R v Pamela Saltmarsh
[2013] VSC 203
•1 May 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 163 of 2012
| THE QUEEN |
| V |
| PAMELA SUZANNE SALTMARSH |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 April 2013 | |
DATE OF SENTENCE: | 1 May 2013 | |
CASE MAY BE CITED AS: | R v Pamela Saltmarsh | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 203 | |
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Plea of guilty, handling stolen goods, theft, perjury – physical disability - depression.
Sentence: 1 month on each charge – 1 week cumulative – total 5 weeks – suspended for 1 year.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose S.C. | Office of Public Prosecutions |
| For the Accused | Mr D Glynn | Gallbally & O’Bryan |
HER HONOUR:
Pamela Suzanne Saltmarsh, you have pleaded guilty to one count of handling stolen goods, one count of theft and one count of perjury. You are 60 years old, having been born on 12 October 1952. You have a number of prior convictions from 1975 through to 1996, seven in total, all at magistrates courts, all relating to either theft from a shop, theft by deception or obtaining financial advantage by deception. For those offences you received sentences of either good behaviour bonds, community based orders or low level fines.
Your offending in this matter is connected to the offending of your son Darren Saltmarsh, who is currently 35 years of age. Darren has resided with you for most of his life. Your son has pleaded guilty to a number of offences and has been convicted of others that relate to the kidnapping of Anjana Gurung, a Nepalese student who was residing, studying and working in Australia, with an attempt to extort money from her family in Nepal. He pleaded guilty to extortion, false imprisonment, theft and other offences but disputed the charges of kidnapping, attempted murder and threat to kill Anjana Gurung and was convicted by a jury of attempted murder and kidnapping, the charge of threat to kill being a directed acquittal.
Your role in respect of this was to attend the bank and obtain money from the account of Ms Gurung, although I must stress it was not at any stage alleged that you were aware that Ms Gurung had been kidnapped, held or imprisoned by your son Darren during this time. When you son was arrested by the police on 20 October 2011 and Ms Gurung was rescued, you made a statement to the police which you signed and acknowledged in accordance with s 112(1)(b) of the Criminal Procedure Act 2009. In that statement you informed the police about what you claimed was the contact you had with your son during the time of Ms Gurung’s false imprisonment.
You admitted on 17 December 2011 that you had told lies to the police in the earlier statement, those lies being told in an attempt to protect your son from the consequences of his offending.
In relation to the offence of theft and handling, the circumstances relating to that are that your son Darren took from Anjana Gurung her credit/access card, he forced her to provide him with the pin number for that card and shortly thereafter you attended at the bank in Narre Warren. You had been given the card in the name of Anjana Gurung and the pin number of Miss Gurung by your son Darren that evening and he instructed you to withdraw $800 and to deposit $400 of that amount into his account which was able to be accessed by his wife in the Philippines and you kept the balance of the money yourself, being some $400.
You admitted to the police in your record of interview that you had contacted your son by phone after you had withdrawn the money and said the words ‘yeah it worked’ telling him that you were successful in obtaining money from that account. You informed the police that you had dropped off a phone recharge card for Darren at the home of his father where he was then staying, as well as ordering a pizza delivered to him the next night. You returned the key card to your son Darren Saltmarsh. They are in very brief compass the circumstances of your offending.
Your assistance to Darren Saltmarsh was of value to him, certainly in respect of the handling of the credit card, the obtaining of the money and placing it in his account. Your false statements to the police did not do much to assist him, but your intention certainly was to assist him to provide false information to hamper both the investigation and the prosecution of Darren. They are considered serious offences, but are certainly not offences at the highest level, and were it not for your son’s charges could have been dealt with in the Magistrate’s Court. In terms of the perjury, it is a low level perjury and one unlikely to succeed for any period of time. Assisting your son as you did with the handling and theft charges though are more serious.
