Director of Public Prosecutions v Palmer
[2018] VCC 2262
•19 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 18-00334
Indictment No. H12189330
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYNE ALBERT PALMER |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 21 and 22 June, 3 August and 19 October 2018 | |
DATE OF SENTENCE: | 19 November 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Palmer | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2262 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of trafficking in a drug of dependence (cannabis) – one charge of trafficking in a drug of dependence (methylamphetamine) – two charges of possession of a firearm whilst being a prohibited person – one uplifted summary charge of possessing cartridge ammunition without a licence
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, s71AC; Firearms Act 1996, s5(1), s24(1); Criminal Procedure Act 2009; Crimes Act 1958, s195; Sentencing Act 1991; Confiscation Act 1997
Cases Cited:Phillips v R [2012] VSCA 140; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Bugmy v R (2013) 87 ALJR 1022; R v Campanella [2004] SASC 99; Munda v Western Australia (2013) 249 CLR 600; Pham v R [2018] VSCA 200; DPP (Cth) v Haidari [2013] VSCA 149; Marrah v R [2014] VSCA 119
Sentence: TES 30 months’ imprisonment, non-parole period of 20 months, fine, forfeiture and disposal orders.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Lee | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms K Ballard | Doogue & George |
HIS HONOUR:
1 Wayne Albert Palmer, on 21 June 2018, you pleaded guilty to the following offences:
CHARGE 1: that you, at Broadmeadows in Victoria, between 17 January 2017 and 28 May 2017, trafficked in a drug of dependence, namely Cannabis L;
CHARGE 2: that you, at Broadmeadows in Victoria, between 22 February 2017 and 28 May 2017, trafficked in a drug of dependence, namely methylamphetamine;
CHARGE 3: that you, at Glenroy in Victoria, on 2 March 2017, had in your possession a firearm, namely a .22 Rimfire calibre bolt-action rifle whilst being a prohibited person;
CHARGE 4: that you, at Glenroy in Victoria, on 16 March 2017, had in your possession a firearm, namely a .22 Long Rifle calibre "Homemade" zipgun, single-shot pistol, whilst being a prohibited person.
2 The maximum penalties for each of the charges pleaded on the Indictment are:
(a)Charges 1 and 2, which involve trafficking in a drug of dependence, are contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981 and carry a maximum penalty of fifteen years’ imprisonment;
(b)Charges 3 and 4, which involve you being a prohibited person possessing a firearm, are contrary to s.5(1) of the Firearms Act 1996, and carry a maximum penalty of 1,200 penalty units or ten years’ imprisonment.
3 Summary Charge 28 was transferred to this Court pursuant to s.145 of the Criminal Procedure Act 2009 and pleads that you, at Craigieburn, on 16 March 2017, did possess cartridges without a licence. On 21 June 2018, you also pleaded guilty to such offence. Such offence is contrary to s.124 of the Firearms Act 1996, and carries a maximum penalty of 40 penalty units.
4 The prosecution also seek the following Ancillary Orders:
(a)Firearm Forfeiture Order pursuant to s.151 of the Firearms Act 1996 in respect of the two firearms and ammunition;
(b)A Disposal Order pursuant to s.77(1) of the Confiscation Act 1997 for the drugs and related paraphernalia;
Details of your offending
5 The prosecution has provided a document headed "Prosecution Opening for Plea Hearing" dated 24 May 2018. Such summary has been marked as an exhibit ("Exhibit 3") and has been accepted by you and your counsel as an appropriate representation of the offending.
6
In the Prosecution Opening there is reference to your co-accused,
Michelle Alma McGann ("McGann"), with whom you resided at 26 Nepean Street, Broadmeadows, over the course of the subject offending. I shall refer to such residence as "The premises".
7
On Indictment No. H12025123, McGann is charged with that she, between
17 January and 28 May 2017, trafficked in a drug of dependence, namely Cannabis L (that is the same offence as Charge 1 on your Indictment). McGann pleaded guilty to such offence on 21 June 2018. McGann, on that day, also pleaded guilty to Summary Charge 16, which was transferred to this Court pursuant to s.145 of the Criminal Procedure Act 2009. Such summary charges involve McGann dealing with property, namely two number plates, suspected of being the proceeds of crime.
8 The important matters contained in the Prosecution Opening relevant to you are:
·You are presently fifty years old, having been born on 11 December 1967. Over the period of the subject offending, you were aged forty-nine years.
·During an operation, code-named Operation Pirate-Wolfe, a police covert operative was engaged to gather evidence in relation to drug and firearms offences being committed at the premises and other locations. During the operation, a covert camera was also utilised to capture both drug and firearms purchases from those premises. The covert operative held himself out as a salesman of soft drinks.
·It is alleged by the prosecution that you were the principal accused in operation Pirate-Wolfe, and that McGann was acting in concert with you in selling cannabis throughout the alleged period. On thirteen occasions, you sold Cannabis L to a police covert operative, as detailed in the transactions below. On two occasions, you sold methylamphetamine to the covert operative. Payment for the drugs was sometimes made by way of cash, other times a combination of cash and a box or boxes of soft drinks, and sometimes solely a box or boxes of soft drink.
Charge 1 on the Indictment – Trafficking in cannabis
9 CCTV footage of the premises was taken over the week between 22 May 2017 and 28 May 2017, during the hours of 7.00 am and 12.00 am. Analysis of such CCTV footage showed that customers would attend at the front door, collect cannabis from entering the front door, or from receiving the cannabis through a window on the right side of the door which was kept open, and then would leave the premises.
10 That you and McGann sold cannabis in the following transactions as depicted in the CCTV footage over the period from the sample one-week period when the CCTV footage was taken:
- Monday, 22 May 2017: 56 customers
- Tuesday, 23 May 2017: 40 customers
- Wednesday, 24 May 2017: 24 customers
- Thursday, 25 May 2017: 34 customers
- Friday, 26 May 2017: 25 customers
- Saturday, 27 May 2017: 21 customers
- Sunday, 28 May 2017: 23 customers
11 The total number of the transactions captured on CCTV footage was 223.
12 This number of customers does not include transactions where cannabis was sold and collected through the window next to the door during the night. The CCTV footage only includes transactions where customers entered the house.
13 Over the period from 17 January 2017 to 28 May 2017, a covert operative attended the premises and the following transactions occurred:
(a)On 17 January 2017, the covert operative purchased 3 grams of cannabis from you and paid $50. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 3.03 grams. On that occasion, the covert operative queried you whether you could sell him methylamphetamine, and you advised the operative that you could, but not on this occasion;
(b)On 30 January 2017, the covert operative purchased 7 grams of cannabis from you and paid $80 and a 24-can box of Schweppes lemonade. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 7.15 grams;
(c)On 20 February 2017, the covert operative purchased 4 grams of cannabis from you, and paid $60 and a 24‑can box of Coca-Cola. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 4.3 grams. On that occasion, you advised the operative that you could sell him methylamphetamine, but not until after a certain time;
(d)On 22 February 2017, the covert operative attended the premises and requested from you, among other things, an ounce of cannabis, which he had to return in an hour to collect, at which time he observed McGann in the lounge room, seated at the coffee table, bagging up cannabis. The covert operative purchased an ounce of cannabis for $250. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 29.10 grams;
(e)On 28 February 2017, the covert operative attended the premises, at which time he observed you retrieve an old pink biscuit tin and hand it to McGann, after which McGann opened the tin. An observation was made of twenty to thirty small plastic snap-lock bags containing what appeared to be cannabis. The covert operative requested to purchase an ounce of cannabis, but was told by McGann that she did not have that much to sell, but would have more later in the day. McGann then gave the covert operative one gram of cannabis for the 30‑pack of Coca-Cola cans that he had given McGann. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 1.0 grams;
(f)The covert operative again attended the premises on 28 February 2017 and purchased an ounce of cannabis from you for $250. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 29.10 grams;
(g)On 16 March 2017, the covert operative attended the premises, and after dealing with some unrelated matters, advised he wished to purchase two ounces of cannabis. It was agreed the covert operative would pay $500 upfront and collect the cannabis on the following day. The following day, the covert operative was supplied with two plastic bags containing approximately one ounce of cannabis in each bag. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 29.70 grams;
(h)On 6 April 2017, the covert operative attended the premises, requesting to purchase from you two ounces of cannabis, after placing a 24‑can box of Schweppes lemonade on the kitchen floor. You initially agreed, then changed your mind and said you could only do one ounce today and could provide one tomorrow. The covert operative agreed to take the ounce and collect the other ounce the following day, and paid you $500 for the two ounces of cannabis. On Friday, 7 April 2017, the covert operative was handed, by you, a zip-lock bag containing cannabis. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 27.8 grams (that purchased on 6 April 2017) and 27.7 grams (that purchased on 7 April 2017);
(i)On 27 April 2017, the covert operative attended the premises and gave you a 24‑can box of Schweppes lemonade and requested to purchase 2 ounces of cannabis. You were given $500 in advance to pay for the cannabis. On 28 April 2017, the covert operative attended the premises, where he was told by you that he could only be supplied an ounce and a quarter of cannabis, which was purchased for $300, with $200 being returned to the covert operative;
(j)On 1 May 2017, the covert operative attended the premises and gave you a 24‑can box of Coca-Cola and requested to purchase one ounce of cannabis. You indicated that would cost $300 and you needed the money upfront, and that the cannabis could be collected the following morning. On 2 May 2017, the covert operative attended the premises, where he was met by you. You told the covert operative that you were sick but had told McGann to give the covert operative the ounce of cannabis, which was undertaken. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 28.20 grams (in respect to the cannabis purchased on 28 April 2017) and 27.5 grams (in respect of the cannabis purchased 2 May 2017).
