DPP v Palise

[2017] VCC 1379

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 17-00117

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARLEY PALISE

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2017
DATE OF SENTENCE:	25 September 2017
CASE MAY BE CITED AS:	DPP v Palise
MEDIUM NEUTRAL CITATION:	[2017] VCC 1379

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Parnham
For the Accused	Ms Z. Garde-Wilson

HIS HONOUR:

1Harley Palise, you have pleaded guilty to two charges on the indictment G12259333.

2Charge 1 is a charge of using a carriage service in a menacing or harassing manner.  That charge has a maximum penalty of three years' imprisonment.

3Charge 2 is a charge of kidnapping.  The maximum penalty for this charge is 25 years' imprisonment.

4You have also admitted your prior criminal history.  Relevantly, you were convicted of a charge of threat to inflict serious injury at Heidelberg Magistrates' Court in September 2013.  You were convicted and fined.  That offence against your former partner who is the mother of your child.

5You also have a Children's Court conviction in March of 2008 for a charge of affray.  You were placed on probation for that offence.

6You have also pleaded guilty to Charge 9, a related summary offence which was driving whilst suspended.

7I turn to the circumstances of this offending.

8The background of these offences is that in 2012, you commenced your relationship with Stephanie Ryan, the victim of your offending.  On 25 July 2016, Ms Ryan ended the relationship.  She moved from your home at South Morang to an address at Dalziel Drive, Mernda.  She was then living with friends in Mernda.

9On 6 August 2016, you convinced Ms Ryan to move back with you at South Morang.  The reconciliation did not work.  You accused Ms Ryan of not putting enough effort into the relationship.

10On 12 August 2016, the breakdown of the relationship came to a head.

11At six in the evening on 12 August 2016, you called Ms Ryan.  You told her that she was not putting enough effort in the relationship and that you wanted her to come and collect her belongings from the home in South Morang.  During that call, you were very abusive to Ms Ryan and told her that, "I really want to punch you in the face."  You then added that if you ever saw her on the street, you would ram her and that you hoped that someone would crash into her.

12In order to end the conversation, Ms Ryan said she would be at the home in 15 minutes to collect the possessions.  However, due to her fear of you, she instead drove to Wallan and sought refuge with a friend.  Later that evening,
Ms Ryan sent a text to you telling you that she did not want to be with you any more.  From that point, you then incessantly called and sent text messages to Ms Ryan.  Most of them were abusive, threatening and offensive.

13Between 8.40 pm and 9.54 pm that night, she received a total of 45 text messages from you and she had 15 missed phone calls from you.  By way of example, you sent Ms Ryan the following messages.  These are just examples.

14"Cunt, I'm done, I hate you.  I honestly fucking hate you.  You're a fucking maggot.  I'm just throwing your make-up out, you unfaithful dog.  Trust me, I'm going to fucking hurt you 110 per cent, I promise you that.  That's it.  So much love and care that you don't bother to try and call me.  Fuck off cunt" and "Cunt, where are you?"

15Ms Ryan did not respond to any of these texts or answer any of your calls because she was fearful and wanted you to stop.  That is the basis of Charge 1.

16At about 9 o'clock on 16 August 2016, you drove to Mernda.  You parked the car around a corner in a side street.  You then jumped the back fence of the house, entered the house through an unlocked door.  You have then made your way to Ms Ryan's bedroom in the house.

17At that time, Ms Ryan was in bed at that address in Mernda.  She heard a dog barking.  A few minutes later, you opened her bedroom door.  She demanded to know how you got into the house and why you were there.  You asked
Ms Ryan why she would not speak to you, and you told her that you just want talk to her.  You then ordered her to get dressed and give five minutes of her time so that you could talk to her.  You then took her mobile phone and attempted to unlock it so you could check its contents.

18Ms Ryan repeatedly told you to leave the house, but you refused to do so.  She yelled out loudly to you, "How did you get in" and "You need to get out."  She hoped to get attention of Samuel who was one of the other occupants of the house.  The other occupant of the house heard the yelling and dialled 000.

