016 (paragraph 22). Ms Cidoni assessed you as having a full scale IQ of 74.
92 Dr Cunningham opined in his report of 10 September 2012, your presentation was consistent with a diagnosis of Asperger’s disorder and referred to your low self-esteem and difficulties socialising at school. Dr Cunningham, through testing, concluded you performed in the superior range of intelligence ‘consistent with the presence of Asperger’s disorder’.
93 Turning to your substance use history, you described having begun chroming when a teenager and subsequently using ‘whatever was around’, including methamphetamine (ice), heroin or tablets. You were also using Benzodiazepine for a time when you were 25 years of age to get off alcohol, which then led to heavy abuse of Valium and Seropax. You have also used ecstasy and LSD in the past.
94 Despite your use of drugs over the years, you told Dr Zimmerman you did not want to use drugs ever again, "If I use, I go overboard and I do something stupid". As I said, I am sure you are well aware of the impact of your drug use leading to illegal activity by you. Only one person can break the cycle and that is you. It is very difficult to see at this stage if you are ever going to be able to break that cycle.
95 Describing your offending before me, you again said you were released from prison in January 2017 and spent time living on your paternal grandmother’s couch. Within a week, however, you returned to using IV ice in increasing amounts, which continued until the time of your arrest.
96 You were at that time struggling financially and your offending occurred in that context. You described the circumstances of some of your offending as best you could remember it (paragraph 31).
97 Turning to Dr Zimmerman’s opinion, you described your background as a feeling that you had been abandoned and thereafter, reporting behavioural problems/absence from class at the time you were placed in care. You then began using a range of drugs and getting into trouble with the law. Past deaths of your friends had also been traumatic (referred to in paragraph 40).
98
You provided a clear history of poly-drug abuse from your teens throughout your adult life. You had a diagnosis of poly-drug dependence and
Dr Zimmerman noted, as do I, there is risk of your worsening institutionalisation.
99 You attributed your offending to your heavy use of ice at the time. You knew you needed to address your substance use. Dr Zimmerman noted it would be a great challenge to you to build up the skills you needed to cope in the world without drugs. I agree.
100 Mr Backwell confirmed he was not relying upon the principles in R v Verdins & Ors[3] and such, in my opinion, was an appropriate concession in the circumstances, based on the material before me.
[3] (2007) 16 VR 269
101 There was evidence from Mr Peter Skopilianos, who had come into contact with you through prison fellowship. He attended prisons to help out inmates and encourage them to make the right decisions in life. He also conducted Bible studies. You attended his Bible studies group. You said you wanted to try and "get off drugs’. Mr Skopilianos said because of the limited time he was able to spend at the prison, he hand-picked the prisoners that he wanted to change. You were one of those prisoners. He came into contact with you about a year ago. He asked if you would like to join the Bible group and you were very keen to do that and you have remained in that group.
102 He said you began to talk about good and bad and sins and expressed sorrow for your offending and he prepared a brief letter by way of reference (Exhibit 4).
103 Mr Backwell submitted you were remorseful for your offending beyond the plea of guilty and referred to correspondence written by you, dated 20 June 2018 (Exhibit 5). In that you expressed shame and remorse for your offending. You acknowledged the victims of your offending had suffered considerably.
104 You understood your abuse of drugs and alcohol created a self-destructive, self-loathing, hateful and angry man.
105 Before me also were three certificates of courses completed by you whilst recently in custody. A Coping Enhancement and Well-Being program, a 12 hour Substance Use Program and a 12 hour Psycho-Educational Program (Exhibit 3).
106 I also discussed with your counsel, Mr Backwell, the principles relevant to parity, given your co‑offender, Mr Benny, was involved at the time of the offending, relevant to your Charges 6, 7 and 8, or 6 and 7 specifically. I discussed with Mr Backwell the sentence imposed by her Honour Judge Hogan on 16 May 2018 relevant to his offending. Benney was before her Honour to be sentenced on a charge of being a prohibited person in carrying a firearm and a charge of armed robbery, referrable to the Dan Murphy's incident. Paragraph 25 of her Honour’s reasons for sentence provide details of Benney’s offending.
107 During the course of your plea hearing I discussed that sentence with Mr Backwell, that Benney did not have any robbery or armed robbery charges in his criminal record and on the other hand, you did. Ultimately Mr Backwell conceded, appropriately in my opinion, the issue of parity was not an issue in this case, that there was sufficient material before me, Mr Backwell submitted, in relation to your offending, not relevant to Benney. It would also appear that Benney was not on a court order (ie: community correction order) at the time of his offending.