Charge 2 on the Indictment – Trafficking in Methylamphetamine
14 On Wednesday, 22 February 2017, a covert operative attended the premises and observed you with two unidentified males. The operative requested one gram of methylamphetamine and you told him to return in five minutes, at which time you received $350, together with a 24-pack of Schweppes lemonade cans for one gram of methylamphetamine. When such material was examined by the Victoria Police Forensic Services Centre, materials were found to be methylamphetamine weighing 1.0 grams.
15 On Tuesday, 28 February 2017, the covert operative requested to purchase one gram of methylamphetamine from you, and ultimately you sold him the methylamphetamine for the sum of $300 for one gram. When such material was examined by the Victoria Police Forensic Services, such substance was found to be methylamphetamine weighing 0.70 grams.
Charge 3 on the Indictment – Possession of a Firearm (bolt action rifle)
16 On Thursday, 2 March 2017, you and the covert operative had a conversation about the operative purchasing a firearm. At that time you instructed the operative to take you for a drive to a house, which ultimately led to 51 View Road, Glenroy, when you got out of the vehicle for a short time. On your return, you directed the operative to drive to the rear of Cash Converters in Glenroy, where you got out of the vehicle and spoke to another person – Andrew Larking, who ultimately gave you a drawstring bag containing a black .22-calibre bolt action rifle. The operative paid you $1,000 cash for the rifle. Later, a firearms analyst at the Victoria Police Forensic Services Centre Ballistics Unit examined such firearm purchased on 2 March 2017 and found that it was not operable.
Charge 4 on the Indictment – Possession of a Firearm (single shot pistol)
17 On Thursday, 16 March 2017, the covert operative attended the premises and you were told that the previous firearm purchased from you did not work. You told the operative that "We didn’t look at it did we?" and that "I can get you another one". Following a car drive, where you attended other premises, after which there was a later meeting where the operative noticed that the other person unzipped a small black bag containing a homemade firearm with a separate screw chamber.
18 The other person showed the operative how to operate the firearm, after which the operative took possession of the firearm and handed $400 cash to the other person, who said that the money should be given to you.
19 Later, the firearms analyst attached to the Victorian Police Forensic Services Centre examined the firearm purchased on 16 March 2017 and found it to be a non-operating firearm.
Summary Charge 28 – possession of ammunition
20 On Friday, 17 March 2017, the covert operative and you attended Sorrento Street, Broadmeadows, where you entered the premises and then later drove to the home of your nephew, Ben Palmer, where you went inside those premises. On returning to the vehicle, you had with you a small plastic bag containing twelve .22 ammunition rounds. When queried by the covert operative as to the cost of the ammunition, you replied "I don’t know how much he wanted for them, don’t worry about it, you look after me with the drinks." A short time later the covert operative gave you a 24-can box of Schweppes lemonade.
Execution of search warrants
21
On Monday, 17 July 2017, search warrants were executed at the premises, where McGann was located and arrested in relation to trafficking drugs of dependence. There was a small quantity of cannabis and a number of
snap-lock bags containing quantities of cannabis.
Your arrest and detention
22 You were arrested on 7 June 2017, in relation to an unrelated summary matter. On 19 October 2017 at the Broadmeadows Magistrates’ Court, you pleaded guilty to a number of charges and breaches of a community correction order, and was sentenced to six months’ imprisonment, with 134 days reckoned as time served. Such sentence ended on 5 December 2017.
23 When serving pre-sentence detention in relation to the summary matters, a Record of Interview was undertaken on 2 August 2017, at which time you were then charged and bailed. You were remanded on the subject matters at the filing hearing on 9 August 2017. As at today’s date, your pre-sentence detention is agreed at 349 days not including today.
Your criminal record
24 Your criminal record, dated 24 May 2018, was tendered (Exhibit 1). Such record is extensive, commencing in 1986 and continuing to the present. There are a number of offences involving theft, burglary, theft of a motor vehicle, going equipped to steal/cheat and handling or receiving or retaining stolen goods.
25 There are also a variety of offences involving drugs, particularly, the use, possession and cultivation of cannabis and, to a lesser extent, the possession and use of amphetamine and methylamphetamine. You have been convicted of trafficking cannabis on the following occasions:
(a)On 12 September 1988, at the Broadmeadows Magistrates’ Court, when you were convicted of two charges of trafficking cannabis and sentenced to four months on each charge, to be served concurrently, with such sentence suspended for 12 months;
(b)On 8 December 1994, you were convicted of trafficking cannabis and sentenced to a period of three months’ imprisonment, which was also suspended under the then s.27 of the Sentencing Act 1991;
(c)On 20 January 1999, you were convicted of trafficking cannabis and sentenced to six months’ imprisonment, to be served concurrently with other sentences and three months of that sentence was suspended pursuant to the then s.27 of the Sentencing Act.
26 I also note the following convictions:
(a) On 24 January 1989, you were convicted of possessing a pistol or imitation thereof without a licence, together with other offences on that date. Furthermore, you were found guilty of breaching an earlier suspended sentence which seemingly was restored to an effective term of imprisonment of six months for all of the offending;
(b) On 16 January 2008, at the Broadmeadows Magistrates’ Court, you were found guilty of possessing a prohibited weapon without exemption or approval and also possessing an unregistered firearm. You were also convicted of theft and of dealing property suspected of being the proceeds of crime. You were sentenced to an aggregate period of three months’ imprisonment which was wholly suspended under the then s.27 of the Sentencing Act 1991.