19You then asked Ms Ryan if she had been talking to other males.  She told you that she did not want to go with you and tried to get away from you.  You have chased her around the lounge room and was able to grab her left arm.  Holding her left arm tightly, you have dragged her out toward the front door of the house.

20She screamed at you to let her go a number of times and told you did not want to go with you.  Despite this, you have dragged her out the front door and to the car.  The car was owned by a friend of yours.  Ms Ryan then tried to resist and screamed loudly.  You told her to be quiet.  She was very fearful about what you might do to her.

21The other tenant in the house then opened the door.  He saw that Ms Ryan was being dragged down the driveway.  He saw Ms Ryan kicking and screaming in an attempt to get away from you.  Once again, he rang 000.

22A neighbour over the road from the Mernda addresses also witnessed some of this and she heard dogs barking.  She heard a female voice yelling out, "No, don't.  Let me go."

23When you arrived at the car, you were still dragging Ms Ryan.  You pushed her into the front passenger seat.  You then got into the car and locked the doors.  You told Ms Ryan you were going to drive to your mother's place in Heidelberg West.  You then drove toward Heidelberg.  Ms Ryan told you numerous times that she did not want to be with you.  That is the charge of kidnapping.

24At the time you drove to and from the Mernda address, you were not licensed to drive as your license had previously been suspended. That is a related summary offence of driving whilst your license was suspended.

25You then drove to your mother's place.  However, your mother's car was not there, so you continued into the McDonald's restaurant in Bell Street in Preston.  Meanwhile, Jessica Sultan had informed your mother, Mrs Jones, about your actions.  Mrs Jones called you, that is, your mother called you and made some arrangements to meet you a short distance away in Lawson's Street in Heidelberg.

26When you met at the rendezvous point, Mrs Jones, your mother, told Ms Ryan to get into her car and told you to leave.  By that stage, Ms Ryan had been in your company for approximately 45 minutes, since the time she left the Mernda address.  After Ms Ryan got into your mother's car, Mrs Jones drove her back to the house in Mernda.

27The police were at the house in Mernda when Ms Ryan arrived home and it is noted that Ms Ryan did not suffer any physical injuries as a result of your actions.  She however, was shaken and very scared of you and what you might have done to her during the ordeal.

28Ms Ryan was given an opportunity to make a victim impact statement in this case.  She has declined.

29Ms Ryan set out the offending for the kidnapping at depositions, p.5 and 6 in the following terms.

30She says,

"We get to the car.  It was a white Nissan Pulsar.  I believe his friend owns it.  He pushed me into the passenger side and when he got in, he locked the doors.  Harley said to me that he was driving to his mother's house in Heidelberg West.

We drove directly there.  During the drive, Harley was crying, asking me why I'd been speaking to other guys and that he just wanted to be my friend.  I told him it was finished.  I made no attempt to get out of the car as I was worried that it would aggravate him.  During the drive, I was unable to call anyone as my mobile was left back at the house.

We arrived at his mother's house and just drove past as her car was not there.  He then drove to the Bell Street Heidelberg McDonald's and went through the drive thru where he ordered a coke.  During all this time, we were having a conversation.  I just kept telling him that I didn't want to get back with him.

We had just left McDonald's when his mother calls him and she had asked him where he was.  I heard him say to her that he would meet her at Lawson's Street in Heidelberg, which is about 500 metres down the road.

We met Harley's mum and she told me to get into her car, which I did.  She had a word with Harley and came back to the car and drove me back to my place in Mernda.  When we got back there, the police were present and I then told them what had happened.

I don't have any physical injuries as a result of today's incident.  I was in fear of Harley and what he was capable of doing.  At no stage did I want to go with him.  He forced me to go with him.  At no stage was he invited by me or any other members of the house.  As a result of today's incident, I believe Harley has escalated his behaviour, which I am in fear of."

