R v Palmer

[2019] NSWDC 772

District Court

New South Wales

Medium Neutral Citation:	R v Palmer [2019] NSWDC 772
Hearing dates:	01 October 2019
Date of orders:	01 October 2019
Decision date:	01 October 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of three years, six months with a non-parole period of 2 years: at [42].
Catchwords:	SENTENCING — Aggravating factors — Breach of conditional liberty — Use of violence — Use of weapon — Home of victim or any other person SENTENCING — Mitigating factors — Plea of guilty — Remorse — Rehabilitation SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Moral culpability — General principles — Form 1 offences SENTENCING — Subjective considerations on sentence — Health issues — Mental illness — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Bugmy (2013) 249 CLR 571 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Ersman v The Queen [2007] NSWCCA 161 R v Henry (1999) 46 NSWLR 346 R v Tuuta [2014] NSWCA 40 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Karl Palmer (Offender)
Representation:	Mr Herringe (Crown)   Mr Gibbons (Offender)
File Number(s):	2018/263948
Publication restriction:	STATUTORY NON PUBLICATION APPLIES in relation to the identification of a minor

Judgment

1. Karl Palmer (aka Karl Stewart), aged 27, appears for sentence having pleaded guilty to a count of robbery in company under s 97(1) of the Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment with no standard non‑parole period. To be dealt with on a Form 1 in the way suggested by the Chief Justice in the guideline judgment on these matters (Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146), is one count of stealing a motor vehicle, carrying a maximum penalty of ten years, and five counts of fraud, which also carry a maximum penalty of ten years. There is a related offence on a s 166 certificate of drive a vehicle never having had a licence, which carries a maximum penalty of $2,200.

2. As the Chief Justice said in Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146, taking into account the Form 1 matters involves the Court placing more weight on specific deterrence and the community’s entitled to extract retribution.

3. The offender has been in custody since 28 August 2018, but part of that time is referrable to a six month sentence for unrelated matters. It is agreed that in the exercise of my discretion, bearing in mind questions of totality, the commencement date of a term of imprisonment lies in the range of 28 August 2018 to 27 February 2019. It is conceded by Mr Gibbons for the offender that a term of imprisonment is required and it is unnecessary for me to consider any alternatives in carrying out the sentencing process, which must be done in accordance with s 3A of the Crimes (Sentencing Procedure) Act 1999.

4. It is agreed that as a result of an early plea he is entitled to a 25% discount on the term of imprisonment for the utilitarian value of that plea. He was on bail at the time of committing the offence which is to be taken into account as an aggravating factor given that he was on conditional liberty at the time.

5. The co-offender BP, aged 16, was dealt with in the Children’s Court for robbery in company and received a probation order for 12 months without recording a conviction. However it is agreed that no real question of parity arises here particularly bearing in mind the principles summarised in Ersman v The Queen [2007] NSWCCA 161.

6. The agreed facts show that the three offenders involved were Mr Palmer, the young person BP and a third unidentified person. Palmer is taller and older than BP. The unidentified co-offender was a male about 16 years old, short to medium height wearing a cap. The victim Mr Mealia is 46 years old and lives alone at Springfield. He owns a blue Holden sedan and suffers from an acquired brain injury and is intellectually delayed. BP had known him for about three years and was aware of his disability.

7. On the night of Thursday 16 August 2018 BP contacted the victim who agreed to collect him from the train station and said that he was coming alone. The victim drove his car to Narara Railway Station and as BP got into the car two other unexpected people got into the car being Palmer and the unknown offender. The victim was worried about taking these people to his house, but BP told them it would be okay, so he allowed them to come into the house and they hung out there for a while. BP constructed a bong and the three of them took turns in smoking from it. Palmer asked to use the victim’s Apple laptop computer and the three offenders then used this laptop to watch sex videos.

