Director of Public Prosecutions v Palmer, Kelly-Anne
[2012] VCC 1583
•11 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
Case No. CR-12-01557
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KELLY-ANNE PALMER |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 October 2012 | |
CASE MAY BE CITED AS: | DPP v Palmer, Kelly-Anne | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1583 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Doyle | |
| For the Accused | Mr S. Peterson |
HIS HONOUR:
1 Kelly-Anne Palmer, you have pleaded guilty to two charges on two separate indictments. The first charge in chronological order is a charge of armed robbery on 18 May 2012. The charge of armed robbery has a maximum penalty of 25 years' imprisonment. The second charge in chronological order is a charge of robbery on 12 July 2012. This offence was committed whilst you were on bail for the armed robbery offence. The penalty for robbery is a maximum of 15 years' imprisonment.
2 You have admitted one prior court appearance at Latrobe Valley Magistrates' Court on 10 March 2011 for a charge of theft. The matter was adjourned to 9 March 2012 on you undertaking to be of good behaviour, with a special condition that you pay $100 in the Warragul Hospital Fund. You kept the terms of that undertaking and then within two months committed the armed robbery offence.
3 I will turn to the circumstances of the offending.
4 First of all the armed robbery. On 18 May 2012 you attended at the Tobacco Station in Graham Street, Wonthaggi, at approximately 2 pm. You walked in dressed in a grey/green hoodie and sunglasses. This was the extent of your disguise. At that time you had with you a blood-filled syringe which you had prepared prior to attending the Tobacco Station. The syringe was in your purse or wallet.
5 This store is also a DVD shop. You waited for the customers to leave the shop and then you approached the sales assistant, Donna Stephens. You threatened her by saying you had a syringe. You showed her the syringe but did not wave it about or jab it at her in any way. You told her that you were robbing her and that you wanted all the cash. Ms Stephens gave you the cash from the till. She thought it was about $800.
6 There was CCTV of the armed robbery. The police quickly tracked you down and you were arrested and interviewed on 19 May 2012. In your interview you made full admissions to your offending. You stated you were "off your face" on morphine and Xanax. You were co-operative with the police and made full admissions.
7 In respect to the robbery. On 12 July 2012, at approximately 11.20 am, you attended Pharmore Pharmacy in Main Street, Pakenham. You were dressed in a parka on this occasion with a fur-fringed hood. You approached the pharmacy assistant, Susan Fenn-Dinnie, a middle-aged woman, and demanded that she open the till because she was being robbed. You motioned with your hand in your pocket of the parka and then said, "You really need to open the till." Ms Fenn-Dinnie thought you may have had a weapon and she gave you the money from the till. The sum of $565 was taken. You had obviously put Ms Fenn-Dinnie in enough fear for her to change her mind about co-operating with your initial request for her to open the till. Ms Fenn-Dinnie says that she heard you say "sorry" as you turned away and left the pharmacy.
8 You have then gone to a nearby store, I think it was the Brotherhood of St Laurence community store, where you purchased a set of clothes. This, no doubt, was to change your appearance and avoid detection. However, you have then approached young people, in the vicinity, that you did not know and told them you had just robbed a chemist and one or other of them pointed you out to police.
9 You were agitated when arrested and initially denied doing anything. Somehow you had taken an excessive number of pills and an ambulance was called and you were taken to hospital. You have been in custody since then.
10 I am told you made full admissions in your record of interview on that occasion.
11 It is clear throughout these offences, and your apprehension, that you have co-operated in the speedy conduct of these matters through the courts and at all stages you have indicated your intention to plead guilty to the charges.
12 I now turn to your personal circumstances.
13 You were 31 years old on 6 November this year. You have been in custody since your arrest in July 2012. You had also been in custody prior to that. It is your first time effectively in custody, as I say, except for the remand period of 28 days on the armed robbery charge.
14 Your family background is that your mother and father are alive. When you were six years old they separated. You have a younger brother. Both of your parents have re-partnered. You remained living with your mother. Her partner, then your stepfather, sexually abused you between the ages of 8 and 14. You left home at 14 and moved in with your then boyfriend, Brayden Keown.
15 Your education was in the Keysborough district in two separate primary schools. You completed Year 11 at Chandler High School in Keysborough.
16 Whilst in high school you commenced a relationship with Brayden Keown. You have two children from that relationship, the first is Tyson, who was born in 1997 when you were 15, and the second, Chloe, born in 2002 when you were 21. Your daughter, Chloe, lives with your mother now. Your son, Tyson, lives with his father, Mr Keown. In 2004 your relationship with Brayden Keown ended. By this time you had purchased a home in Cranbourne, which was done in 2001. You have sold this home and moved to be closer to your mother. The relationship breakdown was the cause for you to sell the house.
