R v Palmer
[2019] VCC 519
•11 April 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTIONCR-19-00149
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CODY PALMER |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 4 April 2019 (Plea) |
| DATE OF SENTENCE: | 11 April 2019 |
| CASE MAY BE CITED AS: | R v Palmer |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 519 |
REASONS FOR SENTENCE
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CRIMINAL LAW – SENTENCE – Early Plea of Guilty – Aggravated burglary – Criminal damage – Two charges of threat to kill – Summary charge of possess controlled weapon – Youthful Offender – Aggravated Burglary – Criminal Damage – Threat to Kill – Possession of a Prohibited Weapon - No Prior Convictions – Rehabilitation – Sole carer for infirm parent – Significant steps towards rehabilitation – Genuine Remorse– R v Mills [1998] 4 VR 235; Boulton v the Queen [2014] VSCA 342; Bradshaw v the Queen [2017] VSCA 273 applied – Crimes Act 1958; Sentencing Act 1991.
CRIMINAL LAW – SENTENCE – 2 year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr M. Habib | Docherty Legal |
HIS HONOUR:
Introduction
1Coby Palmer you have pleaded guilty to one count of aggravated burglary, maximum penalty 25 years' imprisonment, one count of criminal damage maximum penalty ten years' imprisonment, two counts of making a threat to kill, maximum penalty ten years' imprisonment, and to a summary count of possessing a prohibited weapon without excuse, maximum penalty two years' imprisonment and/or 240 penalty units
Circumstances of offences
2The circumstances of the offences were set out in the Crown opening which was read in open court on 4 April and which I incorporate by reference. In brief outline the offending occurred on 19 September 2018 at a residential address where the complainant’s Lachlan McLeod and Kim Baker were living.
3A few days earlier you had obtained two morphine tablets from Baker who had been prescribed them for pain due to an illness. You gave one of the tablets to your father has pain issues and kept one. Later Baker thought better of giving you the tablets and wanted them back. She went to your house and spoke to your father and he returned the one tablet he had. You went around to her house later that day and she returned the second tablet, but you were angry about returning it. After that incident you sent her and McLeod, with whom’ he was living at that time, threatening messages and Baker apologised to you.
4On Wednesday, 19 September you were working in the car wash at the Market Place shopping centre. Late in the afternoon Baker went to the car wash to see you and speak to you about the situation and in particular the threatening messages that you had exchanged with McLeod. On seeing her at the car wash you walked out of your job and drove past her a number of times and starting asking, "Where was Lachlan McLeod?." You also called her on her mobile phone and made threatening messages to her, saying words like, "You dog, I'm coming. You better keep that little junkie head low, you fucking dog". The tone of the messages were such that Baker, fearing for her safety went to the Bendigo police station.
5You were also calling McLeod and making threats to him saying that "he's coming to kill you. You're fucked, Kim's fucked, there's going to be ten litres of blood spilt. You're all fucked". McLeod asked, "What did I do?" but you hung up without replying. These exchanges with McLeod constitute Charge 3 of making the threats to kill.
6At about four o'clock that day you left Baker a voicemail saying, "Hey you dog, I'm coming. You better keep your little junkie head pretty fucking low, you dog". At 4.15pm you arrived at the house that Baker and McLeod were living at and only McLeod was home at the time. You then proceeded to kick the front door, damaging the security door and the main door behind it. You could not get in with the front door. You moved to the external door that led to her bedroom, kicked the door repeatedly until it was severely damaged to gain entry. These are the events that constitute Charges 1 and 2, aggravated burglary and criminal damage to the door.
7You went inside the house and then had a conversation with McLeod asking "Where was Baker? Where is she? I'm going to fucking kill her. You need to get the fuck away from her. You know I'd never hurt you but you need to keep away from her, I'm going to kill her". You again left a message on Baker's phone saying, "You junkie, come here. Come on, show your face, come one". You walked outside and were told to leave the house by McLeod. You then said to her, "I'm going to go to gaol for this. When I find her, she's dead". You also said, "She's fucking dead, I'm waiting for her" and continued to make threats to kill Baker for a period of five minutes. These constitute Charge 4, making threats to kill.
8After about five minutes McLeod walked back inside, you followed him and you actually used your phone to record yourself. You were agitated and again were making various threats and shouting almost unintelligible comments including "Man, the fucking door won't even shut, bro, what's going on here? What I told you, you fucking junkie, I told you to get inside". You were pushed out by McLeod at the door and said, "I'm waiting for her, she's fucked". You left the address sometime after.