Your personal circumstances are that you are now a 60 year old woman, divorced and the mother of three children: two daughters and your son Darren to whom I have already referred. You have the support of your daughters and one , Tracy Saltmarsh, has written a character reference for you, which I have examined and it is Exhibit 6. There are two other character references which have been provided to the court. The first from Glen and Sue Cain who have been your neighbours for some 14 years and the other from Christy Johnson, a friend of your daughter Tracy, who has known you in excess of 20 years. All of them refer to you as a lovely, kind, caring woman, gentle, trustworthy and loving towards small children, including your own grandchildren, neighbour’s children and pets within the area. All of them are aware of this offending and they talk about the shame and remorse that you have demonstrated over the time since this offending occurred. Christy Johnson finishes her reference by saying:
I would like to state that under no circumstances do I believe these charges to be a fair and accurate representation of the beautiful lady, Pamela Saltmarsh, the woman I have known and respected for over 20 years.
One of the matters included in your daughter’s reference was the following statement:
The stress of the last two years has impacted on her health, her balance and walk is getting worse and she gets things confused easily. Stress is not a good thing with her illness and it is hard to watch her deteriorate because of this matter hanging over her head. My Mum is not a bad person and made a terrible mistake, please take this into consideration when making your decision.
It would appear from the materials presented during your son’s plea that you and your daughter have perhaps done the same thing, you have been a little too indulgent towards Darren and that in the long run has not been good for you or him. That is a matter I will deal with a little later. Looking at your circumstances, you are physically afflicted with multiple sclerosis, which was diagnosed first in 1987. You have what is described as relapsing-remitting multiple sclerosis, and have been unable to work since the diagnosis was made in 1987 with mild spasticity in your lower limbs, which affects your mobility. According to the report dated 12 March 2013 from Dr Saman Gardiya Punchihewa, consultant neurologist and electromyographer, your current neurologist since October 2010:
She described paraesthesia in the distal lower limbs, mostly burning in character. On nerve conduction study of the lower limbs, there was no evidence of significant large fibre neuropathy. She also had repeat MRI scans in 2010 and 2011. There were minor progressive changes on the MRI scans and clinically there was slow but mild progression. After further discussion, her treatment regime was changed from Copaxone injections to Gilenya. Currently her disease is stable. However she requires ongoing follow up with repeat MRI scans, ophthalmological follow up and fundi assessment, as well as clinical monitoring to monitor the disease process, as well as side effects of the medication. She has a background diagnosis of depression, with variable mood. There were significant psychosocial concerns noted on a number of occasions when she was seen in the clinic. Some of the symptoms were related to social issues at home related to her son. I have not been involved in the management of her depression to a significant extent during the neurological consultations.
There is no doubt, having seen you in court, that you have a significant physical disability and it would undoubtedly make your time in prison much more difficult than for a person who was able-bodied.
In terms of your personal circumstances, you currently reside with your daughters in Endeavour Hills. Your father died some eight years ago, your mother is still alive and in aged care. Your father was loving towards you but abusive towards your mother. You have two sisters, one of whom has Parkinson’s. You describe a childhood of sexual abuse by your paternal grandfather, which I accept as having occurred. You married when you were 19 years of age and you met your husband through your babysitting work in relation to your then boss. Your husband already had two children; two girls aged 2 and 3 at the time that you married.
Your ex-husband was abusive, possessive and jealous and a compulsive gambler. Your prior offences of various charges of theft, theft from shops and obtaining by deception relate to the fact that you had insufficient money for food and clothes for the children, but you were unable to leave your husband. It was only the assistance of a police officer, the informant in your last theft matter, in 1996 who placed you in contact with a refuge that allowed you to finally leave your husband.
You worked all of your married life until you were diagnosed with multiple sclerosis when you were around 35 years of age and you have been unable to work since that time. Your particular problems are your leg strength and your balance as a result of the MS and some other personal health issues. You commenced drinking at around about the age of 15 and drank consistently after you married to deal with the abuse and because of your total abhorrence of sex with you husband. You stopped drinking six months after you separated from your husband and you no longer consume alcohol at all.
