Director of Public Prosecutions v Palmer Zerna

[2019] VCC 284

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01864

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHYRA PALMER ZERNA

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2018
DATE OF SENTENCE:	13 March 2019
CASE MAY BE CITED AS:	DPP v Palmer Zerna
MEDIUM NEUTRAL CITATION:	[2019] VCC 284

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Plea of guilty – theft -  robbery – cause injury intentionally  - threat to kill – reckless conduct endanger serious injury – criminal damage
Legislation Cited:	Crimes Act 1958; Criminal Procedure Act 2009; Road Safety Act 1986; Sentencing Act 1991.
Cases Cited:	Bugmy v The Queen [2013] HCA 37
Sentence:	Convicted and sentenced to a term of imprisonment of one year and eight months, with a minimum term to be served before being eligible for parole of 12 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G Overend	Office of Public Prosecutions
For the Accused	Ms N Sheridan-Smith	James Dowsley & Associates

HIS HONOUR:

1Ms Palmer Zerna, if you could remain seated, there are a number of matters that have been submitted by your counsel, Ms Sheridan-Smith, both at the last plea and today that I have to refer to.  You were born on 20 May 1995.  You are now 24, and were 23 at the time of this offending.  You pleaded guilty before this Court on 14 December 2018 to six charges in indictment No.J11505450.

2These offences took place on 25 April 2018 at Thomastown; that is, the ones involving Mr Schilling.  The first offence of which you are charged, of course, is the theft of a car.  On that particular day, you drove into the Excelsior Hotel, Thomastown, at approximately 5:00pm in a Ford owned by Mr Jeavons. 
That offence, of course, is a breach of s.74(1) of the Crimes Act for which the maximum penalty prescribed is one of ten years.

3The second charge is a charge of robbery, and I should say that all of these matters are specifically detailed in Exhibit A which was agreed to by your counsel as the facts upon which I am to sentence you. The robbery took place upon Mr Schilling, who was an innocent bystander attending for his own purposes. The items stolen were car keys, an iPhone and a bottle of scotch. Robbery is an offence against s.75 of the Crimes Act and is seen as a very serious offence, with a maximum penalty of 15 years jail. 

4Charge 3, is one of cause injury intentionally, again to Mr Schilling, when you hit him with a glass whiskey bottle to the side of the face.  This is an offence against s.18, for which the maximum penalty is ten years imprisonment.

5As part of your interaction with him, you returned to the car and threatened to kill him, wanting his PIN, as to the operation of his iPhone.  You punched him four times, you slapped him and spat at him.  You threatened him, with the words:

"Give us your PIN or you're dead meat.  You have a last chance to give it to us or you're dead."

6If what you had done up till then was not bad enough, you then decided to carry out your attack on him. I should say, a threat to kill is an offence under s.20 of the Crimes Act, again, the maximum penalty is one of ten years.

7You then carried out your threats, not so much to kill him but to commit upon him with the use of your car impacting his car, reckless conduct endangering him to serious injury.  You used your motor car to ram his car twice, and he was generally injured as a result of your earlier assaults and this ramming.

8It is noted that you were charged only in regard to that matter with an offence under s.23, for which the maximum penalty is one of five years.  You are indeed fortunate.  You could have been charged, for example, for that offending, for an offence under s.18 which would have been double the penalty.

9The final matter which you pleaded guilty to was one of criminal damage to
Mr Schilling's car. That is an offence also under s.197(1) of the Crimes Act, and again, it carries with it a maximum penalty of ten years. 

10That recital of your crimes and the penalties imposed by Parliament is indicative of the serious nature with which the Parliament views your crimes, and the views of the community. 

11You also have pleaded, pursuant to s.145 of the Criminal Procedure Act, to two summary matters, one being Charge 6 as the summary matter which was to drive while you were disqualified, which is an offence against Road Safety Act, s.30, the maximum penalty for which is 240 penalty units and/or two years' gaol. And then, a further offence of dangerous driving to the public, an offence against s.64(1) of the Road Safety Act, again, with a penalty of 24 penalty units and/or two years' gaol.

12In your record of interview, you denied in particular the reckless conduct.  However, you have since recanted those denials, and come before this Court pleading guilty to such conduct, in particular, as against what was previously detailed in your answers to questions 201 and 204.