27 In particular, I refer to your criminal record running from 2 April 2004 to date:
(a) On 2 April 2004, at Broadmeadows Magistrates’ Court, you were convicted of the offences of burglary and theft from a shop and sentenced to an aggregate period of four months’ imprisonment to be served by way of an Intensive Correction Order;
(b) On 18 April 2006, at Broadmeadows Magistrates’ Court, it was found proven that you failed to comply with the Intensive Correction Order made on 2 April 2004, with the result that the earlier order was confirmed;
(c) On 5 September 2006, you were convicted of possessing amphetamine, possessing cannabis and using amphetamine, and fined an aggregate sum of $400;
(d) On 20 July 2007, at Broadmeadows Magistrates’ Court, you were convicted of handling, receiving and retaining stolen goods, and sentenced to a Community-Based Order for 12 months, which contained the core conditions, together with a special condition that you perform 125 hours of unpaid community work over six months;
(e) On 16 January 2008, at Broadmeadows Magistrates’ Court, you were convicted of theft, dealing with property suspected to be the proceeds of crime, and the possession of a prohibited weapon without exemption or approval (already referred to) and sentenced to an aggregate period of three months’ imprisonment, wholly suspended for an operational period of nine months pursuant to the then s.27 of the Sentencing Act 1991;
(f) On 20 January 2009, at the Broadmeadows Magistrates’ Court, it was proven that you failed to comply with the Community-Based Order made on 20 July 2007 and you were convicted of handling, receiving and retaining stolen goods and fined $500;
(g) On 11 January 2011, you were convicted of burglary and theft, and sentenced to an aggregate period of six months’ imprisonment, to be served by way of an Intensive Correction Order;
(h) On 18 June 2014, at the Sunshine Magistrates’ Court, you were convicted of offences of burglary, committing an indictable offence whilst on bail, going equipped to steal/cheat, cultivating narcotic plants (cannabis) and sentenced to a Community-Correction Order for a period of 12 months. Such Order commenced on 18 June 2014 and beyond the core conditions, also had special conditions involving assessment and treatment for drug abuse or dependency, medical assessment and treatment as directed, offending behaviour programs as directed, and any other treatment or rehabilitation as directed;
(i) On 27 May 2015, at Broadmeadows Magistrates’ Court, you were convicted of the offences of burglary and going equipped to steal, and sentenced to a Community-Correction Order for a period of 12 months, commencing on 27 May 2015. Beyond the core condition, it was ordered that you be supervised by the Secretary, and for you to participate in the services specified in a Justice Plan;
(j) On 6 October 2015, at Broadmeadows Magistrates’ Court, it was found proven that you had contravened the Community Corrections Order made on 18 June 2014 in respect of the offences of burglary, going equipped to steal, theft, committing an indictable offence whilst on bail, and cultivating a narcotic plant. You were sentenced to a further Community Corrections Order for a period of nine months, commencing on 6 October 2015. Beyond the core conditions, there were further conditions involving supervision by the Secretary and for you to participate in the services specified in your Justice Plan;
(k) On 1 July 2016, at Broadmeadows Magistrates’ Court, you were convicted of cultivating narcotic plants (cannabis), possessing cannabis, possessing methylamphetamine, handling, receiving, and retaining stolen goods, and dealing with property suspected to be proceeds of crime, and sentenced to an aggregate period of two months’ imprisonment, with it being declared that as at the time of that Order, you had served 59 days in custody by way of pre-sentence detention;
(l) On 15 December 2016, you were convicted of possessing cannabis and fined $500;
(m)
On 30 January 2017, at Broadmeadows Magistrates’ Court, it was proven that you contravened the Community Corrections Order made on
6 October 2015. In relation to the offences the subject of the Order made on 6 October 2015, together with the offence of going equipped to steal and burglary, you were sentenced to a further Community-Correction Order for 12 months, commencing on 30 January 2017. Pursuant to that Order, there were special conditions that you participate in the services specified in your Justice Plan, undertake treatment and rehabilitation for drug abuse or dependency, and be under supervision of the Secretary.
28
Of course, at the time that it was proven that you had breached the Community Corrections Order made on 6 October 2015 and the imposition of a further Community Corrections Order running from 30 January 2017 was in the midst of your subject offending, and a flagrant breach of that Order made on
30 January 2017.
29 Furthermore, as I have already recorded, on 19 October 2017, at the Broadmeadows Magistrates’ Court, you apparently pleaded guilty to a number of charges involving breaches of a Community Corrections Order and were sentenced to six months’ imprisonment (with 134 days reckoned as time served), with such sentence ending on 5 December 2017.
30 Both the Orders made for Community Corrections Orders on 6 October 2015 and 30 January 2017 involved a condition that you were to participate in the services specified in your Justice Plan.
Your personal circumstances, educational and employment background
31 Your counsel tendered the following material:
(a) A document headed "Defence Submissions on Plea" (Exhibit A). Furthermore, a document headed "Further Defence Submissions on Plea" was also relied on by your counsel but not tendered. Such further submissions will form part of Exhibit “A”;
(b)
The report of the psychologist, Dr M Barth, dated 6 June 2018, and the psychological report from the Department of Human Services prepared and signed by the psychologist, Mr John Phung, on 28 April 2015
(Exhibit B);
(c) A letter from you dated 20 June 2018 (Exhibit C). In that letter, you state, among other things, that during your period on remand – which has been the longest period for which you have been in custody – you have come to learn a "Few home truths". In particular, you refer to how you believe that your period in remand has affected your relationship with your son, Joshua, and that prior to being incarcerated, you were the main "Carer" for him in assisting his schizophrenia. That role would now fall on his girlfriend, which you believe, no doubt, would weigh on their relationship.
Furthermore, you assert you have come to realise that gaol is not "The place I want to be spending this or any other further periods of my life". To that end, you note that you have been undergoing various courses in prison through the Caraniche organisation, to assist you to overcome your drug habit and open, what you refer to, as a new chapter in your life. I note that in your letter you also take responsibility for your current situation and that you pleaded guilty in relation to the offending at the earliest possible time. I also note your belief that, given your attitude to change and your determination to overcome your drug habit, you believe that you have a "Chance this time to do something different" on release from prison;
(d) Two letters from Caraniche Services – the first dated 11 October 2017 signed by the clinician, Ms Alessi Fabbian, and the second dated 19 June 2018 signed by the psychologist, Mr K Nickless (Exhibit D). These letters detail your involvement in the drug and alcohol programs being offered by Caraniche Pty Ltd at Hopkins Correctional Centre under contract to Justice Health.
The letters set out details of the various courses you have undertaken in relation to drug abuse and harm reduction;
(e) Urine analysis test reports dated 16 November 2017 (in respect of testing on 13 November 2017); 30 November 2017 (in respect of testing on 24 November 2017); 4 December 2017 (in respect of testing on 28 November 2017); 20 June 2018 (in respect of testing on 25 January 2018) and again dated 20 June 2018 (in respect of testing on 21 February 2018) (Exhibit E). Your counsel referred to the analysis in respect of testing on 23 February 2018, which returned a positive result in respect of the drug Buprenorphine. I was informed by your counsel that this prescription drug was given to you by another prisoner to assist with sleep. On her instructions and, indeed, as you have reported to others, you have taken no illicit substances during your period on remand, and all other urine tests are negative;
(f) Various certificates obtained by you since being on remand:
§ 24-hour "Managing Ice Addiction" drug treatment plan on 27 October 2017
§ Responsible Service of Alcohol Program undertaken on 25 October 2017
§ Prison Legal Education & Assistance Family Law Project undertaken on 11 September 2017
§ Twelve-hour AOD (Alcohol and Drugs) dated 5 September 2017
§ Coping with Change Program undertaken on 30 June 2017.
(Exhibit F).
32 Furthermore, over the course of the plea hearings, the following material was obtained by direction from the Court, on the urging of your counsel:
(a) A document referred to as a "Client Overview Report" dated 13 July 2018, authored by the Disability Justice Coordinator, North Division, Ms Dragana Johnstone, together with the authorised signatory, Team Leader Disability Justice, North Division, Mr D Pearce;
(b) A document referred to as a "Justice Plan" dated 13 July 2018, again signed by Ms Dragana Johnstone and authorised by Mr D Pearce;
(c) A document referred to as an "Extended Pre-Sentence Assessment – Outcome Report" prepared by the Department of Justice and Regulation dated 15 October 2018 and signed by the Court Assessment and Prosecutions Officer, Mr Wayne Lindsay, and the Supervisor, Court Assessment and Prosecutions, Ms Alina Toumbakis, both situated at the Broadmeadows Community Correctional Services.
