R v Emery
[2010] VSC 478
•22 October 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1665 of 2009
| THE QUEEN |
| v |
| KIM EMERY |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2010 | |
DATE OF SENTENCE: | 22 October 2010 | |
CASE MAY BE CITED AS: | R v Emery | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 478 | |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Long history of drug abuse – Early offer to plead – Offer rejected and later accepted – Plea of guilty – Rehabilitation well advanced – Limited role – Serious violent offender – Disproportionate sentence not sought nor required.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P D’Arcy | Office of Public Prosecutions |
| For the Accused | Ms T Hartnett | Galbally & O’Bryan |
HIS HONOUR:
Kim Emery you have pleaded guilty to one count of intentionally causing serious injury and you have admitted a number of prior convictions. You are now to be sentenced for that offence.
You were originally presented for this offence together with Mr Giovanni Rossi. Mr Rossi has pleaded not guilty to the charges against him, and his trial is currently proceeding before me in this Court. I am informed that you will not be called as a witness for the Crown or the Defence in that trial.
Sentencing you for this offence has been complicated by circumstances that arose after your plea. The prosecutor, Mr D’Arcy, has indicated that two key witnesses in the matter can no longer be treated as witnesses of truth. Both witnesses had previously given evidence that your role in these events was more substantial than the evidence would now suggest that it was. Despite the change in the Crown’s position, through your counsel, I am informed that you do not wish to apply to change your plea and wish to have this matter dealt with quickly.
Circumstances of Offending
The circumstances of your offending arise out of what has obviously been a long and difficult regime in your life of drug abuse and poor relationships.
This offence occurred on 16 April 2009 in relation to a man named Peter D’Amore who is the victim of this crime. You and Mr D’Amore had been in a relationship and had lived together for about two years with your younger daughter Aleishia. Shortly prior to the incident on 16 April 2009, however, you formed a relationship with Giovanni Rossi, having moved out of the premises you lived in with Mr D’Amore to Mr Rossi’s premises at Albert Street Reservoir. Your daughter, however, remained with Mr D’Amore.
As the Crown’s summary of the facts indicates, and it is not contested on your behalf, the separation between you and Mr D’Amore was hostile, with arguments about property that you had left at Mr D’Amore’s house and also about where your daughter Aleishia would live. Two days prior to the incident which gave rise to this offence, Mr D’Amore had apparently taken a mattress which had belonged to you, to Mr Rossi’s premises in Albert Street Reservoir and left it in the driveway.
On 16 April 2009 during the afternoon, Mr D’Amore went to Mr Rossi’s premises for the purpose of discussing with you the collection of your belongings from his premises. The discussions became an argument which referred back to the incident involving the mattress. There were then a series of incidents where fragile items which had belonged to you were taken by Mr D’Amore to Mr Rossi’s house and were then thrown on a driveway causing them to smash, being a vase, a candle holder and a platter. You and Mr Rossi were present at the time and the situation became more and more angry.
You and Mr Rossi then approached Mr D’Amore’s house. Mr Rossi was carrying a white bucket which contained diesel fuel and Mr D’Amore not realising that, went outside to confront you and Mr Rossi, throwing a wooden plank towards Mr Rossi’s feet. It is alleged that at that stage Mr Rossi yelled at Mr D’Amore a threat to kill and then threw the contents of the bucket over Mr D’Amore. At that stage you were standing just behind Mr Rossi. There was then a fight during which Mr Rossi and Mr D’Amore exchanged punches and as he described it, Mr D’Amore slipped over during that confrontation and as he got up he realised he was on fire, although he had not understood how that came to occur. His hair, back, arm and some of his clothing was on fire.
Ultimately, Mr D’Amore endeavoured to obtain relief from the pain that was caused by the burns that were occasioned by getting into a shower until the ambulance paramedics arrived.
Your daughter Aleishia was at Mr D’Amore’s house when this occurred. It appears she was watching what was occurring. She originally said she saw you with the white bucket and you pouring some yellow liquid which was said to be diesel fuel from a bottle into a bucket, carrying the bucket and then Mr Rossi taking the bucket. However, as I understand it, she no longer stands by that observation and has apparently informed a police officer that she was instructed to say that. I do not sentence you on the basis that you did as she described.
Other witnesses saw your involvement. One who was present was Tamara Burrell. She observed you being present and carrying a white bucket as you approached Mr D’Amore’s premises and heard you yell at Mr D’Amore, “I’m going to fuckin’ kill you”. She also claims it was you who threw the contents of the bucket over Mr D’Amore. I am not prepared to accept that occurred to the required standard and I do not sentence you on the basis that you did that.