13You proffer as the reason why you indulged in this behaviour, at question 201, that you were high on drugs.  You again also have recanted from what you originally said in your record of interview, you denied any threat to kill, which was your answer to question 222.

14Tendered as Exhibit C was the victim impact statement of Mr Schilling.  It seems to me not in any way exaggerated, when he states that as a result of your attack upon him, he was frightened for his life.  He was, because of a recent hip operation, for which he had only just got out of hospital some 14 days before, to use his words, helpless to fight back.  He could not stop you assaulting him, and taking his keys.  He was therefore stuck in that position with no keys and no ability to use the car to get away, when you subsequently attacked him.

15Exhibit B shows the damage to the cars and, indeed, the injuries sustained by Mr Schilling.  He spent 11 days in hospital.  Those days had a lot to do with subsequent development of complications with his hip.  As I say, there is nothing, it seems to me, exaggerated in the comments he made.

16You have served 280 days by way of pre-sentence detention, and have been remanded since 6 June of last year.  And indeed, a good deal of that time has been spent in protection for matters not associated with this matter.  And I am not particularly sure of the full details, except that being in protection, your service of imprisonment is obviously more difficult than it would be to other prisoners.

17This criminality breaches two community correction orders that you were on, one in which you were placed for a period of 18 months on 28/11/16.  Also, one that you had been placed on some nine weeks before on 16 February 2018.  It is also noted that you were on a Children's Court good behaviour bond at this time as well, from 18 December 2017.

18For a woman so young, your priors are particularly concerning.  It is difficult to identify them, and go through them.  However, just by way of summary, it seems that you have five prior offences for intentionally cause injury, 12 for unlawful assault, four for unlicensed driving, one offence for robbery, one offence for aggravated burglary, and three priors for drive while disqualified.

19On 16 February 2018, which I have already referred to, you were sentenced by way of pre-sentence detention to 153 days.  There are a series of matters, but the most serious charges on that occasion were robbery and unlawful assault.  That also was a combined period of imprisonment and a community corrections order which I have already referred to.

20In December 2017, you were sentenced for four charges of unlawful assault and intentionally causing injury.  In November 2017, you were sentenced to two charges of unlawful assault.  In June 2016, you were sentenced to four charges of burglary.  In the Children's Court in December 2010, going back, of course, to when you were only 15, you were sentenced to unlawful assault, intentionally cause injury, four counts, aggravated burglary, two counts, and four counts of burglary.

21It is a concerning record for a person so young.

22The criminality you committed in this car park this day can only be described as serious and sustained. The dangerous driving took place in a car park of a shopping centre, and the s.23 offence, when you rammed the car, you returned to commit - after you committed the initial assault under s.18, after you made the threat under s.20, and then you went ahead with this behaviour.

23Given that history, and I point out that you do not come before this Court,
Ms Palmer Zerna, as you know from your own experience, to be sentenced on these matters again.  But as I said, a history at your age of this degree is very, very concerning. 

24The problem is, as has been put by the prosecutor, I am asked to take into account, a very important matter for this Court, your rehabilitation.  But the reality is, with your history, this Court must be very guarded about rehabilitation.  As the learned prosecutor said, you have had many opportunities, however you seem, unfortunately, to be progressing up the scale of seriousness.

25There is no doubt, as was accepted by your counsel, that as a result of this frenzy of criminality, imprisonment must be imposed.  Even given your age and the principles set out by the High Court in Bugmy [2013] HCA 37, it is important to understand that the effects of profound childhood deprivation do not diminish with the passage of time and need to be given full weight.

26However, also, when one is in a position such as you are, the Court has to take into account what the High Court said:

"That this is not to suggest that an offender's prior background has the same mitigatory relevance for all purposes of punishment.  Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.  An offender's childhood exposure to violence and alcohol and neglect may explain the offender's recourse to violence when frustrated such that the offender's moral culpability and the inability to control impulses may be substantially reduced.  However, the inability to control a violent response to frustration may increase the importance of protecting the community from the offender."

27It is the difficulty of balancing those two principles in your case which has concerned me considerably. 