33 I have read all such documentation.
34 Furthermore, on the most recent day that the plea was heard, your counsel also supplied a report from a prison officer dealing with you in prison which spoke of your attitude at prison – that is, you are working and doing well and have been placed in a supervisory position, supervising four or five other prisoners.
35 Based, in part, on such material and, in part, on the various submissions made by your counsel, I note the following:
· You are the third youngest of seven children born to Janice and Kenny Palmer (both of whom are now deceased) and was raised predominantly in the Broadmeadows area. At the age of three, your parents separated, predominantly due to your father’s excessive drinking. In this respect, you note that although both your parents drank heavily, you describe your father as having been an alcoholic.
· After the separation, your mother suffered a nervous breakdown, causing her to be hospitalised for treatment for approximately three years. During this period, you and your siblings were placed in Alambi Reception Centre, for which you have very little memory. At about the age of six years, you returned to your mother’s care, although she continued to drink and abuse prescription medication. You have noted your mother was very "hard" on you and indeed, you told Dr Barth that she resorted to corporal punishment to "keep me in line".
· You accept that over this period, you became very impulsive, reckless and displayed aggressive behaviour and was generally more difficult to manage.
· At about the age of eleven, you were placed in the Baltara Boys’ Home, followed by various placements on and off in a hostel and subsequently, Turana, when you were 16 years old due to behavioural issues and lack of positive care from your parents. Your counsel submitted that the residential facilities at Alambi, Turana, and Baltara constituted Case 30 in the Royal Commission Report investigating institutional child abuse.
· You continued to reside with your mother during your teenage years, save for those periods that you were accommodated in the various residential facilities already referred to due to your behavioural issues.
· When you were about 13 years old, your mother re-partnered and apparently her new partner was similar to your father, in that he was a drinker and was verbally abusive. According to Dr Barth, you "Didn’t get along" with your mother’s new partner, although I do note that in the Client Overview Report, you commented that your relationship with your stepfather was "Unremarkable", with neither you nor any of your siblings having difficulties accepting him.
· You do report that at the time of your mother’s remarriage, she gave up drinking. You reported that had a positive effect on your relationship with her.
· Over your teenage years, you report that your mother "Kicked me out" of the home on several occasions but you would typically return after a short period, and lived with your mother until you were 18 years old.
· Apparently your mother had a substantial win from Tattslotto which assisted in her obtaining two properties. Furthermore, she allowed you, when in your early twenties, to purchase one of the two houses, that being the subject premises. You report that you paid for this home through regular and ongoing payments directly to your mother until she advised you that no further payments were needed to be made. Your mother moved into the other house purchased with the windfall, in Gladstone Park. I note from other sources that it would appear that the title has not been transferred to you and this is a cause of concern between you and other members of your family.
· Your father died approximately fifteen years ago from a heart attack, whereas your mother died sixteen years ago from lung disease. You largely have no contact with your siblings, and as noted, that there is conflict between them with regards to the "inheritance" from your mother, and you believe they are "embarrassed" by your criminal record. I was informed by your counsel that one of your sisters and a worker from the Department of Health and Human Services were in Court over some of the plea hearing days supporting you.
· You attended Broadmeadows Primary School and there was noted difficulties with reading, writing, spelling and mathematics from the outset, and schoolwork was performed with much support from the teaching staff. At the age of 11, when you were sent to Baltara Youth Correctional Centre, you recall that your stay at Baltara was "very rough", with you getting into fights and having no friends.
· You began your secondary schooling at Broadmeadows High School but struggled with the academic program, and at the recommendation of teaching staff, you transferred to Broadmeadows West Technical College, where you completed Forms 2 and 3, but failing in your final year, and at all times experiencing behavioural and academic difficulties. In particular, although you realised that your reading and writing skills were very poor, you left school and it has only been in recent years that your literacy skills have improved to a moderate degree.
· Your employment history has been piecemeal, mainly working in building labouring jobs, factories, repair work, and building fences. All such positions were short term and obtained through an employment agency or through the Anglicare Welfare Organisation. You recall that the longest period of employment undertaken by you was approximately 12 months when working for a fence-making business.
· You informed Dr Barth that your drug use and limited intellectual functioning have impacted on your ability to sustain gainful employment and you have been a long-term recipient of Centrelink benefits.
· When aged twenty-one, you commenced a relationship with Anne Marie Newton, who originated from Tasmania. At the age of twenty-four, you and Ms Newton had a child, Joshua, and moved to Glenroy, and that relationship lasted for about eight years. It came to an end, resulting in custody battles in relation to Joshua. Ultimately, Ms Newton left for Tasmania with a new boyfriend and you had sole custody of Joshua.
· Janice Palmer (your mother) and McGann, your co-accused in this offending, who is also your first cousin, assisted with the care and occasional babysitting of Joshua. At the age of eight years, Joshua was moved into the care of the Department of Human Services, where he remained until he reached eighteen years of age.
· On the death of your mother, you were twenty-nine years’ old and although she left a will, there was no mention made in it of the ownership or the entitlement of the premises for which you had been making payments to your mother; however, you have continued to live at the house rent free with your cousin, McGann. This is undertaken in full knowledge of your siblings and, in particular, your eldest sister, Donna, who is the executor of your mother’s will. Apparently, you desire to have the house transferred into your name, but are opposed to having to pay your sister legal fees incurred in order for the process to be completed.
· In 1992, when riding as a passenger on a friend’s motorbike, you were involved in a direct collision with a car, and at the time of this accident, you were not wearing a helmet. You suffered a cervical spine fracture and was managed with a spinal fusion at the Royal Melbourne Hospital. You informed Dr Barth that as far as you were concerned you made a full recovery – although it appears there was no exploration of any neurological impairment or acquired brain injury following such injury – and you received approximately $82,000 from the Transport Accident Commission by way of compensation.
· VCAT appointed the State Trustees to manage your finances, largely due to your substance abuse problems and behavioural issues. Such management gives rise to considerable frustration on your part and you hope to challenge this arrangement in the near future. Your counsel informed the Court that, on your instructions, you had been receiving $120 per week, together with your Centrelink benefits. On release from prison, you have instructed your counsel that you wanted to live with your sister in Oak Park and move out of Broadmeadows – furthermore, you hope that you will receive more money from your Trustees, who manage your affairs.
· You were also shot in the hip approximately four years ago, describing the incident involving a man coming to your front door and shooting you. Apparently you had had previous conflict with this man which had escalated over time. That injury continues to give you some ongoing pain.
· You have stated that alcohol has never been a particular issue for you but you have used marijuana and amphetamine since the age of fifteen and more recently, have used methylamphetamine – that is, ice, in addition to heavy marijuana use. You informed Dr Barth that cannabis has been used daily throughout your life, with periods of remission, only when in custody. Your use of ice also rapidly escalated to encompass daily use. In particular, you have informed Dr Barth, and indeed consistent with the various urine testing documentation, that you have not used drugs since being placed on remand.
Your intellectual disability
36 I refer to the Psychological Assessment Report from the Department of Human Services dated 1 April 2015 (part of Exhibit “B”). That document records that you were referred by a magistrate for a determination of your intellectual disability and a Justice Plan under the Sentencing Act 1991 (if appropriate) in the context that there had been a finding of guilt in relation to charges of theft, burglary, and going equipped to steal/cheat, and the next hearing was to be on 27 May 2015 for sentence. Indeed, I have already referred to such proceeding in the criminal record.
37 After a series of tests, the psychologist, John Phung, determined that your functioning is within the mild intellectual disability to borderline range of cognitive functioning. It was accepted that the results established the existence of a significant cognitive deficit and met the criteria required to establish the existence of an intellectual disability as set out in the Disability Act 2006.
38 Following such finding, a Justice Plan was devised, and as I have already recorded, the magistrate, on 27 May 2015, convicted you of the offences and sentenced you to a community corrections order with a variety of conditions, but in particular, for you to participate in the services specified in that Justice Plan.