The witnesses also saw the accused man Mr Rossi with a blowtorch in his hand at some stage prior to Mr D’Amore being set alight. Two other witnesses saw a male, being Mr Rossi, throwing the liquid over another male, being Mr D’Amore and consequently saw that he was on fire. You have pleaded guilty on the basis, as I understand it, that you were present and you were a knowing accomplice to what Mr Rossi did when Mr D’Amore was confronted by Mr Rossi, Mr Rossi then throwing the fuel over Mr D’Amore and setting fire to him with a blowtorch.
Shortly after the incident you were arrested by police at Mr Rossi’s premises and an interview was later conducted at the Darebin Criminal Investigation Unit. In that interview you made denials and your counsel, Ms Hartnett, has frankly told me that she does not rely on any aspect of the interview on your behalf. Clearly it was not a candid interview with the police.
You were originally charged with attempted murder and I am told by your counsel, and it is confirmed by Mr D’Arcy for the prosecution, that on 8 July 2009 you offered to plead guilty to the count you have now pleaded to and that offer was rejected and a contested committal was then conducted.
On 25 June of this year a further offer was made which repeated the original offer of July 2009 and this time it was accepted.
It is submitted on your behalf and not contested by Mr D’Arcy that you should get the maximum discount available for your offer to plead guilty at the time that you did. That offer was made only three months after the incident and though the offer was rejected, I agree that it represents an immediate willingness on your part to take responsibility for your actions in this incident and that you should get the maximum discount available for having taken that step.
Personal Circumstances
In the course of a thorough and helpful plea, Ms Hartnett of counsel on your behalf outlined your background, revealing an extremely difficult and regrettably criminally eventful life. You are, as she said, aged 37 with very limited education and employment but a much broader history of drug abuse.
In summary, it appears that you grew up in the Reservoir area, which was described as being “tough”. Before you could know him, your father was murdered and you were then brought up by your mother and your grandparents. At the age of 12 or 13 your grandfather died. At about the same time your mother revealed that she was a heroin addict and then began a methadone program.
Your education at a secondary level was at the Northcote High School to Year 9 and Preston East Technical School to Year 10. These were again, described as difficult environments, and were not particularly conducive to useful education.
At the age of 14, you commenced using alcohol to excess and later began consuming cannabis, as well as amphetamines. Ms Hartnett informed me that shortly after you left school in Year 10 you obtained employment for a year at a supermarket in Preston: sadly, that has been the only employment you have maintained from that day until this.
You became involved in a number of difficult relationships. One relationship produced a child when you were 16 years of age, being your daughter, Rhiannon. That relationship ended in violence some time later. By then, you were involved in the use of amphetamines, although you maintain that you did not use those drugs during the pregnancy. At 23 years of age your second child was born of a different relationship which was essentially a relationship geared to drug use.
It would appear that since that time you have used almost every drug available.
In 2007 you commenced a relationship with the victim in this matter Mr Peter D’Amore. Mr D’Amore is bricklayer without prior convictions. Your drug use caused problems in that relationship leading to the incident which is the subject of the count to which you have pleaded guilty. In this period you were consuming an alarming mixture of prescription drugs as well as methadone and marijuana.
Prior convictions
As I have previously indicated, you have admitted prior convictions; some 58 offences are detailed arising from ten Court appearances. Your criminal history involves offences of dishonesty which are significant, but of particular significance are a conviction for armed robbery on 17 April 1998 and a conviction for intentionally threaten serious injury on 18 October 2000. I am told the armed robbery offence was on a milk bar and was a direct product of your heroin addiction. The offence of intentionally threaten serious injury was against police and was the result of problems you were encountering in the relationship you were then in. You have also been convicted of threaten to kill and possessing a controlled weapon on 22 July 2003. You served actual imprisonment in relation to the matter in April 1998 of armed robbery, being a period of some nine months, with the balance of the sentence of a further nine months being suspended for a period of three years.
Pre-Sentence Detention
You were arrested and charged with these offences, as I have earlier said, on 16 April 2009 shortly after the incident and have remained in custody ever since, never having applied for release on bail. Ms Hartnett has demonstrated in the plea on your behalf that you have maximised the opportunities that are available to you whilst you have been in custody to further your rehabilitation. Upon being imprisoned, you were undergoing methadone-assisted withdrawal from heroin and I am told you have now withdrawn from methadone altogether.