9Later in the afternoon, 5:15pm, you texted a message to Jessica, a friend of yours, saying "Kim's fucked". You went on to say that you believed and found it distasteful that Baker and McLeod were in a relationship and believed they were using drugs together.
10You then also contacted your father later that day and sent him a Snapchat video showing McLeod calling the police. Police arrived at your home at 9.20pm and arrested you. You told them that you had been embarrassed thinking that Baker had been talking behind your back at the car wash. You said to the police you thought you should also look for a new job. You agree you had driven past Baker. You said that you had gone there to tell Baker, to her house, to "pull her head in and keep away, effectively, from McLeod". You denied making threats although in the record of interview, as time moved on, you virtually made admissions that you made various threats and that you had kicked the door in.
11You also, at one stage, said that you did not think you had threatened to kill anyone but then you also say that you believed, 50 per cent, you had intended to cause fear. So there were partial concessions in the record of interview or admissions.
12The police executed a search warrant at your premises the next day and found a knife in a safe in your bedroom and then three other knives that were the subject of the summary charge of possession of a prohibited weapon. You were remanded in custody and spent 14 days in a number of adult gaols around the State.
Seriousness of the offending
13Your counsel did not dispute the seriousness of the offending here. It has all the hallmarks of an immature response to a perceived grievance with the female complainant and interference by you with her relationship with your friend, McLeod, and a misguided attempt to interfere with that relationship. You really lost it as a result of the attendance of Ms Baker at your employment and then the matters went downhill from there leading to your attendance at the property and the forced entry, all the while making violent, verbal threats to McLeod relating to him and Baker.
Victim impact statement
14A victim impact statement on behalf of the complainant, Baker, was filed. She indicates that your offending has had a significant impact on her. She does not feel safe at home and she has withdrawn herself from her social circles. She has had to have her mother assist her to rebuild her life. She has been placed on antidepressants and she is medicating with alcohol. She lives in fear and she wants you to understand the significant impact that you’re offending has had on her.
15Looking at the victim impact statement, it is clear that your offending has had a significant impact on her and that is a matter to be taken into account in sentencing.
16There was no victim impact statement from McLeod but obviously the threats that you made to him about dealing with him and Baker must have also had a significant impact on him.
Matters in Mitigation
17Your counsel put a number of matters in mitigation to me.
18First your counsel emphasised your youth. You were 18 at the time of this offending and you are now just over 19. You have no prior convictions and have not been caught up in the criminal justice system previously. You lived with your father and were raised in the Bendigo area by your parents who separated when you were 13. You are the youngest of three siblings and are estranged from your brother and sister, but are working towards reconciling with your sister. You went to a local college until Year 10 and then to Bendigo TAFE where you completed Year 11 and 12 equivalent. You began working when you were 15 and worked first as a butcher for three years and then you commenced a painter's apprenticeship but had to stop that due to an injury. According to the Youth Justice assessment, you have had short periods of work and at the time of this offending had been working in the car wash for about two weeks.
19In terms of other matters in mitigation, your counsel put first that you have pleaded guilty at the first opportunity. This has obviated the need for a committal and for the complainants in the matter to give evidence. You are entitled to significant benefit for the utilitarian value of the plea and it is an early plea.
20Next, there is the issue of remorse. Your plea is evidence of remorse. I am satisfied on the evidence of Mr Moore that you have expressed remorse for your offending. This is also confirmed by Mr Logan the behavioural psychotherapist that you have been seeing since release on bail.
21The CISP report indicates that in the period since engaging with that organisation you had shown insight and been positive in seeking to turn your life around and avoid further offending. Thus you have insight, which for a young offender is very important.
22Moreover, the Youth Justice Pre-Sentence report records that you presented as honest and open with regards to the offending before the court and the circumstances that brought about the offending. It records that you have recognised that your behaviour was wrong.
23It is also noted that your main concern was for your friend McLeod’s direction in life after taking up with Ms Baker, who you believed was using drugs. You also asserted that there were threats to your house and father. The report indicates that you have reflected on your behaviour and have articulated clearly that what you had done was wrong. Further, the report indicates that the short time you had on remand, the 14 days, you found very intimidating and frightening. The report indicates that you are very close to your father, and you have been living with him. You are mutually supportive of each other and he has had his own problems with various medical conditions.
24You are unemployed at the moment but you have engaged with Mr Moore of the Second Chance program to find employment. Your last place of employment was with a car wash which ended, really, on the day when you abandoned your work and were arrested for this offending.