39
I also refer to the document referred to as a "Client Overview Report" dated
13 July 2018. The author states in part under the heading "Level of Disability":
"Mr Palmer was found to have a disability as defined by the Disability Act 2006 in April 2015 …
Mr Palmer’s communication skills are well developed and he is able to engage in discussion about a range of issues and events, including the ability to describe emotions engendered by people, such as the impact of fatherhood, complex relationship matters, and legal outcomes. He is responsive to information important to, or of interest to him and he has demonstrated the ability to concentrate on the task at hand. When unsure of what has been communicated, he asks appropriate questions and benefits from having information repeated or written in order to confirm that he is clear of what is expected of him.
The writer has observed that Mr Palmer has limited problem-solving abilities, which often leads to unrealistic solutions. His literacy skills, although basic, were reportedly self-taught and enabled him to read short articles in the daily newspaper. Mr Palmer’s spelling is poor and he states that he struggles with writing anything more than his name and address. Mathematical skills are better developed and enable him to shop and to know what change to expect, to save for a purpose, and to manage his own finances. He reports significant difficulty remembering information and as such requires reminders to attend appointments, which are provided mostly by his cousin Ms Michelle McGann with whom he lives.
Mr Palmer accesses the community independently using a motorised bicycle, preferring it to public transport for the convenience it provides. He is currently preparing for a full motorbike licence and is capable of reading the required material.
Mr Palmer has lived independently for a number of years with additional supports from Ms McGann. He has skills in maintaining personal hygiene, preparing basic meals such as sandwiches, eggs, noodles and spaghetti, and has responsibility for the maintenance of his residential property.
Mr Palmer has always managed his finances and has paid a significant amount of money to his mother towards the purchase of the house he currently lives in."
40 The author also states under the heading "Contact with the Department of Health and Human Services":
"Mr Palmer was first referred to Disability Services in April 2015 following a request from the court for the preparation of a Justice Plan. A further request for the preparation of a Justice Plan was by the Broadmeadows Magistrates’ Court on 11 October 2016.
From the time of the initial allocation as Mr Palmer’s Disability Justice case manager, efforts have focused primarily on attempting to motivate
Mr Palmer to adhere to the recommendations of his Justice Plan and to secure the title to his home in order to enable his goal of moving from Broadmeadows. Mr Palmer remains convinced that his circumstances would change and his cycle of reoffending cease, if he obtained rightful ownership to his home and through its sale, relocated to country or coastal Victoria.
While there was a demonstrated commitment to attending regularly for meetings with his case manager for a brief period of allocation, the contact remained sporadic thereafter and for the large part, Mr Palmer proved unable to be reached either by telephone or by mail. Attempts to reach Mr Palmer through his cousin Ms McGann was similarly largely unsuccessful.
Mr Palmer has demonstrated some capacity to follow through with tasks where it is apparently a priority for him. For example, he sought the case manager’s assistance in locating a legal firm that specialised in obtaining compensation for victims of crime, cooperated with a case manager during that period and displayed initiative in the process to achieving an outcome.
However, his motivation to activate the steps necessary to elicit change in other problematic areas of his life has been found wanting. It is the writer’s opinion that his general inertia is directly related to the abuse of illicit substances, particularly cannabis. He has identified the need for detoxification and rehabilitation during previous meetings with the writer."
41
Under the heading "Current Circumstances", the author of such report,
Ms Dragana Johnstone), met with you at that Karreenga Prison on
13 September 2017 and again on 30 April 2018 at the Hopkins Correctional Centre. On both occasions, you reported having achieved a lengthy period of abstinence from drugs. In particular, the author of the report goes on to state:
"As a result of a recommendation in Mr Palmer’s previous Justice Plans, he reported having had some limited exposure to drug counselling but his retention of material covered proved poor. Mr Palmer has previously indicated to the writer that counselling has limited value for him and that undergoing drug detoxification and rehabilitation would likely be more beneficial.
More recently, in a meeting with Palmer at the Hopkins Correctional Centre on 30/4/2018, he communicated to the writer his belief that an Order with conditions including random drug testing would enable him to prove to himself and to all significant others that he can remain drug-free. During that meeting, Mr Palmer reiterated the belief that relocating to rural Victoria would benefit him by keeping him away from the influences that have contributed to his criminal behaviour.
Furthermore, while previous attempts to address substance abuse have been unsuccessful for Mr Palmer, the writer is guided by his consistent expression of commitment to overcome this most challenging aspect of his life to date. Mr Palmer’s renewed determination to end his significant duration of drug abuse needs to be viewed in the context of the recent extended period of time served. Disability Justice case coordination is supportive of a new recommendation for Mr Palmer to address this criminogenic need.
Finally, it is felt that substance abuse and the associated violent nature of Mr Palmer’s offending would benefit from an assessment by a specialist forensic service for offenders with intellectual disabilities, such as the Disability Forensic Assessment and Treatment Service (DFATS). The purpose of this assessment would be to determine his offence-specific treatment needs, which could include programs provided by DFATS such as the Social Problem Solving and Offence Related Thinking (SPORT) or the Violence Intervention Program. He has expressed a willingness to participate in such an assessment."
42 Consistent with these comments, Ms Dragana Johnstone has prepared a Justice Plan dated 13 July 2018, wherein it recommended that you participate in assessment with DFATS to assist in identifying whether you are a suitable candidate for treatment programs and the like.
The evidence of Dr Barth
43
I refer to the psychological assessment undertaken by the psychologist,
Dr M Barth, on 24 May 2018, which occurred via video link to the Hopkins Correctional Centre and lasted for about 90 minutes. According to Dr Barth, he carried out a comprehensive evaluation of your mental status, including your mood, your thought processes, your personality functioning, and your degree of insight. Furthermore, he reviewed important aspects of your personal history, with particular attention to your mental health, substance abuse, and behavioural adjustment.
44 During the course of such interview, Dr Barth notes that you were clear in your intention to plead guilty to the current charges, and according to Dr Barth you expressed remorse for your offending and recorded you as saying:
"Selling drugs is not right. It is the wrong thing to do. It is a bad thing. I have made so many bad decisions with my life. I don’t want to live that life anymore. I want help".
45 Dr Barth noted that your presentation during the assessment was characterised by depressive and anxiety-related symptoms of moderate severity. In particular, Dr Barth stated:
"More specifically, Mr Palmer’s moods were characterised by a sense of hopelessness about his future and a deep sense of shame regarding his offending behaviour and his criminal history more generally. Mr Palmer also described feeling anxious and tense, primarily due to ruminating about his future. Superimposed on these symptoms is Mr Palmer’s poor self-esteem and intense feelings of worthlessness.
As noted earlier, Mr Palmer has experienced significant issues with his self-esteem since childhood, largely due to feelings of shame regarding his intellectual difficulties and his behavioural problems. He feels inadequate regarding his inability to adjust to a positive life in the community. He told me that he feels ‘Like I don’t fit in (sic) society’. Hence, Mr Palmer continues to present as a psychologically vulnerable person. Presently, Mr Palmer’s mental health has also been impacted by the stress of his ongoing legal matters.
Notwithstanding these symptoms, Mr Palmer denied any abnormalities in his appetite or sleep patterns and said that his moods had stabilised to a degree due to his period of abstinence from drug use. In short,
Mr Palmer’s symptoms continue to cause him a moderate degree of distress. Presently, they are not sufficiently severe to warrant the diagnosis of any mood disorder, anxiety disorder, or adjustment disorder. Nevertheless, he requires psychological intervention and support to prevent any potential deterioration in his moods, particularly in the immediate aftermath of sentencing."
46 Dr Barth noted that you have been diagnosed with a "Mild intellectual disability" and makes a comment that such a disability can adversely affect the level of judgement, decision-making ability and social reasoning of an individual. He further noted that notwithstanding your low intellectual functioning, you were lucid throughout the interview and was oriented to time, person and place, and there were no indications of any form of thought disorder or psychosis. However, he accepted that you presented as a very unsophisticated and simplistic thinker, with limited abstract reasoning skills.