Victim impact statements
108 There were two victim impact statements before me, both read into the transcript. The victims of your offending have suffered considerably in the manner described in their statements.
109 There was a victim impact statement from Luke Douglas. He stated your offending had had a big effect on him emotionally in the weeks and months afterwards. He kept thinking about and replaying what had happened in his head. He kept thinking about what could have been done differently and if he might have been injured if that had happened. It took a number of days to get his head straight. It was difficult to talk about your offending. He was still edgy and nervous in supermarkets and in the car parks when he gets into the car.
110 His car was damaged after it was stolen and was written off by the insurance company after it was recovered. He then had to spend time searching for a car and to purchase one quickly, as he was reliant on it to get to work.
111 For quite a while after your offending he felt unsafe in the area. The supermarket was right near his home. It affected him emotionally, particularly in the first few months.
112 There was a victim impact statement from Erin McAlinden. She described that your offending had affected her in a number of ways. At the time of her victim impact statement, she still felt anxiety, especially when working at Dan Murphy’s stores. She had a heightened sense of security at work and was very conscious of what could happen during the shift. Sounds like screeching tyres created a knot in her stomach.
113 Since the incident she has moved to another store, however, when asked to work at the Brunswick store, she felt worried and unsure about what could happen. Your offending had made her feel unsafe at work. She had been building her career at Dan Murphy’s and she felt she may not be able to manage her team effectively due to her feeling anxious about what could happen.
114 She had suffered from depression and anxiety for quite some time and the incident made it harder for her to cope with it. As time went on she was more aware of the adverse effects your offending had on her. She may need to leave her employment.
115 The effects upon a victim are a relevant sentencing consideration (s5 and s8L Sentencing Act 1991). I am conscious, of course, I must not allow the effects upon a victim to swamp the sentencing process.
116 Mr Backwell conceded appropriately in my opinion, the only disposition available to the court was a term of imprisonment.
117 Ms Upton, who appeared on behalf of the prosecution, referred to your offending overall as very serious and it is. She referred to the aggravated car-jacking offence and mandatory provisions regarding minimum non-parole period. I note Mr Backwell did not urge there was any ‘special reasons’ referable to the minimum non-parole period of three years to be imposed for the aggravated car-jacking offences (s10AD Sentencing Act 1991).
118 Ms Upton also referred to licence cancellation and disqualification as being particularly applicable to the aggravated car-jacking charges, in particular (s89 Sentencing Act 1991) and I discussed that further with counsel this morning.
119 Ms Upton provided one case where there had been a sentence imposed for car-jacking. In Arvidson[4] a decision of 1 September 2017. I have read that summary and sentence imposed in that case.
[4] [2017] VCC 1264
120 When assessing your prospects of rehabilitation, I am not at all optimistic in that regard. However when sentencing you, I must seek to maximise your chances of rehabilitation as they may be. Ultimately you know you have to stop drug use, otherwise you are going to be not able to break the cycle of drug use offending and returning to gaol, which as I discussed with your counsel, is a real shame.
121 As there are a number of charges before me involving multiple dates of offending, multiple and multiple victims, your offending referrable to Dan Murphy’s also was with co-offender Benny. The principles of totality and proportionality are relevant when sentencing you.
122 However, as well as matters personal to you, including your prospects of rehabilitation as I find them to be, I must take into account matters such as deterrence, especially general deterrence, which is of considerable importance in cases such as this and that sentencing principle relates to many of the charges before me, as an example, armed robbery and the car-jacking.
123 There is also the need for specific deterrence when sentencing you, given your extensive and relevant criminal history.
124 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. This continues to concern me.
125 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impost a just punishment.