I am also informed that, upon being placed in custody, you began as a laundry billet and are now a unit billet, residing in an open unit at Dame Phyllis Frost Women’s Prison. You enjoy significant privileges on the basis that you have demonstrated trustworthiness as a prisoner.
You have started using the gymnasium every day and have begun reading as well as becoming involved in educational programmes. In addition, you have had psychological treatment. I have been provided with a report from Forensicare confirming the fact of your treatment and also a detailed psychological evaluation. I will return to that evaluation shortly. That document demonstrates, as has been submitted on your behalf, that your rehabilitation is under way and you are to be encouraged in your endeavours to improve your life in the way that you have.
In addition, some months after you had gone into custody for this matter, you were visited not only by your mother but by the victim of your offending, Mr D’Amore. Ms Hartnett informed me that Mr D’Amore has made it clear to you that he forgives you for your part in the incident and that he wishes to renew the relationship. He has declined to provide a Victim Impact Statement. He visits you twice a week. Within those limits, that relationship has continued and Mr D’Amore supported you in Court before me on your plea. In addition, the relationship between Mr D’Amore and your daughter Aleishia is good and upon your release it is hoped that she will reside with you and him.
Psychological Evaluation
On 13 September 2010, a psychological evaluation was carried out by Dr Simon Kennedy at the request of your solicitors. His report outlines the difficult history that you have had and identifies that you have dependencies in relation to both heroin and cannabis as well as a substantial personality disorder with borderline and anti-social features. Importantly for your future, Dr Kennedy has concluded that you require intensive substance abuse treatment over two to three years as well as long term treatment with a clinical psychologist to deal with your problems.
Conclusion
This is a very serious offence. To participate in dousing another human being with fuel which is then ignited is conduct which, no matter how mitigating the circumstances, is to be condemned. You and others must be deterred from such conduct even though the consumption of drugs may substantially explain why you did what you did. I do however particularly take into account the fact that, as Mr D’Arcy very fairly submitted, the role you played in this matter is significantly less than that alleged to have been played by the accused man Mr Rossi.
It is extremely fortunate that Mr D’Amore’s injuries were not more serious than they are; his willingness to maintain a relationship with you and your family is very much to his credit and your good fortune. In addition to the seriousness of the offence, you have prior convictions for offences some of which are significant in sentencing you for this matter.
I do regard your plea of guilty and your efforts to rehabilitate yourself whilst in custody as factors which demonstrate a desire by you to change your life and your efforts are to be applauded. I hope that you follow the advice of Dr Kennedy when you are released and continue the treatment you so obviously need to fully make those changes not only for your benefit but also that of your children and the rest of your family.
The maximum penalty for this offence is 20 years’ imprisonment which reflects the serious view the community takes of this kind of conduct. In the course of submissions, the prosecutor Mr D’Arcy submitted that a head sentence to be imposed on you should be between seven and eight years and with a minimum term between five and six years. In my opinion, given your plea, your significant rehabilitation whilst in custody, your present family and personal situation and the very limited role you played in the offence I regard that range as too high. In my view the appropriate sentence to impose on you in relation to these matters is a sentence of five years’ imprisonment. I consider that you should serve a minimum period of three years and six months before you are eligible for release on parole.
Serious violent offender
Pursuant to s 6B of the Sentencing Act you fall to be sentenced as a serious violent offender. That is because the offence to which you have pleaded guilty is a relevant offence for that determination and you have a prior conviction for making a threat to kill for which you were sentenced to a term of imprisonment.
The consequences of sentencing you as a serious violent offender are that I must consider whether it is necessary to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If I am of that view, I may impose a sentence longer than that which is proportionate to the gravity of the offence. The prosecutor does not urge me to come to that conclusion, and it would appear from the material which has been put before me on your behalf that the protection of the community from you is likely to be more effectively achieved by the rehabilitation which you have commenced during your time spent in custody. I therefore do not propose to impose a sentence longer than that which is proportionate for that purpose.
Kim Emery, for the offence of intentionally causing serious injury, I sentence you to five years’ imprisonment. I will fix a period of three years and six months to be served before you become eligible for parole.
Pursuant to s 6C of the Sentencing Act 1991 you are sentenced as a serious violent offender and I direct that that fact be entered in the records of the Court.
Pursuant to s 6AAA of the Sentencing Act, I indicate that, but for your plea of guilty, the sentence I would have imposed would have been a head sentence of seven years’ imprisonment with a minimum term before eligibility for parole of five years’ and six months.
I declare that your pre-sentence detention is 555 days including this day and I direct that that be entered in the records of the Court.
I will make the disposal orders and retention of forensic sample order as requested by the prosecutor.
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