25Since release on bail, you have engaged the counselling servicers of Mr Mark Logan through a Mental Health Care Plan with your local practitioner, to address past family trauma, anxiety and anger. You have attended at least five sessions. He reports that you have found the sessions beneficial in reducing your reactive anger and that you have attended your GP and sought a further referral.
26You have reported a history of using illicit substances, particularly cannabis, since you were around 15 and your current use is occasional and you are currently with the Salvation Army Bridge Program to address that issue.
The evidence of Mr Chris Moore
27After you were released from 14 days on remand in adult prisons you were inducted into the CISP per program and referred to the Second Chance Program at Bendigo and supervised by Mr Moore who gave evidence on the plea. He indicates that you have successfully engaged with the program and are remorseful and grateful for the opportunities that you have been given. He opines that this offending was out of character and took you personally by surprise. He has also engaged with your father. He is of the opinion that you have a lot of potential and you are more self-aware than many of the other young people that he has been involved with.
28You have insight in that you realise you need assistance and are prepared to accept that assistance. He regards you as being very high on a spectrum of your potential. He found that you are unlike a number of other young people that he was involved with, in that you have more education and are not involved with other criminogenic activity such as drugs and gangs, and inhabiting the wrong places around this town.
29He found that you have engaged in a most positive way and accept the need for help and had been punctual in turning to appointments. He also found that you have a good attitude to your own father as well as a good attitude to work and that while you have your problems you also have potential.
30I regard the evidence of Mr Moore, who was tested under cross-examination as to his qualifications and experience, as being of significant assistance in assisting the court in sentencing you. His evidence supports a conclusion that you have taken the opportunity to advance your rehabilitation in the period since release on remand. He found you have significant protective factors available to you including your relationship with your father, your attitude to work and your insight into your need for assistance.
31His confidence in your insight and your prospects of putting this behind you is confirmed by the Youth Justice Centre report which assessed that you have a good prospect for rehabilitation given your positive engagement with the relevant services since being placed on bail.
Sentencing submissions
32The central issue on the plea was whether, in circumstances of this serious offending, considerations of your rehabilitation should be the primary focus. As you are a youthful offender, rehabilitation is always to be emphasised, as in the case of Mills[1].
[1]R v Mills [1998] 4 VR 235
33Your counsel, relying on the case of Boulton[2], submitted that notwithstanding the seriousness of the offending here, a Community Corrections Order was the appropriate sentence. He noted features of the offending that did not have the aggravating feature often seen, namely that you were armed, that an assault actually took place, you were not in company, it was daylight offending, and it was not the subject of extensive premeditation. Effectively he put that you had flown off the handle.
[2]Boulton v the Queen [2014] VSCA 342
34He then referred to a number of decisions that are attached to the Court of Appeal case of Bradshaw[3] where, for offending which he submitted was more serious, a community corrections order was imposed, particularly for youthful offenders. Thus he submitted that such a disposition was in range under current sentencing practices.
[3]Bradshaw v the Queen [2017] VSCA 273
35The learned Crown prosecutor submitted that this was serious offending but conceded that you were a young offender and are to be treated as such. He noted that you have no prior convictions and that your offending had been such that you had effectively jumped in at the deep end in terms of seriousness. He indicated that it was appropriate to have regard to your prospects of rehabilitation and that a lengthy community corrections order would be "just" within range. He submitted that if any additional custody was to be ordered, then it should be by way of a Youth Justice Centre order. He submitted that adult imprisonment would be a step too far. He agreed with your counsel's submission that the period of 14 days in adult remand would have weighed very heavily on you as a young person in custody for the first time.
Purposes of sentencing
36 The basic purposes for which a Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, 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 victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
37 Weighing the competing considerations in this case is not without difficulty. The Court of Appeal has said in a number of cases that the offence of aggravated burglary must be met with heavy sentences. Thus general deterrence is a considerable factor. On the other hand your youth is a factor that I must have very strong regard to. This reduces the weight to be given to general deterrence and increases the weight to be given to your prospects of rehabilitation. The fact that you are a first offender is a matter to which I must give significant weight. While the underlying reason for this offending appears to be anger management, it is something of a surprise that you have not been before the courts previously. Thus there is something in the opinion of Mr Moore that this offending is out of character.
38 I give significant weight to his opinion that he regards you as having good prospects. He is well experienced to provide that opinion and has confidence in you. Significantly since your release you have interacted positively with the CISP program, the Second Chance program and the behavioural psychotherapist, Mr Logan, as well is commencing an alcohol and drug program.