126 The very magnitude of your crimes demands a sentence of some substance.
127 I sentence you as follows:
128 As I said, in sentencing you, I have taken into account principles of totality and proportionality.
129 On Charge 1, convicted and sentenced to 6 months’ imprisonment.
130 On Charge 2, convicted and sentenced to 6 months’ imprisonment.
131 On Charge 3, convicted and sentenced to 4 years’ imprisonment.
132 On Charge 4, convicted and sentenced to 3 years’ imprisonment.
133 On Charge 5, convicted and sentenced to 6 months’ imprisonment.
134 On Charge 6, convicted and sentenced to 5 years’ imprisonment.
135 On Charge 7, convicted and sentenced to 18 months’ imprisonment.
136 On Charge 8, convicted and sentenced to 6 months’ imprisonment.
137 Charge 9, convicted and sentenced to 6 months’ imprisonment.
138 Charge 10, convicted and sentenced to 4 years’ imprisonment.
139 On Charge 11, convicted and sentenced to 6 months’ imprisonment.
140 On Charge 12, convicted and sentenced to 2 years’ imprisonment.
141 On Charge 13, convicted and sentenced to 4 years’ imprisonment.
142 On Charge 14, convicted and sentenced to 6 months’ imprisonment.
143 On Summary Charge 3, convicted and sentenced to 1 month’s imprisonment.
144 On Summary Charge 7, convicted and sentenced to 2 months’ imprisonment.
145 I direct the following regarding concurrency and cumulation.
146 Charge 6 is the base sentence.
147 I direct that 1 month of Charge 1 be served cumulatively upon Charge 6.
148 I direct that 1 month of Charge 2 be served cumulatively upon Charge 6.
149 I direct that 10 months of Charge 3 be served cumulatively upon Charge 6.
150 I direct that 8 months of Charge 4 be served cumulatively upon Charge 6.
151 I direct that 1 month of Charge 5 be served cumulatively upon Charge 6.
152 I direct that 6 months of Charge 7 be served cumulatively upon Charge 6.
153 I direct that 1 month of Charge 8 be served cumulatively upon Charge 6.
154 I direct that 1 month of Charge 9 be served cumulatively upon Charge 6.
155 I direct that 9 months of Charge 10 be served cumulatively upon Charge 6.
156 I direct that 1 month of Charge 11 be served cumulatively upon Charge 6.
157 I direct that 6 months of Charge 12 be served cumulatively upon Charge 6.
158 I direct that 10 months of Charge 13 be served cumulatively upon Charge 6.
159 I direct that 1 month of Charge 14 be served cumulatively upon Charge 6.
160 I direct that 7 days of Summary Charge 3 be served cumulatively upon Charge 6.
161 I direct that 14 days of Summary Charge 7 be served cumulatively upon Charge 6.
162 For clarity, the orders for cumulation are upon each other and upon the base sentence.
163 That results in a total effective sentence of 9 years, 8 months and 21 days’ imprisonment and I direct you serve a period of 7 years before you are eligible for parole.
164 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges, but been found guilty of them, I would have sentenced you to 16 years’ imprisonment, with a non-parole period of 14 years.
165 Pursuant to s18(4) Sentencing Act 1991, I declare that you have spent 403 days in custody by way of pre-sentence detention for this offending, up to and including yesterday, 29 November 2018, and I direct that this be entered into the records of the court.
166 Pursuant to s89(4) Sentencing Act, I cancel any licences you hold (although I was told by the prosecution you do not have a licence) and this disqualifies you from obtaining any further licence for 6 years from today’s date. Whilst such a period of disqualification is somewhat ‘artificial’, given your non parole period, in determining the appropriate period of disqualification, I take into account R v Lefebure[5] are relevant to rehabilitation.
[5] (2000) 31 MVR 131
167 The prosecution made application for a disposal order in relation to certain items seized. That was not opposed by counsel on your behalf and I make the order in the terms sought. You can have a seat.
168 The prosecution also made application for a forfeiture order. Again, counsel who appeared on your behalf did not oppose the making of the order and I make the order in the terms sought.
169 The prosecution also made application for a compensation order. This was not opposed by counsel on your behalf, although Mr Backwell, in essence submitted making the order was effectively ‘hollow’, as it would likely not be paid. I make the order in the terms sought.
170 Any other orders?
171 Now, how did you go with the maths? I am not asking you if you agree with that, I am just wanting you to check the figures, that is all.
172 MR DONAGHY: Yes, Your Honour, I have 9 years, 8 months and 21 days.
173 MR BACKWELL: My instructor gets the same, so we'll go with - - -
174 HER HONOUR: Right. Yes, well that is all right.
175 MR BACKWELL: No, I'm content, Your Honour.
176 HER HONOUR: No, you agree.
177 MR BACKWELL: Yes.
178 HER HONOUR: Well I made all those other orders. Now were there any other orders that needed to be made?
179 MR DONAGHY: No, Your Honour.
180 HER HONOUR: Now, is there anything that's unclear before I leave the Bench, because it is quite a lengthy sentence? So is there anything? No? Everyone is clear.
181 MR BACKWELL: Yes, Your Honour.
182 HER HONOUR: Excellent. Well thank you both very much. All right, Mr Palmer. That - I meant to check, PSD right?
183 MR BACKWELL: Four hundred and three days, yes.
184 HER HONOUR: Yes, up to yesterday. And including - yes, that is fine. Yes, thanks, Mr Palmer, you will have to go out. All right? Your counsel can see you downstairs, all right? Thank you.
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