47 Dr Barth also notes that your interpersonal behavioural adjustment has been profoundly disturbed since your childhood years, and that you have displayed oppositional and aggressive behaviour from a young age, with your early experiences of neglect and abandonment from your parents creating a growing resentment towards the world around you and substantial difficulties developing healthy emotional attachment with others. In particular, Dr Barth considers that you have engaged in various "Acting-out behaviours" (Predominantly heavy drug abuse and impulsive behaviour) to mask your own feelings of sadness, worthlessness, and sense of emptiness in your life.
48 Dr Barth notes:
"Mr Palmer’s interpersonal and behavioural adjustment, and the associated personality traits, are deeply entrenched and go well beyond normal tendencies. They have resulted in considerable disturbances in every area of his life and have been stable throughout his lifespan. I am of the opinion that these traits are sufficiently severe enough to warrant a diagnosis of ‘Antisocial Personality Disorder’ by DSM-5 criteria."
49 Dr Barth also considered that given your past abuse of drugs from a young age, such drug use was sufficiently severe for a diagnosis of "Cannabis-Use Disorder" and "Stimulant-Use Disorder". He notes that provided your current abstinence is objectively verified, these diagnoses would be noted as "In early remission – in a controlled environment".
50 Dr Barth ultimately concludes that your behavioural problems and intellectual disability have had a profound impact on every area of your life. The complexity of your needs means that comprehensive integrated treatment support is urgently warranted if your risk of reoffending is to be reduced. Without such treatment support he is guarded about your rehabilitative prospects in the community, and considers that the following components are essential for your hopeful rehabilitation:
– treatment from DFATS;
– substance-abuse treatment – involving a highly intensive and closely structured supervised detoxification program with regular urine screen testing to enforce prolonged absences;
– psychological treatment involving Cognitive Behavioural Therapy focusing on practical coping strategies for your depressive and anxiety-related symptoms.
51 Dr Barth was of the opinion that self-directed or self-initiated treatment approaches would have virtually no prospect of success in addressing your psychological behaviour and drug rehabilitation needs.
Mitigating circumstances relied on by your counsel
52 It was submitted by your counsel that the following matters are relevant in mitigation of sentence:
(a)That your pleas of guilty in relation to the substantive offences were, in the circumstances, at the earliest possible time and had the utilitarian effect of saving the Court the time and cost of what would have been a lengthy trial. Reference was made to the well-known case of Phillips v R [2012] VSCA 140 at Paragraphs 38-39. Your counsel submitted that entering pleas of guilty demonstrated your acceptance of responsibility for your conduct and has facilitated the course of justice;
(b)That the pleas of guilty and, indeed, the comments made by you to
Dr Barth in relation to remorse, can be viewed as genuine expressions of remorse. Furthermore, it was submitted that you have demonstrated a willingness to reform and “invest” in your own rehabilitation through your participation in programs while in custody and your desire to overcome your drug habit;
(c)You have had a disadvantaged childhood, being exposed to an unstable family life, and being placed in and out of institutions from a very young age and throughout your teenage years, during which time you experienced physical abuse and observed physical abuse and sexual abuse of others. It was submitted on your behalf that in some ways explains and contributes to your criminal behaviour over the years. In all of the circumstances, your moral culpability has been reduced because of your childhood experiences and this should be reflected in the sentencing disposition. Reference was made to Bugmy v R (2013) 87 ALJR 1022.
(d)Furthermore, moral culpability should be reduced given that it has been established, pursuant to the Disability Act 2006, that your functioning is within the mild to borderline range of cognitive functioning and has been described as a "Significant cognitive deficit". Based on what Dr Barth has described as the consequences of such deficit, it should, in turn, reduce your moral culpability in relation to your criminal activities, which in turn, should impact on an appropriate sentence;
(e)Again, based on the evidence from Dr Barth as to the consequences of your intellectual ability, the so-called Limb 2 in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269, is enlivened. Limb 2 reads:
"The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served."
The condition referred to is impaired mental functioning which, in your case, is permanent;
(f)In relation to the gun offences, your counsel referred the Court to various statements made by covert operatives at pp.133, 138, and 141 of the depositions, and submitted that the substance of those statements, although perhaps not amounting to an entrapment, was a "Prompting" by the covert agent in relation to a discussion to supply firearms.
Counsel referred to the South Australian Full Court decision of
R v Campanella[2004] SASC 99 and, in particular, to the leading judgment of Mullighan JA and, in particular, to Paragraph 68 where at he stated:
"I think these cases establish that where the police create the offence and incite or encourage a susceptible person who would not otherwise commit the offence, a significant reduction in sentence is required. Entrapment with those features does not require pressure to be applied by the police. Pressure to commit an offence will often be a factor in the sentencing process even when there is no involvement of the police. However, if the police entrap an offender in the sense I have mentioned and also apply pressure to him to commit the offence, further reduction in the sentence may be justified. The three factors of entrapment which I have mentioned were all present. The police created the offence and, through Charlie, incited or encouraged the appellant to become involved. He was susceptible to the incitement or encouragement, and would not have committed the offence but for the conduct of the police."
In all the circumstances, it was submitted that this type of principle should be applied to the circumstances of this matter, resulting in a reduction of any sentence for the gun offences.
53 Ultimately, your counsel, although accepting that you have an extensive criminal history involving in part, convictions involving the trafficking of cannabis and gun offences, submits that your early plea of guilty to the substantive charges, your demonstrated remorse and your established intellectual disability must be reckoned in your favour.
54 Furthermore, it was submitted with some force that on the basis of the evidence from Dr Barth in particular, you require intensive support to reintegrate into the community and further your rehabilitation in overcoming your longstanding drug habit.
55 Your counsel acknowledged that there are continued "Challenges in the years ahead" as you deal with entrenched drug addiction and cognitive limitations. She noted that the Court can take "Some comfort from the fact" that you are demonstrating a willingness to reform given your activities whilst being on remand.
56 In all the circumstances, notwithstanding your prior history in relation to breached suspended sentences, intensive correction orders, and community correction orders, it was submitted that given your clear intention to overcome your drug habit, the Court was urged to sentence you to a "Suitably crafted" community correction order, combined with the Justice Plan dated 13 July 2018 devised by Ms Dragana Johnstone.
57 For the sake of completeness, the Court ordered that you be assessed for a community corrections order and in particular, what has already been referred to as an "Extended Pre-Sentence Assessment – Outcome Report". As already recorded, that report is dated 15 October 2018. In particular, I refer to the following matters contained in such report:
· Under the heading "Offender Account of Current Offence", you informed the Corrections officer that your recollection of the offences was that you were "Entrapped by Victoria Police" and recall undercover officers attending your residence over a period of time purchasing drugs, a weapon belonging to yourself, and other trafficking equipment and cash.
· Under the headings "Corrections Victoria Criminal History" and "Compliance to Community Correction Orders", it is stated, as I have recorded, that your criminal history commenced in 1986 and over the years, that you have appeared before the Magistrates’ Court on 40 further occasions. The writer also notes that you were first placed on a Victorian community-based disposition in 2002, when you did complete an intensive corrections order. However, subsequently you have been placed on eight orders from 2004 to 2017, of which there has been contravention of court breaches.
· You were assessed as high risk of reoffending using the level of service – risk need responsivity risk assessment tool. This tool assesses an individual’s risk of reoffending in the community based on dynamic risk factors.
· It was noted during the course of the interview, you presented "with little remorse" and continually made reference to being “‘entrapped’ by police". It was also noted that you have little or no protective factors to focus on to enhance your ability to reduce the likelihood of recidivism, although noted that you have stable accommodation and on acquiring access to state fund moneys upon release, could represent a positive protective factor.
58 Ultimately, the author of such report – Wayne Lindsay (Court Assessment and Prosecutions Officer, Broadmeadows Community Correctional Services) and Ms Elena Toumbakis (Supervisor, Court Assessment and Prosecutions, Broadmeadows Community Correctional Services) stated:
"In view of Mr Palmer’s criminal history and previous poor compliance to community based dispositions there is a high degree of uncertainty in
Mr Palmer’s capacity to sustain contact, remain compliant with a treatment regime and abstain from illicit substances. Accordingly, although not being found unsuitable, Mr Palmer is assessed as suitable but with significant reservations for a community correction order."