28As to the plea, all of the matters put before me - and most ably, if I might say so - by Ms Sheridan-Smith, pointed to you being a person who can only be described as a troubled person, a person who has been troubled for some particular time.

29In the written submission your background, antecedents, criminal history, and personal circumstances were particularly detailed by your counsel.  The protection issues and the lack of appropriate parenting, the substance abuse involved regarding your parenting, the prison issues involved regarding your parenting, are something that was clearly appropriate to be put to me.

30The role that your grandmother has played and continues to play in your life is obviously of great importance. I note today the comments made about your remorse felt about your current position, and the fact that you were unable to be with your grandfather at the time of his death. 

31In support of the plea, two reports of Dr N Zimmerman, forensic psychiatrist were tendered, the first was Exhibit 2A of 29 October 2018.  It is an extensive report, and I will simply refer to certain aspects of it because mostly
I want to go to the second report.  But if I go to the opinion, in particular, at p.39:

"In response to the questions posed, Ms Zerna's development experiences have left her with poor sense of self-esteem and identity, few stable and positive attachments in her life, and an impaired ability to cope with stress or negative emotions other than by using drugs."

32In considering your insight as to your offending, the doctor said at paragraph 40:

"Ms Zerna was able to recall the events constituting the alleged offending, and had demonstrated an awareness the role that her need for money for drugs played in these actions.  She was tearful talking about her regret for having offended and her distress at being thought as someone without a heart.  She was aware that she needed to desist from drugs in order to avoid reoffending."

33Insofar as your future is concerned, her recommendation was the need for some drug service to continue working with you long-term, and alongside your alcohol interventions, there needs to be attention to your history of unprocessed trauma and need to develop skills for dealing with negative emotions in the absence of substances. 

34I must say, to your credit, it has been put to me by your counsel the number of courses that you have personally undertaken to try and re-energise your life, if I use that word, and try and take a course different to that you have taken to date.

35The history which I perhaps glossed over is unfortunately one that is very detailed, and it led to a further report from Dr Zimmerman, and that came about from her having the Department of Health and Human Services full file.

36It is noted in the summary at paragraph 5, you are described as a 23-year-old woman with a background of significant upheaval and trauma as a child, appearances before courts from her mid-teens, and substance misuse.  It is noted that you had never worked, apart from helping your grandmother on the local football committee.

37The details from the DHHS files obtained by way of Freedom of Information were fully detailed in paragraphs 11 through to 18.  The steps taken by various authorities to try to reunite you with your parents, the frequent running away from your grandparents, trying to spend time with your mother and reunite with your mother, your uncle and friends, and of course, more serious abuse that was committed against you.

38It was noted, from psychological analysis, that it does not matter who your parents are, you still love them very much and clearly, you made repeated attempts to seek their care.  Unfortunately, that was not always so, and as Dr Zimmerman quotes at p.18, when your parents were off drugs and in a stable situation, both were observed to be loving and appropriate in their interactions with their children.  The problem, unfortunately, in your background, was that such did not occur very often.

39The doctor’s opinion was expanded at paragraph 27 in the second report.  It was stated that it is likely you experienced brief psychotic or dissociative symptoms in an acutely stressful environment, and she thought that can be usually formulated as having a borderline personality structure.  Paragraph 28, your pattern of daily and heavy use of drugs means that you are best formulated as suffering from methamphetamine and cannabis dependence, currently in remission by way of custody.

40Today, what will be filed, I am told by counsel, consistent with that are at least two clear screens, that have been taken this year.  Unfortunately, they have not been delivered to the Court but we hope that they will be in due course.

41As a result of my concern about you, I decided to call for a psychiatric report.  That report, is now Exhibit D, I thank Dr Glowinski, the consultant forensic psychiatrist from Victorian Institute of Mental Health, for such.

42It seems to me that, as I have said to both counsel and there was not any dissent to this, that the report is confirmatory of the two reports I have before me from Dr Zimmerman.  I should, however, go to some of the comments made.

43The histories are similar in regard to your upbringing and your drug history. 
The reference to the index incident really seems to me no different to what you said in the record of interview that you were "off your head" on the day of the incident.  It seems to me, given the concern of the victim, and the manner in which you behaved, that there can be no other classification of the way you behaved, but that you were behaving in that manner.