8. The victim was seated with his back to the hallway and he was whacked on the side of the head by a wine bottle wielded by an unknown offender. The force of the blow knocked him out of his seat and onto the floor. It caused all his personal cards to fall out onto the floor. Palmer said to him, “I want you to write down your PIN, if you give me the wrong PIN I will come back and shoot you.” While that was occurring the other two offenders were ransacking his bedroom drawers. Palmer picked up his Commonwealth bankcard and helped the others rummage through the drawers. The victim made his way to the front door and the unknown youth yelled out, “He’s trying to run”. Palmer approached him with the wine bottle, and with a threatening voice said, “Where’s your car keys”. Mr Mealia did not answer. Palmer found the car keys and took the laptop computer and left the house, driving off in the victim’s car, with Palmer driving. The victim dialled triple-0.

9. During the incident the three offenders had stolen:

• the Holden Sedan;

• the Apple laptop;

• several bankcards,

• a Samsung mobile phone, valued at a thousand dollars; and

• a bottle of –“The English” single malt whiskey.

10. Police attended and the victim was taken to Gosford Hospital where he was admitted and underwent an x-ray, revealing broken bones to his right cheek and nose from the assault.

11. The fraud counts arise out of the use of the stolen bankcards by the offender at various service stations and fast food outlets, including $62 for fuel and cigarettes, $30 for cigarettes, and $20 for fuel, as the offender used the cards over the next short while.

12. Palmer drove the victim’s car at Springfield. He had never been a licensed driver and he was not exempt from holding a licence and that is the subject of the s 166 certificate matter.

13. Police obtained CCTV footage from each of the places where the fraud offences had been committed, and the car was eventually found burnt out on 19 August at Mayfield West.

14. BP was arrested at his home on 22 August 2018. Palmer was also arrested on 22 August 2018 at Raymond Terrace, wearing the same hat as in the CCTV footage. He participated in two interviews. In the first interview he denied all involvement in the offences. He then requested the second interview in which he agreed that he had gone to Springfield with BP and the other unknown co-offender. He claimed that he had never entered the house. He said that he drove the victim’s car away from the scene and admitted that he used the cards, but denied being involved in robbing or injuring the victim.

15. His criminal record commences with a matter in the Children’s Court in 2009 of assault occasioning, dealt with by probation. In 2015 there was a sentence of three years with a non-parole period of 18 months for robbery armed with offensive weapon. In 2018, he served a term of imprisonment of 9 months with a non-parole period of 6 months, for stealing a motor vehicle, as well as short, two month periods of imprisonment in 2018 for fraud. There is a record from Queensland not involving any prison sentences. It appears that he was in breach of parole following the 2015 offence as his custodial record shows him serving the balance of his parole of six months from 30 October 2017.

16. The discharge notes for the victim record that a CT scan showed multiple fractures involving a right maxillary sinus, right orbit and anterior maxilla. The photographs depict the expected consequences of the assault occurring during the course of the robbery.

17. The offender gave evidence and was challenged as to the history given to a psychologist Ms Huebner leading to a detailed report of 25 September 2019. His subjective case is that he was the middle child of three children, his parents separated when he was four years old, his mother’s new partner drank heavily and was physically and sexually abusive towards him The abuse began when he was nine and continued until he was 18, notwithstanding that Palmer alerted teachers and police to the abuse.

18. His father committed suicide when Palmer was 13 and he found his body hanging inside a shed. He said that that tore his life apart. His grief was exacerbated by his mother’s decision to prevent him attending his father’s funeral.

19. He then left home and spent a year in Queensland, then drifted around New South Wales, living on the streets until he was aged 21. While homeless his mental health further declined and he smoked cannabis to cope.