31On that same day, 16 August 2016, you were arrested and interviewed by police at the Mill Park Police Station.  Amongst other matters, during the course of the record of interview, you admitted that on 12 August 2016, you had sent many abusive text messages to Ms Ryan.  You had agreed that the messages were offensive and inappropriate and stated Ms Ryan would have been scared by them.  You admitted to calling and texting Ms Ryan many times on that night, but could not say how many times.

32You admitted to making a threat to kill Stephanie during a telephone call on that time.  You admitted to driving to Dalziel Drive on 16 August 2016 and parking around the corner from her house.  You stated that you had knocked on the front door, but when there was no answer, you jumped the gate and entered the backyard.  You stated that you went to the back laundry door, found it was unlocked, so you opened it and went inside the house.  You stated that your only intention was to speak to Stephanie.

33You stated that you went to Stephanie's bedroom where you spoke with her.  You then admitted that Stephanie asked you leave.  However, you stated that she only said this once before she voluntarily agreed to go with you.  That is a dispute between the two of you.

34You denied that Stephanie had tried to run away from you.  You denied that you chased her and grabbed her by the arm.  You admitted that as you walked out the front door, you grabbed Stephanie by the arm.  However, she shrugged you off and then voluntarily walked beside you to the car.

35You denied that Ms Ryan was screaming, that she was asking for you to release her.  You denied that you dragged her to the car.  You denied that you had forced her into the passenger seat of the car, stating that she got into the car voluntarily.

36You admitted to driving Ms Ryan to Lawson Street in Heidelberg and you admitted that she had got into your mother’s car and then drove back to Mernda.

37At the end of the record of interview, the following questions and answers occurred, and it is Questions 304 to 309 I am referring to.

38These answers show some insight on your behalf and demonstrate remorse on your part.  Your pleas of guilty are consistent with that course.

39I turn to your personal circumstances.

40You are now 26 years of age.  You live with your mother and your six year old daughter from a previous relationship to which I have referred to earlier.  You have sole custody of your daughter.

41You completed your formal education to Year 8 at Banksia Secondary College.  You have been employed by your father who runs a floorboard business in Heidelberg.  You have maintained consistent employment with your father.

42Your main sporting interest is indoor cricket.  You either play or train four nights per week.

43Since this offending, you have attended the Plenty Valley Community Health Men's Behaviour Change Program.  You have completed six of the 14 sessions in that program.  I accept that you initially attended at a similar program in Dandenong before enrolling in the Plenty Valley program.

44I read a report dated 20 September 2017 from Plenty Valley Community Health, which was Exhibit 2 in the plea.  You are encouraged to continue with that program.

45I have also read the report of Mr Matthew Staios, consultant psychologist, dated 18 September 2017.  That was Exhibit C on the plea.  You have been assessed within borderline range of general intellectual functioning.  Your vocabulary knowledge has been assessed at the lower end of the borderline range.

46Mr Staios assessed you as having an underdeveloped capacity for verbal abstract reasoning.  In short, you have trouble with communication to other people.  That is demonstrated by this offending and also by the previous offending with your past partner.

47Mr Staios' opinion is you need assistance with this problem.  There are no Verdins case issues in your case.

48I previously referred to your admitted criminal history, in particular, the previous violent offending.  You have spent a total of 26 days in
pre-sentence detention.

49I turn to sentencing considerations.

50The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community.

51In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.  I also take into account the impact of your offending on your victim.

52I am required to balance the interest of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.

53I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exclusively to the kinds of sentences imposed in culpable cases and the statistics of those sentences.  I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.

54I have referred to the decisions of this court, in particular, DPP v Baker reported of [2016] VCC 392 and DPP v Flavel [2016] VCC 988. Each of these cases have resulted in CCO dispositions for the charge of kidnap. I have also checked the Court of Appeal decisions in relation to kidnap sentences and other County Court sentences imposed for the charge or kidnap.

55In this case, the context of the charge of kidnap is that you had been in a relationship with your victim.  The relationship had ended.  You entered the house where your victim was in bed.  You took her from her home.  You drove her around in a friend's car for 45 minutes and the ordeal ended when your mother intervened and rescued the victim from your offending.  Whilst your victim had no physical injuries, you placed her in fear of what you might do to her.