44It was noted in that paragraph that you maintained that you felt very sorry for the victim as he did not deserve to be subject to such behaviour, and to reflect on your behaviour now makes you feel bad about it. 

45As to his opinion and recommendations, he noted the full history that I have referred to and the trauma that you suffered as a young adult.  He diagnosed that you have a complex post-traumatic stress disorder which was not specifically diagnosed by Dr Zimmerman.  He noted your trauma history and the interweaving of symptoms into your personality development.

46Dr Glowinski noted you are currently on a range of psychiatric medicines for your decompensated mental state while you have been withdrawing from substances in custody.  There is not any concern from either specialist with any enduring psychotic disorder - provided, of course, that you stay off drugs.  Obviously, you need to be monitored by such services when in custody and hopefully when you get out.

47The doctor concludes with what is obvious - that you have polysubstance abuse and dependence disorder.  She recommends addressing that and of course, it is clear from the plea made on your behalf that for you to have any future, it is most necessary for you to deal with this addiction.

48It is of course understood by the Court that when you have the difficulties that a person such as you has, it is perhaps easy to resort to drugs to try and solve those problems.  But you are now 23 and you have a most concerning history, and you have got to turn this around yourself.  No-one else.  Unless you have the determination and strength, then you are just going to be, unfortunately, regularly before the courts as a result of an inability to contain your temper.

49In regard to the matters put to me by your counsel, they were in particular detailed by way of sentencing considerations set out at paragraph 15.  The first and foremost, of course, is your plea of guilty to these crimes. To your credit, despite some prevarication in the record of interview, you come before this Court pleading guilty to all of these serious crimes and have accepted the facts as set out by the prosecutor as matters upon which I am to sentence you.

50The offending itself, while concerning and sustained, was certainly not sophisticated.  I accept the motivation was linked to your chronic drug use, which has haunted you since youth.  It was a relatively limited period insofar as the offending's concerned.  However, that would have been a very concerning period for the victim, as you rightly notice.

51General deterrence must be a key consideration.  I note your plea and cooperation with the authorities.  And indeed, as evidenced in your record of interview, but for the matters of prevarication, you entered a plea at a very early stage, within one to two months of your arrest and remand.  You have expressed genuine remorse, not only to the clinicians but also through your counsel, and I accept that that remorse as expressed is genuine.

52You still have the support of your family, and that has of course been present on each occasion.  I take into account the issues with your remand which I have already mentioned and the need for your treatment while in gaol.  I take into account the now 16 certificates which have been tendered as part of Exhibit 3, that you have voluntarily gone through Coping with Change, Managing Emotions, Managing Worry, Managing Sleep, Relationship Skills/Problems, the two that were tendered today.  All of those matters are to your credit in the sense of you hopefully waking up at last to realise that you have got to change your way.

53You have also taken steps to improve your own education, which unfortunately, because of your background, is very limited, tendered was the various certificates that you have obtained from the Box Hill Institute while in gaol.

54There is no doubt that there could be not a truer statement made than that of your counsel who submitted that your prospects of rehabilitation would be substantially improved by you continuing to abstain from illicit substances and alcohol.  Your history shows that you cannot live in this community if you are on drugs, and unfortunately, who knows what might happen if you do not stop.

55You need, obviously, ongoing treatment in regard to those matters as referred to by the authorities.  And one would hope that as part of your ultimate parole, those facilities are made available to you.  Again, one hopes that there is a structured arrangement made insofar as you being given support on parole.

56It was put to me whether there could be a structured sentence in these circumstances.  I do not, unfortunately, take the view that that is possible:  (1), because of the seriousness of these offences, and; (2), because, unfortunately, with the best intention possible, the courts have given you many, many opportunities which you have not taken.  I find, therefore, that a combined period of imprisonment and community corrections order is not an appropriate sentence for you.

57Yes, if you would stand, please.

58Doing as best I can to take into account all of those balancing principles and being as merciful as I can to you, and at the same time taking into account all of the matters that I am required of s.5-6 of the Sentencing Act, I sentence you as follows.

59On the theft charge, you are to be sentenced to six months imprisonment.

60On the robbery charge, you are sentenced to six months’ imprisonment.