You joined a domestic violence support group at Doveton from about 1995 and you stayed with them until about the end of 1997. You moved into a house in Endeavour Hills, a rental property, and you still live in that same property. It is no longer a rental as your daughters, Tracy and Michelle, purchased the home when the landlord was considering selling the property and evicting you. You have their support and you are fortunate, they are obviously caring daughters and have provided you with some real stability, both Michelle and Tracy have moved into the house together with Michelle’s younger son.
I have received a psychological assessment report from Dr Michelle Wauchope, which I have read but not found to be of great assistance. It was lengthy, remarkably general in some aspects, as though all persons who have particular problems will react in only one way, and went beyond what the independent witness rules would permit. I am prepared to find that you have had a difficult life with multiple traumas occurring during your childhood and into your marriage. I will refer to one of the passages contained within it, but I also need to indicate that it contains far too much supposition and commentary upon the charge for me to rely upon it fully and I will act only upon aspects of what it contains:
For example, in this case. When you consider that Ms Saltmarsh has had a childhood whereby she was exposed to physical, emotional and verbal abuse by her father towards her mother, watching her mother submit and be docile, subservient, passive, obedient, and motivated to please; and further, a significant part of her adult years being exposed to physical, emotional and verbal abused (sic) by her husband herself; whereby it is quite normal for victims of abuse to do exactly what they are told to do because the reality is that they have been trained to do so as a result of years of abuse, and they fear the consequences; then, in my view, her actions in doing what her son told her to do, especially if he has learned to control and dominate like his father, which is often inevitable in violent families; then it becomes understandable, whereby on the basis of a lifetime of conditioning, she simply did what she was told.
Your son Darren has borrowed money from you and your daughter over a period of time, and not been made to repay what he owes. He is the only son, and has been clearly indulged by you his mother, and also by his sisters. That is what ultimately brings you before the court, your indulgence of him, as you, with no questions asked, withdrew money from an account that you knew was not his, and with the expectation that it was illegally obtained, you placed half of that money into his account and half you kept for yourself, as part of what he owed you. You had been to court often enough to understand that what you were doing was stealing money that belonged to someone else, and also you were aware of how wrong it was to do that. Despite your many health problems, both physical and psychological, you knew you should not have accessed this bank account and you have no real excuse.
In imposing sentence in this case, there are a number of matters I have to take into account. They include your plea of guilty, the stage at which it was made, the length of time since any prior offending and the circumstances relating to the prior offending, your prospects of rehabilitation – which, I find to be moderate to good, the level and nature of the offending, which were it not connected to your son’s behaviour, would have ordinarily been dealt with in the Magistrates’ Court, your depression, your physical disabilities and your demonstrated remorse. All of this needs to be balanced with the other factors that need to be considered, including general deterrence, which is significant in this case, personal deterrence, which in my view has a more limited application, denunciation, just punishment and the imposition of an appropriate penalty.
Taking all those matters into account, I have determined that in respect of Count 1, the count of handling stolen goods, you will be convicted and sentenced to one month imprisonment; in respect of Charge 2, the charge of theft, you are convicted and sentenced to one month imprisonment; and in respect of Charge 3, the charge of perjury, you are convicted and sentenced to one month imprisonment. I direct one week of the sentence on Charge 3 is to be served cumulatively upon the sentences imposed on charges 1 and 2, making a total of 5 weeks imprisonment. Further, I direct that all such sentences are to be suspended for a period of 12 months from this date.
Pursuant to s 6AAA, I declare that but for your plea of guilty the sentence imposed in respect of each of the offences would have been six weeks imprisonment with two weeks of the sentence on Count 3, perjury, being made cumulative on Charges 1 and 2 making a total of two months imprisonment suspended for a period of 12 months.
Restitution Order to Anjana Gurung in the sum of $800 dollars granted.
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