56You have offended in this manner and you have prior convictions for violent offending.  In your case, the consideration of general deterrence, specific deterrence, just punishment and denunciation dictate that a term of imprisonment is the only appropriate sentence for the charge of kidnap.

57I find that Charge 1 is an appropriate charge to consider an alternative penalty to imprisonment.  I am mindful of the provisions of the Sentencing Act and in particular, s.5 (4) (C), which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.

58I reviewed the case of Bolton, to consider if a community corrections order would be appropriate in your case and I have had you assessed for a community corrections order.  You have been assessed as being suitable.

59I assess your prospects of rehabilitation as good.  You have the support of your mother on the domestic front, together with your daughter.  They are what courts refer to as protective factors.  You have also the support from your father on the employment side of your life.  A community corrections order can assist you on your release from prison to continue with your men's behaviour change course.

60You have pleaded guilty to these charges.  Your plea of guilty was indicated, in my view, at an early stage, given the charges.  Your plea does have the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and the resolution of the substantive issues raised by your offending.

61Your plea also allows for the preservation of the court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community.  Your plea is also alleviated your victim from giving evidence at the committal or trial in this case.  Your plea also is a clear acknowledgment by you that you accept the responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf, as I have said before.

62Would you stand please.

63On Charge 1, which is the charge of using a carriage for communications, you are convicted and placed on a two year community corrections order, commencing upon your release from imprisonment imposed in Charge 2.

64The conditions of the community corrections order are that you be supervised, that you attend for mental health treatment and rehabilitation, and that you attend for offender reduction programs at the direction of Community Corrections.

65You are to report to the Heidelberg Community Corrections Centre two days after you are released from prison.

66Charge 2, you are convicted and sentenced to six months' imprisonment.

67That is a total effective sentence of six months.

68The pre-sentence detention is 26 days, which will be deducted administratively from that sentence.

69The s.6AAA.  But for your plea of guilty, I would have sentenced you to two years with an 18 month minimum term.

70On the summary Charge 9, which is a related charge, you are convicted and fined $500 and I will give you a stay of eight months to pay the fine.

71Was there a 464 required or that is all done, isn't it?

72MS PARHHAM:  He is already profiled, Your Honour.

73HIS HONOUR:  Yes, thank you.  Does that cover everything, Ms Garde-Wilson?

74MS GARDE-WILSON:  Yes, Your Honour.  s.6AAA, Your Honour?

75HIS HONOUR:  Sorry?

76MS GARDE-WILSON:  s.6AAA.

77HIS HONOUR:  Yes.  Sorry.  The s.6AAA was two years with an 18 month minimum.

78MS GARDE-WILSON:  Sorry, Your Honour.

79HIS HONOUR:  That is fine.  Yes, sorry.  The period of time for the community corrections order is two years.  Yes.  Your client is a bit queried.  Just before he goes, if you want to ‑ ‑ ‑

80MS GARDE-WILSON:  Do not worry about it.

81OFFENDER:  (Indistinct words.)

82HIS HONOUR:  My apologies.  I was talking down.  The fine is $500 and I am giving you a stay of eight months to pay it so that you will be out of gaol.

83OFFENDER:  Is that for ‑ ‑ ‑

84HIS HONOUR:  Yes, that is for the driving.  Yes. 

85OFFENDER:  So, does that mean my time (indistinct words).

86HIS HONOUR:  Eight months from now.  Yes.  Thank you, you can remove the prisoner.  Thank you.  Sorry, I have got to get the community corrections order signed before you go.

87MS GARDE-WILSON:  Yes.

88HIS HONOUR:  Just take a seat, Mr Palise.  I will just show that order to you, Ms Garde-Wilson.  If it is okay, you can take it down and get your client to sign it.  I will just give you a copy of that order, Ms Garde-Wilson.

89MS GARDE-WILSON:  Thank you, Your Honour.

90HIS HONOUR:  Thank you.  Thank you, you can remove the prisoner now.  Thank you.  Thank you for your assistance.

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