Response of the Prosecution
59 I was informed by counsel for the Prosecution that his instructions were that given the nature of the offending, the prior criminal history, and the large number of breaches of community-based orders, immediate incarceration was the only appropriate sentence.
60 In relation to the submissions made by your counsel in relation to the gun offences, counsel for the Prosecution submitted that there was no duress or coercion and there was time for you to withdraw from the transaction if you had so desired. In this context, it was accepted that you were clearly a drug seller and not a gun supplier. Furthermore, it was accepted that the covert operative established himself as a drug buyer initially and "Pushed" the conversation towards firearms.
Conclusion
61 Any offence which involves the trafficking of drugs – in this case, largely cannabis but also a small amount of methylamphetamine – is a serious offence. This is made plain by the legislature fixing a maximum penalty of fifteen years’ imprisonment, representing the community’s abhorrence of people who traffick in drugs for financial gain.
62 Your offending in relation to the trafficking of cannabis extended over the period from 17 January 2017 to 28 May 2017, and in respect of the methylamphetamine, from 22 February 2017 to 28 May 2017. Some indication of the extent of the trafficking (in cannabis) is gained by the results of the CCTV footage taken over the period from 22 May 2017 to 28 May 2017 which, when analysed, amounted to at least 223 transactions over that one-week period.
63 Based on at least the transactions you undertook with the covert operative, the amounts of cannabis were not large and seemingly varied from approximately 3 grams up to one ounce of cannabis, which is approximately 29-odd grams. The covert operative did request 2 ounces of cannabis on occasion but this could not be supplied in one transaction.
64 The evidence in relation to the trafficking of methylamphetamine is limited to two occasions on 22 February 2017 and 28 February 2017 when you sold, respectively, 1 gram on each of those dates. There was conversation on at least two other occasions that you could supply methylamphetamine to the covert operative.
65 I do accept that during the course of this trafficking you were, and had been for a long time prior to the subject offending, a user of cannabis and, indeed, also methylamphetamine, perhaps to a lesser extent. As I have already recorded, you have prior convictions for trafficking in cannabis, albeit some time ago – on 12 September 1988 (two charges); on 8 December 1994, and on 20 January 1999.
66
I also consider than an aggravating factor in relation to all the subject offending, but perhaps more particularly in relation to the trafficking, is that on 30 January 2017 – 13 days after the trafficking in cannabis commenced – it was proven at the Broadmeadows Magistrates’ Court that you contravened a community corrections order made on 6 October 2015. On 30 January 2017, the Magistrates’ Court sentenced you to a further community correction order for 12 months, commencing on that day and containing the normal core conditions, but a special condition that you participate in the services specified in a
Justice Plan and undertake treatment and rehabilitation for drug abuse or dependency, and be under supervision of The Secretary.
67 Furthermore, the community corrections order, which was proven to have been contravened by you, was initially made on 6 October 2015 at the Broadmeadows Magistrates’ Court. That order was only brought about by you contravening yet a further community corrections order made on 18 June 2014. In particular, the community corrections order made on 6 October 2015 had the normal core conditions, but a further condition involving supervision by the Secretary, and for you to participate in the services specified in a Justice Plan.
68 In relation to the gun offences, depending on the circumstances, such offending can be very serious, as is made clear by the maximum penalty of ten years’ imprisonment. However, as is made clear in the Victorian Court of Appeal decision of Pham v R [2018] VSCA 200 at paragraph [11], the involvement of a covert police operative may affect the gravity of the offending or the moral culpability of the offender. Reference is made to the earlier Victorian Court of Appeal decision of DPP (Cth) v Haidari [2013] VSCA 149; 230 A Crim R 134 at paragraphs 31-33, wherein Harper JA (with whom Weinberg and Priest JJA) stated:
31. "The circumstances in which an offender enters into a criminal enterprise are relevant to sentence. One relevant consideration is, therefore, the relationship between the respondent and the undercover police officer which resulted in the conduct upon which Charge 4 is based …"
32. "If there is a real likelihood that, in the absence of police inducement, the offender would not have committed the crime, leniency may well be indicated. In the words of Badgery-Parker J in R v Taouk ((1993) 65 A Crim R 387, 404):
'… when it comes to sentence, the question is … whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have [committed the crime], and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as to diminish his culpability.’
33."This passage was approved by Spigelman CJ in R v N ((1999) 106 A Crim R 493, 504). In that case, Adams J, with whom the Chief Justice and Dunford J agreed, distinguished between (on the one hand) those who had been encouraged by the police to do what they otherwise would not have done, and (on the other) those who were in engaged in the criminal behaviour in question as part of their ongoing business." (Footnotes omitted.)
69 Your counsel referred to me to the various parts of statements made by covert operatives at pp.133, 138, and 141 of the depositions. I will not repeat all of the references, save for the reference at 141, which is instructive. The covert agent states:
"I then commenced to tell Palmer and McGann a story about my current girlfriend’s ex-boyfriend causing me problems and coming to the house. There was an attempt to steer the conversation towards the topic of weapons.
After hearing my story, Palmer initially suggested taking out a restraining order against the male. He then said ‘You make sure you have something there to protect yourself’.
I then said ‘It makes me feel like I need a gun or something’. Palmer than suggested a number of options including a Samurai sword. He then said he would see if he could get a Taser for me. I said ‘Yeah, could you?’ and Palmer replied ‘Yeah of course I could.’"
70 The other statements are of a similar ilk. In all of the circumstances, I am of the view, but for the encouragement by the covert operative, there is some prospect that the gun offences would not have been committed. However, as pointed out by counsel for the prosecution, there was ample time for you to withdraw from the transaction if you so desired.
71 After a consideration of all the evidence, I do consider that the involvement of the covert police operative does affect the gravity of the offending and your moral culpability in relation to the gun offences. This in turn impacts on appropriate sentence for each of those offences.
72
Again, I do note, as I have already recorded, you have two prior convictions for gun offences – one on 24 January 1989, when you were convicted of possessing a pistol, or imitation thereof, without a licence, and also on
16 January 2008, when you were convicted of possessing a prohibited weapon.
73 The summary charge involving possession of ammunition, although a lesser offence, involved encouragement by the covert operative to assist in finding ammunition for the rifle.
74 In mitigation, I do accept that your indication of pleading guilty to the substantive offences on the Indictment was at the "Earliest practical opportunity" after negotiations had been completed with the prosecution and occurring on the morning prior to the hearing of a contested committal. In particular, I also accept that such early plea of guilty had the utilitarian effect of saving the Court the time and cost of a trial, as is made clear by Phillips v R (op cit) at paragraph 36.
75 I consider that the utilitarian benefit in the circumstances of this matter is significant, as most probably the trial would have been lengthy given the involvement of covert operatives, film, and the period of time over which the offending occurred.
76 It is always a question for the sentencing judge whether remorse or a willingness to facilitate the course of justice and the acceptance of responsibility are to be inferred from a plea of guilty [see, again Phillips v R (op cit) at paragraph 96. I consider that, ultimately, the evidence against you in this matter is quite strong, but do accept that your plea of guilty is some evidence of remorse.
77 It was submitted by your counsel that you have indicated remorse and, in particular, reference was made to your comment to Dr Barth that:
"Selling drugs is not right. It is the wrong thing to do. It is a bad thing. I have made so many bad decisions with my life. I don’t want to live that life anymore. I want help".
78 Furthermore, your counsel highlighted that you have demonstrated a willingness to reform and invest in your own rehabilitation through the participation of various programs since being in custody and, based on the various tests, have been free from drugs during your period of custody.
79 Although I accept that you have expressed some remorse, I doubt that you have a clear understanding of the nature and extent of your offending. In this respect, I refer to the comments made by the authors of the "Extended Pre-Sentence Assessment – Outcome Report", wherein they noted that during the course of their interview you presented with little remorse, and continually made reference to being "Entrapped" by police. However, your activities since being on remand do indicate some intention of trying to overcome your drug problem.