20. He commenced his first relationship when he was 18 years old and that relationship produced a son, now five and a daughter aged four, and twins, a boy and a girl, but the daughter was still born. The relationship fell apart because, as he acknowledged, he started spending time with the wrong people and using methamphetamines. He was only 21 when he was charged with the first armed robbery and when released in May 2018. He spent time with BP and relapsed into drug use. As Mr Gibbons submitted, he was behind the eight ball at birth because he was diagnosed with Klinefelters Syndrome or KS which is a genetic non-inherited pathology course by the alteration of the number of sex chromosomes in male subjects. Those with KS have 47 chromosomes due to the presence of a supernumerary X chromosome that influences sexual development, physical appearance, cognitive functions, motor and language development and social skills. It predisposes one to psychopathological risk. Behaviour can include hyperactivity, attention problems, impulsivity, aggression, mood stability and autistic traits. It might result in body image disorders, sense of isolation, shame, low self-esteem anxiety, socialisation problems and mood disorders, together with learning difficulties at school, mild cognitive impairment and feelings of distrust and lack of social integration.

21. A number of sufferers meet the criteria of anti-social behaviour disorder in adulthood. He describes himself as a loner during childhood and struggled to maintain friendships due to his aggressive acting out. He had problems reading and writing and he was expelled before he finished grade 7, because he threw a desk at his teacher and assaulted a police officer. He was then diagnosed with ADHD and prescribed Ritalin.

22. He completed some courses at TAFE. He also completed first aid training and a positive parenting program while in custody, and I have certificates of his satisfactory engagement in a number of programs while in custody.

23. His longest period of employment was three months in his mid-twenties when he worked as a landscape gardener; he has also been self-employed as a tattooist.

24. He was admitted to mental health unit at Brisbane Hospital at age 19 when he cut a wound into his chest because he felt that no one cared. A patient summary in 2015 notes the history of ADHD, Asperger’s Syndrome, KS and schizophrenia at the age 22. He was treated for PTSD and psychosis while at Long Bay and prescribed antidepressant, Avanza and a mood stabiliser, anti-psychotic Seroquel.

25. A custodial mental health referral form in 2018 reports a provisional medical diagnosis of schizophrenia, PTSD, polysubstance use and cluster B personality traits, being treated with Seroquel. He has a long history of substance abuse from age 13 including cannabis and methamphetamines. He attended a Salvation Army drug and alcohol program, but his drug use continued. He began using heroin when he was first incarcerated. He did the EQUIPS program at Long Bay when he was 23 and spent six weeks at Bennelong Haven, a residential rehabilitation program, on his release. His drug use continued and he reported a drug induced seizure for which he was hospitalised for 24 hours after taking methamphetamine, MDMA and LSD. He had also done an EQUIPS foundation program at Junee while in custody. Notwithstanding that, he continued using buprenorphine, which he acknowledged in evidence today, up until the last two months. Around the time of the offending he said that he was living everywhere and was essentially unemployed and using cannabis and methamphetamine with the other two offenders. A psychologist summarised a childhood history of deleterious influences including parental separation, exposure to drinking, physical and sexual abuse, placing him at risk of poorer quality parent/child relationships, lower intellectual achievement, childhood aggression, anti-social behaviour and mental health problems later in life.

26. The diagnosis of KS further exacerbates the impairments to which I have already referred. His academic difficulties accompanied by social emotional and behavioural deficits were exacerbated by his father’s suicide.

27. In summary he was a young man with a dysfunctional upbringing, cognitive limitations associated with KS, he developed severe mental health problems, including PTSD perceptual disturbances, polysubstance dependence and cluster B personality traits.

28. His risk of recidivism may be reduced by specific psychiatric and psychological intervention, and if he were to find stable accommodation and employment and avoid relationships with antisocial peers. It is common ground that his prospects of rehabilitation on the current evidence are guarded to say the least. However he did express what appeared to be a genuine desire to right his ways and stay off drugs and out of trouble, when giving evidence.

29. The psychologist diagnosed an intensive program of treatment and psychotherapy which I would recommend be pursued prior to and post release as described.