39 All these matters indicate that in the period since your offending you have gained insight into the underlying cause of the offending and have taken action to address those matters. While it is early days they do provide a basis for the opinion that your prospects of rehabilitation are good. This is confirmed by the Youth Justice Centre report.
40 I have carefully considered whether it is appropriate to order a period of detention in a Youth Justice Centre as an alternative to a Community Corrections Order. Your good response since being released on bail, the insight that you are developing and your willingness to explore matters that will assist you to put this event behind you, combined with the no doubt salutary experience of 14 days imprisonment on remand in adult prisons, and your lack of prior convictions lead me to the conclusion that it would not be in the community interest that your path to rehabilitation should be interrupted by a period of detention.
41 You really are at a fork in the road in your life. I see a period of detention in a Youth Justice Centre as impeding your progress to resuming your law-abiding life and developing into a productive member of the community. The opinion of Mr Moore that this is an out of character act leads me to focus on your rehabilitation notwithstanding the serious impact that the offending has had.
42 I am therefore propose to place you, as an aggregate sentence, on a Community Corrections Order for a period of two years. The order will have conditions that you undertake programs as directed for drug abuse, for the behavioural programs in relation to anger management, and for your mental health and that you be under supervision of the case manager. You will also be required to undertake 150 hours of community work.
43I have prepared the order and I will hand it down and I will ask counsel to carefully explain it to you and then I will resume in a few moments.
44MR HABIB: As the court pleases. May I be excused from the Bar table?
45HIS HONOUR: Yes.
46(Short adjournment.)
47MR HABIB: Your Honour, I've taken my client through the conditions of the order and he expresses his understanding of the same.
48HIS HONOUR: All right. Mr Cordy, were there any ancillary orders?
49MR CORDY: Yes, Your Honour. There was the 464 application, Your Honour. I make application for the 464 sample and also a forfeiture order for weapons seized.
50HIS HONOUR: Yes.
51MR HABIB: Your Honour, my client does consent to both of those ancillary orders.
52HIS HONOUR: All right. Would you please stand, Mr Palmer?
53As I indicated in my sentencing remarks, you are at a fork in the road in your life and you are 19. I have given you the benefit of your youth and your lack of prior convictions and I have adopted the confidence in you that has been expressed by Mr Moore. I do not want you to let him down and I do not want you to let me down.
54So I am giving you two years on a Community Corrections Order. You have got, as your counsel has explained to you no doubt, you have got, as an aggregate sentence. You have got to down there, within two business days. They will be waiting there for you to be inducted and for two years you are under the supervision of the delegate. You have got to tell them about your changes of address, you have got to turn up when they require a supervision order, supervision meeting and you have got to continue whatever programs that they put you on or that you are currently on for the issue of your mental health, your drug use and your anger management.
55In addition to that I have ordered that you do 150 hours of community work. Now they will allow you to offset that against counselling hours but that will just give you a bit of discipline. Turn up on Saturdays to do some community work to clock up that 150 hours. Mr Moore's indicated that you have got a work ethic and for a person of your age, particularly you have got your Year 12 equivalent, so you are in a better position than a lot of your peers around Bendigo, and you should be in the workforce if you can at all possible. Get into the workforce.
56Now if you breach this order you will be brought back in front of me and I might even make a special trip up to Bendigo and you might be doing some time. Do you understand that?
57OFFENDER: Yes, Your Honour.
58HIS HONOUR: That includes re-offending. So for two years you are on a good behaviour bond. So if you commit a crime carrying a term of imprisonment in the next two years, that breaches the order and you can be re-sentenced.
59I declare that if you had not pleaded guilty I would have given you a two year Youth attendance order under s.6AAA of the Sentencing Act.
60Now the prosecution have sought a Forfeiture Order of those knives. As I said to your counsel, really, you know they are illegal, so they are to be forfeited to the Crown and pulped and the prosecution have also sought a forensic sample from you, a mouth swab sample. You have got 28 days to turn up at a police station to provide that sample and the documents will be given to you about that and I will sign those papers in chambers.
61The police can use reasonable force if you do not consent to provide that sample, do you understand that?
62OFFENDER: Yes, Your Honour.
63HIS HONOUR: All right.
64MR CORDY: They're the matters, Your Honour.
65HIS HONOUR: All right yes. Yes thank you, Mr Cordy and thank you, Mr Habib.
66MR HABIB: Thank you, Your Honour.
67HIS HONOUR: I thank also Mr Moore and the officer from the Youth Justice Centre for his report which I found to be of great assistance. So thank you for that. All right, well I will stand down temporarily.
68MR HABIB: As the court pleases.
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