80 I do accept that you have had a disadvantaged childhood, being exposed to an unstable family life, and being placed in and out of institutions from a very young age and throughout your teenage years, during which time you experienced physical abuse and observed other types of abuses around you. Your counsel referred to the High Court decision of Bugmy v R (op cit). In particular, I refer to the joint judgment of the High Court at paragraph [44] (consisting of French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) where they stated:
"… An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
81 I refer to the more recent Victorian Court of Appeal of Marrah v R [2014] VSCA 119, wherein the Court of Appeal (consisting of Redlich and Tate JJA) stated at paragraph [16]:
"Circumstances of deprivation, abuse, and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, [reference was made to Bugmy v R (op cit) at paragraph 44] and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour [reference was made to DPP v Terrick & Ors [2009] VSCA 220]. The frequency with which criminal conduct can be explained by such disadvantage does not relieve such sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment [reference was again made to Bugmy v R (op cit) at paragraph 44]. It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending." (Footnotes omitted.)
82 I accept the submission that, because of your disadvantaged childhood there should be some mitigation of your sentence because of a reduction in your moral culpability.
83 In a similar way, there is no issue that it has been established, pursuant to the Disability Act 2006, that your functioning is within the mild to borderline range of cognitive functioning and has been described as a "Significant cognitive deficit". Dr Barth, on the basis of your "Mild intellectual disability", comments that such disability can adversely affect the level of judgment, decision-making ability and social reasoning of an individual. Again, I accept that your intellectual disability reduces your moral culpability to some extent.
84 It must be borne in mind that, notwithstanding such intellectual disability, you clearly have been able to cope in the community and, in particular, I refer to the Client Overview Report dated 13 July 2018, where in the author notes that your communication skills are well developed, and you are able to engage in discussion about a range of issues and events, including the ability to describe emotions engendered by people, such as the impact of fatherhood, complex relationship matters, and legal outcomes. Furthermore, it was asserted that you are responsive to information important, or of interest, to you, and you have demonstrated the ability to concentrate on the task at hand. When unsure of what has been communicated you ask appropriate questions, and benefit from having information repeated or written to confirm that is clear what is expected of you.
85 The same writer also observes that you have limited problem-solving abilities, which leads to unrealistic solutions and your literary skills are limited, as is your spelling.
86 As I have noted, both the trafficking offences and the offences relating to the possession of guns, are serious offending. I consider that in determining an appropriate sentence, denunciation of those crimes and general and specific deterrence, together with the protection of the community, are relevant. In particular, deterrence – both generally and specifically – are important to make people realise that to become involved in these types of offences gives rise to significant penalties.
87 However, for the reasons which I have set out in this sentence, I believe such principles are diluted to some extent by what I have found in relation to the offending involving guns and, also generally, your reduced moral culpability as a result of your frightful background and your ongoing intellectual disability.
88 Although, seemingly, you have made some advancement in your stated desire to overcome your drug habit and turn a new leaf, I consider, given your past criminal history and my lingering concerns about your degree of remorse, I consider that your prospects of rehabilitation are "extremely guarded".
89 As I have recorded, your counsel has urged the Court to place you on a community corrections order with a particular condition that you comply with the Justice Order recently made.
90 After much consideration, I have formed the view that given the nature of the offending, your past criminal history and, indeed, your lack of compliance with various suspended sentences, intensive correction orders, and community corrections orders in the past, the appropriate sentence is an immediate one of imprisonment, tempered by the factors which I have referred to earlier in this sentence.
91 It must be borne in mind that it was established in 2015 that you do have an intellectual disability and, thereafter, you have been sentenced on two community correction orders; one on 6 October 2015, for a period of nine months and, later, one on 30 January 2017, for a period of 12 months – both of which specified that you must comply with, among other things, the services specified in a devised Justice Plan for you.
92 As pointed out by the author of the "Client Overview Report", your compliance with both orders was bad, notwithstanding that your case officers were primarily attempting to motivate you to adhere to the recommendations of the Justice Plan, and secure the title to your home in order to enable your goal of moving from Broadmeadows. However, as noted by the case officer, your "Motivation to activate the steps necessary to elicit change in other problematic areas of your life has been found wanting".
93 I intend to convict you for each of the offences. Please be upstanding.
94 In respect of Charge 1, you are convicted and sentenced to a period of imprisonment of twenty-four months.
In respect of Charge 2, you are convicted and sentenced to a period of three months’ imprisonment, to be served concurrently with the sentence imposed on Charge 1.
In respect of Charge 3, you are convicted and sentenced to a period of six months’ imprisonment.
In respect of Charge 4, you are convicted and sentenced to a period of six months’ imprisonment.
In relation to Summary Charge 28, you are convicted and sentenced to a fine of $250.
95 The sentence in relation to Charge 1 on the indictment will be the base sentence, and I further order that three months of the sentence in relation to Charge 3 and three months of the sentence in relation to Charge 4 be served cumulatively upon each other, and upon the sentence imposed in relation to Charge 1 on the indictment.
96 The total effective sentence is thirty months’ imprisonment and I direct that there be a non-parole period of twenty months.
97 I declare that you have served 349 days' of pre-sentence detention in relation to this offending, and such pre-sentence detention is to be administratively deducted from this sentence as time already served.
98 I also order a Firearm Forfeiture Order pursuant to s.151 of the Firearms Act 1996 in respect of the two firearms and ammunition. I also order a Disposal Order pursuant to s.77(1) of the Confiscation Act 1997 for the drugs and related paraphernalia.
99 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty on the substantive charges, I would have ordered that you serve a period of imprisonment of four years and six months.
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100 Anything arising out of that, ladies and gentlemen?
101 MS COOMBES: As Your Honour pleases.
102 MS BALLARD: As Your Honour pleases. There was just one matter that I sought to raise in terms of when Your Honour's preparing revised remarks. Just to make sure that I did not inadvertently misled the court, when Your Honour spoke of my client being in Turana and it being the subject of case study in the Royal Commission. My submission was that Turana as an institution was the subject of Case Study 30 in the Royal Commission, not that it was his case specifically.
103 HIS HONOUR: I see. All right.
104 MS BALLARD: Just sought to clarify that.
105 HIS HONOUR: I misunderstood. Look, that is fine.
106 MS BALLARD: Thank you, Your Honour.
107 HIS HONOUR: Yes, I certainly will change that.
108 MS BALLARD: Thank you, Your Honour.
109 HIS HONOUR: Mr Palmer, no doubt you are not overly happy with this result. I can understand that, but all I can say to you, you are showing signs, good signs, that things are going to get better. It is excellent what you have done about being off the drugs. All I can say is and you must know, you must know from your life that the longer you stay off the drugs, the better you are going to be. Now, a period of detention, I know every day in prison is not good. But it is not the end of the world. All I can say to you, keep on the straight and narrow in prison, you are well-liked there, you are doing a good job, and you are doing the courses and you are staying on the straight and narrow about the drugs. That is going to be to your benefit, that really is.
110 When you get out, look, it is not for me to give you advice, but hopefully you can sort out this thing with your house, because once that is sorted out, hopefully that will give you a bit more freedom to do things. But right now, in some ways, this gives you the chance to really get into this getting off the drugs, and I just hope that that continues. But anyway, I wish you the best. Yes, anything that arises?
111 MS BALLARD: No, Your Honour.
112 MS COOMBES: No, Your Honour.
113 HIS HONOUR: Yes, thank you. We will adjourn. Take the prisoner. I should say, look, thank you for your assistance. It is interesting once you get into those cases though, about - well, not entrapment but there is a bit of a flurry in recent times which particularly directed the covert operatives though - - -
114 MS BALLARD: Yes, which I will have to have a closer look at, thank you.
115 HIS HONOUR: Yes. Thank you, we will adjourn. Thank you.
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