17 From the age of 15 your worked part-time in a commercial butchers. After you finished school you made this job a full-time position. It was in the Chadstone district. At that stage, in your early 20s, you had a partner, two children, employment and a home.
18 In your early life, at age 14 to 15, you started using alcohol and cannabis. By the age of 22 you were using opiates. This was when your life started to spiral out of control. In 2006 you knew you were unable to properly care for your two children and you have given them to your mother initially for their care. By 2007 you had commenced using Xanax.
19 In January 2009 you made a statement to police about the sexual abuse by David Liston, your stepfather. The brief to prosecute Liston was not authorised as the extensive interviewing of your family members was too overwhelming for you and you could not effectively go on with it.
20 At about this time, in 2009, you have commenced a relationship with Jason Conius. You were both drug users or abusers. The relationship continued until you were incarcerated. It was a physically abusive relationship. An example of that was that he, Mr Conius, had punched your front teeth out. The overwhelming influence of drug and alcohol abuse was the dominant feature in the relationship. In the time of these offences in this case you were still in that relationship. The relationship is now over. I see that as the first step in your rehabilitation.
21 I was directed to the principles in Verdins. I have considered the report of David Ball, a forensic psychologist, dated 27 September 2012, which was prepared for the purpose of this plea. Mr Ball is of the opinion that you do not exhibit any evidence of frank mental illness such as psychotic ideation or hallucinations or delusions. He estimated your IQ fell within the normal range. I have had the advantage of seeing you in the witness box and I think that is an accurate assessment. He acknowledges that you have significant personality disturbance and a history of drug addiction.
22 Mr Ball diagnosed you with poly-substance dependence in early full remission in a controlled environment. On his assessment you do not meet the criteria for a personality disorder. Mr Ball says that your severe personality disturbance, as he described it, stems from the long-term childhood sexual abuse between the ages of 8 and 12, as he has stated. I have no doubt the experience of sexual abuse has had a deleterious effect on your life and continues to do so.
23 Mr Ball does not give the opinion that you are a person who fits into the criteria for consideration of the principles set out in Verdins case. I do not find the Verdins principles have a place to play in your sentencing and other matters are more important.
24 I will now turn to sentencing considerations.
25 In charges of armed robbery and robbery, the authorities and case law emphasise that the dominant purpose of sentencing is deterrence. The authorities also state that rehabilitation is relevant but is generally subordinate to the requirements of deterrence and community protection. Your case calls for a careful balancing of these two propositions in particular.
26 In respect to the armed robbery charge there is consideration of planning. In this case you have had the disguise of sunglasses and the hoodie, you attended with the blood-filled syringe and you had selected a soft target. Another consideration is the use of a weapon. As I say, you had taken a blood-filled syringe which you had prepared before you went there and that caused Ms Stephens sufficient fear to just hand over the money. In your favour, there is no evidence of you thrusting it about or an otherwise aggravated use of the syringe, you simply showed her the syringe and the fear did the rest. Ms Stephens in her statement says she was scared and shaken by the experience - and understandably so. I have no doubt you accept she was scared.
27 In respect to the robbery charge, considerations I have to take into account are again planning. On this occasion you attended with the disguise of a parka with the hood up and over your head. With subsequent events you changed your clothes at what I will refer to as the Op Shop, in order to avoid detection. As I said before, however, you go off and admit to other people that you do not know that you had just committed a robbery. Another aggravating feature in the robbery charge, is that you offended whilst you were on bail for the armed robbery. The last consideration I see, at the forefront, is that the chemist is also in the soft target category and it is open to the public.
28 There were no Victim Impact Statements filed in these cases but fear in the victim is the basis of the successful robbery or armed robbery. No physical injuries were suffered by either of them.
29 I also take into account your pleas of guilty to these charges. You have facilitated the course of justice and given certainty of outcome for your criminal activity. This has a utilitarian value to the community. Your plea has avoided the need for committals or trials in either of these cases. It frees up the resources of the courts, police, prosecution authorities and defence expenses for all other cases and offences. You have spared your victims, Donna Stephens at the Tobacco Station, and Susan Fenn-Dinnie at Pharmore Pharmacy, the confronting experience of giving evidence and the trauma of re-living their exposure to your criminal activity.