30. The Crown initially submitted that the diagnosis of schizophrenia should be treated with some scepticism, but in the light of the evidence of the offender adopting the history and the clinical notes from various New South Wales health facilities over the years, I am satisfied that that diagnosis was properly made by the psychologist. Mr Gibbons very properly highlighted both the positive and negative aspects of the bundle of clinical notes that he tendered. As far as one can tell from the notes the authors have been aware of the diagnosis of KS and schizophrenia is a frequently recurring theme in the notes. A referral of 13 April 2016 seeks advice on the basis that the doctor had been treating the offender for psychosis and PTSD. A patient health summary of May 2015 describes a past history of ADHD, Asperger’s, KS and schizophrenia, as does a set of clinical notes of 5 September 2018.

31. I also take account of the report of the Endocrine registrar, Dr Beach dated June 2016 which notes that Mr Palmer is hypo-gonadal and would benefit from testosterone replacement, and that given his previous psychotic episodes she would recommend a reversal of preparation such as Testagel. He said in evidence today that he was supposed to be on 1,000 milligrams of testosterone but he is unable to get this medication whilst in custody.

32. Mr Gibbons frankly concedes that, objectively, the principal offence is more serious than what he describes as the typical robbery contemplated by the R v Henry (1999) 46 NSWLR 346 guidelines. In summary, his position is that there is a very strong subjective case including genetic illness, mental health and cognitive concerns and a deprived upbringing that would allow for moderation of the otherwise appropriate penalty.

33. There is therefore little in dispute, and the Crown quite properly points in written submissions to R v Henry (1999) 46 NSWLR 346, leading to an assessment that this offence falls above the mid-range of objective seriousness.

34. The aggravating features which are not contested include the use of actual violence, the use of a weapon being a wine bottle, the offence being committed in the victim’s home and the offence being committed while on bail as I have indicated.

35. There is a limited expression of remorse. His plea of guilty is taken into account as a mitigating factor, and as I have indicated his prospects of rehabilitation are guarded at best.

36. The Crown does not submit that the offence is aggravated by his history of previous convictions but that in accordance with Veen v The Queen (No 2) (1988) 164 CLR 465 it disentitles him to any particular leniency. I take account as the Crown says of what the court said in Johan v The Queen [2015] NSWCCA 58, that a deprived upbringing in Bugmy ((2013) 249 CLR 571) terms must be balanced against the need to recognise the harm done to victims of offences.

37. I acknowledge, as the Crown puts, that I must not double count, that is take into account on special circumstances, matters that may have been taken into account in reducing the head sentence. As Bellew J said in R v Tuuta [2014] NSWCA 40 at [57],

In order for special circumstances to be made out there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful, and that this is not merely a possibility

38. In this case the offender’s evidence and the improved prospect of control of conditions of inadequate medication while on release are likely to improve his prospects of rehabilitation.

39. The Crown conceded that the Court could find on the basis of the evidence that the offender has a deprived upbringing which can be taken into account in Bugmy ((2013) 249 CLR 571) terms and acknowledged that his time in custody may be more onerous leading to a basis for a finding of special circumstances.

40. Mr Palmer said in evidence that he wished to relocate to Queensland where he has some support, but he acknowledges the prospect of him returning there before the expiration of his parole is slim. He says that he wishes to work and stay drug free and improve his lifestyle.

41. Factors to which I have referred suggest a reduction in moral culpability so that the offender is a less appropriate vehicle for general deterrence for someone without the difficulties under which Mr Palmer labours. The net effect of course is that in terms of DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 there should be some mitigation of the sentence that would otherwise be appropriate.

42. The orders that I will make are:

1. The offender is convicted of the offence

2. Taking into account the Form 1 matters, I impose a sentence of imprisonment of three years and six months commencing on 28 November 2018.

3. I impose a non-parole period of two years expiring on 27 November 2020.

4. I find special circumstances.

Section 166 certificate: 010 Drive unlicensed

5. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted of the offence and no further penalty is imposed.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 20 December 2019