61On Charge 3, intentionally cause injury, a sentence of four months’ imprisonment.

62On the fourth charge, threat to kill, a sentence of three months’ imprisonment.

63On the reckless conduct endangering life, a sentence of 12 months’ imprisonment.

64And the criminal damage, a sentence of four months’ imprisonment.

65Using the sentencing of 12 months as the base sentence - that is, the base sentence on Charge 5 of 12 months - I order that three months of Charge 2, two months of Charge 3, and one month of Charge 4 be served cumulatively upon that base sentence making a total period of imprisonment imposed under the indictment of 18 months.

66Insofar as the summary matters, in regard to Charge 6, I order that you be sentenced to a period of imprisonment of three months, and Charge 8, a period of imprisonment of three months. 

67In regard to each of those, I order that one month of each of them be served cumulatively upon the sentence imposed in the indictment, making a total period of imprisonment of 20 months.

68I order that the period that must be served before being eligible for parole is a period of 12 months.

69I further order that the pre-sentence detention that you have served to date, being 280 days, be deemed as service of this sentence and that this declaration be noted in the records of this Court.

70So the sum total of all of your offending, despite its seriousness and me taking into account the terror caused by you to the victim, is a maximum sentence of 20 months with a non-parole period of 12 months.

71As I say, this is probably your last opportunity to get the benefit of a lenient sentence.  You play up again, and you come back to Court for serious crimes like this, and you are going to be getting a big sentence.  And the only way for you to ensure that that does not happen is:  get off the drugs.  All right? 
You are 23.  You have got your whole life ahead of you.  You have got support.  You have got your auntie there and your grandmother.  You have got support.  You have just got to do it.  You have had many opportunities and they have not worked, but you have just got to do it now.  Because your opportunities are running out.

72It is important, and I am told by Parliament, despite all of the considerations that have been brokered in your sentence, that the issue as to your plea of guilty has to be explained to you; that is, so that you understand the benefit.

73As I indicated to you, I have sentenced you for all matters to 20 months with a minimum of 12.  Can I indicate to you that had you not pleaded guilty, I would have sentenced you to a period of two-and-a-half years with a minimum period of 18 months.  So that what Parliament wants you to see is that there is an absolute benefit to you of having pleaded guilty.  All right?

74Despite your criminal convictions, your personal background has obviously had much impact on this Court.  All I can say to you is, if you come back to Court again, that impact reduces dramatically, which leads to a much higher sentence.

75Yes, any other matters that I need to mention?  Hang on, the license matters.  I think because of the Road Safety matters, I think I have got to - just one second.  This relates, Madam Prosecutor, I think to summary Charge 8, does it not?

76MS OVEREND:  Your Honour, it's in relation to the ‑ ‑ ‑ 

77HIS HONOUR: Section 64 of the Road Safety Act?

78MS OVEREND:  There's also 89(4) of the ‑ ‑ ‑ 

79HIS HONOUR:  And 89?

80MS OVEREND:  Yes. 

81HIS HONOUR:  And I think a minimum period of cancellation of six months. 
Is that right?

82MS OVEREND:  That is correct, and the 64.

83HIS HONOUR: And so in regard to both those sections, s.89 and s.64, I will order a minimum period of cancellation of six months.

84MS OVEREND:  As Your Honour pleases.

85HIS HONOUR:  Any other matters I will have to attend to?

86MS OVEREND:  No, Your Honour. 

87HIS HONOUR:  Yes, I thank both counsel for their assistance.

88MS SHERIDAN-SMITH:  Thank you, Your Honour. 

89HIS HONOUR:  And I am sure you will, Ms Sheridan-Smith, but ‑ ‑ ‑ 

90MS SHERIDAN-SMITH:  Reinforce everything Your Honour has said multiple times.  Absolutely, Your Honour.

91HIS HONOUR:  Yes. 

92MS SHERIDAN-SMITH:  I think Ms Palmer Zerna ‑ ‑ ‑ 

93HIS HONOUR:  Yes, well, good luck.  All right?

94OFFENDER:  Thank you very much. 

95HIS HONOUR:  I say it in the nicest way:  I do not want to see you again in this Court.

96OFFENDER:  Thank you. 

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