30 I accept that you are remorseful now for your offending and that you accept your responsibility for it.
31 The victim in your second offence, that is the robbery, Ms Fenn-Dinnie, says that during your offence you said "sorry." Again, I accept that you are remorseful. In the depositions there appears to be a disconnect between what you are doing during the offending and your appreciation of the seriousness of what you have actually done after the event.
32 The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both general and specific, rehabilitation, denunciation of your actions and protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, Ms Fenn-Dinnie and Ms Stephens. I am required to balance the interests of the community in denouncing your criminal conduct and the interests of the community in seeking to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into society.
33 As I have said, general deterrence is a significant factor in sentencing for offences of armed robbery and robbery. Each offence combines aspects of violence and dishonesty. A clear message has to be sent to like-minded offenders that the result of this criminal activity is loss of liberty. Further, a term of imprisonment satisfies the requirement for denunciation of your conduct in relation to these two criminal episodes.
34 The specific deterrent aspect of sentencing in your case is problematic. Your past criminal history is very limited in the sense that you have only had one prior court appearance which resulted in an adjourned undertaking to be of good behaviour. You saying "sorry" to your second victim indicates you had some empathy with her and that you may understand the seriousness of what you have done and the impact on other people. The counter-balancing considerations in specific deterrence are that you have committed the robbery whilst you are on bail and on the CISP program for the armed robbery. You obviously did not understand the seriousness of your position and its consequences when you offended in July 2012.
35 In your evidence here today you show some insight into the core problem for you, that is drug abuse, in the form of alcohol, prescribed drugs, and in a more limited way, cannabis. It is a correct observation by you that you cannot guarantee that you will not use again. You can try. Ultimate that is up to you. You are intelligent and can work it out for yourself.
36 That leads me to the prospects of rehabilitation for you.
37 The CISP program was successful, in part. You have had a long period of drug abuse. That makes the task of recovery very difficult. However, you are of an age where you have to make the choice yourself. Your daughter had turned ten years old on the day you were released on CISP. You know these coming years are very important for her and you know as a mother you have the ultimate responsibility for her welfare. Brayden is looking after your son. If you can focus on your responsibilities to raise and guide your children your prospects of rehabilitation are promising. You need to focus on that motivation and plan one day at a time. I will place you on an unusually long parole period which will give you an incentive and some control over your own rehabilitation.
38 The prosecution submitted that the totality of your offending calls for an immediate term of imprisonment. I have previously referred to the maximum penalties set out for each of the offences by Parliament. The prosecution submitted that the considerations of general and specific deterrence and denunciation were to be accorded full weight, given the circumstances of these offences. I accept that the consideration of specific and general deterrence, combined with denunciation of these offences, are very significant in this case. The Crown submitted a sentencing range of a total effective sentence of three to four years with a non-parole period of 18 months. On your behalf Mr Peterson submitted that a Community Corrections Order with an intensive supervision period was appropriate.
39 I have decided that the only appropriate sentence is one of imprisonment and I agree an unusually long period of parole is an appropriate course. I have taken into account the totality of your sentence when considering the cumulation of sentences of the robbery charge on the armed robbery.
40 If you would stand please.
41 On the charge of armed robbery - this is Indictment No.11395297 - you are convicted and sentenced to 30 months' imprisonment. I fix a non-parole period of 18 months' imprisonment in respect of this indictment and the sentence on the other indictment, C11937141.
42 I declare that you have served 119 days pre-sentence detention in respect of this charge and the charge of robbery in Indictment No.C11937141.
43 I order the forfeiture order that was sought and you consented to and I also order the retention of a forensic sample under s.464ZF.
44 On Indictment No.11937141, this is the charge of robbery. On the charge of robbery you are convicted and sentenced to 12 months' imprisonment. I order that six months of this sentence be served cumulatively upon the sentence in Indictment No. 11395297.
45 I declare that you have served 119 days pre-sentence detention in respect of both indictments. The total effective sentence in respect of both indictments, No. 11395297 and No. 11937141 is 36 months. I order that you serve in respect of both indictments a total of 18 months before being eligible for parole.
46 There is just one final bit. It is what I would have sentenced you to if you did not plead guilty in respect to both of them, that is both indictments. I would have sentenced you to four years' imprisonment with three years non-parole period. Does that cover everything, Mr Peterson?
47 MR PETERSON: Yes, Your Honour.
48 HIS HONOUR: Mr Peterson, I am always thanking Mr Doyle but you're here for a first time. Thanks for the care and approach you took with preparation of these materials for the plea and the presentation.
49 MR PETERSON: I am indebted to Your Honour.
50 HIS HONOUR: We will prepare the paperwork and otherwise you go with them Ms Palmer.
51 OFFENDER: Thank you.
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