STATE OF TASMANIA v KYE DOUGLAS GLENN PALMER 7 DECEMBER 2023
COMMENTS ON PASSING SENTENCE WOOD J
The defendant, Kye Douglas Glenn Palmer, has pleaded guilty to two counts of assault contrary to the Criminal Code. The charges concern his former partner, Hayley Dianne Caulfield.
The particulars of count one are that he slapped her to face, pushed her onto a bed, put his hands around her throat and squeezed, and then head-butted her to the head. The particulars of count two are that he wrapped a dressing gown cord around her neck and pulled it tightly, and head-butted her to the head.
The defendant pleaded guilty but disputed the particulars and other material facts. After a hearing at which the complainant gave evidence, I found the disputed facts proved and proved beyond reasonable doubt.
The crimes of assault were committed on 24 February 2020. The complainant and the defendant had been in a relationship since about April 2019 and began living at the defendant’s home at Back River Road, Magra. Their relationship had been deteriorating for some months and the defendant was verbally abusive on a frequent basis. He had become very jealous and paranoid that the complainant was being unfaithful and bringing men into the house. He would record and watch the complainant’s movements from an application on his mobile phone connected to the various CCTV cameras installed in and around his house. He would frequently confront the complainant about things he said he had seen on the cameras and ask her who she had brought to the house. The complainant repeatedly informed the defendant that she had not brought any men to the house.
They had a son born in late January. On the 14 February 2020, the complainant had enough of the defendant’s verbal abuse and took their baby son and went to stay at her mother’s house. She returned some 4-5 days later. The defendant had begged her to return and said he was going to shoot her horses if she did not, and that he had shot her dog. When the complainant returned to the property, her animals were unharmed. After about two days, the defendant became abusive and paranoid again.
At approximately 1:00 am on the 24 February 2020, the complainant was asleep and the baby was asleep in a bassinet next to the bed. The defendant was in his shed. For the next seven hours, she received abusive, threatening, and accusatory text messages from him, demanding to know who she had had at the property, some of which included:
“I’m prepared to go to jail for the next 40 plus years Hayley, B [son] will have foster parents cause you’ll be dead…you best fucking come clean I knew it was happening and if I have to belt and belt you until you take ya last breath I will”;
“Its starting to do my head in to the point I can’t think do u wanna see a psychopathic fuck smash and destroy everything in front of you I’ll turn your world upside down”; and
“Keep fucking lying to me and I’ll make the rest of your [life] complete hell”.
The defendant also came into the house regularly to wake the complainant and confront her about who had been at the house, before returning to the shed.
At around 8:00 am, the defendant once again came into the bedroom. The complainant was in bed wearing a dressing gown and the baby was sleeping in his bassinet. The defendant showed the complainant a video on his phone and demanded the name of the man he said had been in the house. The complainant stood up and responded, saying she could not give him a name as no one had been in the house.
The defendant slapped the complainant hard to the face twice. This knocked the complainant onto the bed. The defendant showed her the phone again and demanded she watch a video recorded by one of the cameras. He became frustrated when she maintained that she had had no one in the house.
Mr Palmer then pushed her down on the bed and crawled on top of her, placing a leg on each side of her legs. He then grabbed the complainant’s throat with both hands and squeezed her neck for a period. The complainant felt pain and struggled to breathe; and was unable to speak. The defendant then head-butted the complainant by striking her forehead with his forehead while she was lying down on the bed.
The defendant then told the complainant to go to the lounge room. The defendant followed her and, as he did so, he pulled the dressing gown cord out of the loops of the dressing gown the complainant was wearing. He put the cord around her neck and pulled it tight. The complainant thought quickly and put her fingers under the cord to relieve some of the pressure around her neck so she could breathe. The defendant moved her hand away and pulled the cord tighter. She could not breathe and felt as if she was losing consciousness. She said in her evidence before me that she saw stars. By this time, they were on a couch in the lounge room with the defendant on top of her, strangling her. The defendant was screaming at her, saying that her children would not see her again. He tightened and released and tightened the cord a number of times.
The complainant managed to get away from him but the defendant got on top of her on another couch, put the cord around her neck, and strangled her again. He held the cord very tight, while she struggled, was unable to breathe, and felt again that she was going to lose consciousness. While holding the cord tight, the defendant head-butted the complainant to the temple.
The defendant released the cord from around the complainant’s neck and the complainant repeated that she had had no one at the house. He said to her, “Why do you do this to me? You turn me into a monster”. He told her he hated being like this and that it was her fault. Again, he asked her for a name of who had been at the house and threatened to burn himself, the complainant, and the baby alive.
The defendant tightened the cord around the complainant’s neck a number of times in the lounge room, and there were occasions when it was extremely tight and she could not breathe.
The defendant asked the complainant to lie down with him for a sleep and said he was going to keep her phone for a week to see if anyone was messaging her. The complainant agreed to do this as she thought she might be able to escape from the house. Her stepfather visited the house while the defendant was asleep and she told him the defendant had hurt her and asked him to call her parents. At some point, Mr Palmer called his sister and she arrived at the house, and while the defendant was asleep, the complainant took the baby and went with Mr Palmer’s sister to her mother’s house. The complainant went to the police and the defendant was arrested soon afterwards.
The defendant was interviewed and displayed an obsessive attitude about someone having been in the house, and anger towards the complainant for not admitting it. He said the complainant kept lying to him but his cameras told him otherwise. He admitting slapping her once, and that it was “just a little tap” because she continually lied to him. He grabbed her by the mouth and made her look at him. He admitted he might have head-butted her because he was “pretty wild” and upset. He admitted threatening to burn them alive but said he would never do it, he just wanted a confession.
I have watched his interview on the disputed facts hearing. During my ruling, I mentioned that it could be seen that Mr Palmer felt justified in those admitted acts of violence. At times he was very agitated, and aggressive towards police. A significant level of paranoia was also apparent during the interview.
The complainant was examined by a forensic nurse examiner and the following injuries were detected: bruising to the right temple, left side of her jaw, right side of her neck and her right hand; abrasions to the left side of her jaw, neck, and lower lip; and petechiae present on both cheeks, the left ear, and right upper eyelid, caused by strangulation. Compression of the vessels of the neck gives rise to facial petechiae. Internally, her throat was painful; a consequence of the strangulation.
I have been provided with a victim impact statement from the complainant. She describes her panic and fear, and her thought was that she was going to die.
She has been adversely affected by the violence, and suffers ongoing symptoms and psychological and emotional harm requiring professional intervention and support.
These are very serious acts of violence carried out against a background of the defendant’s ongoing abusive and possessive behaviour. In the hours before the violence, the defendant’s agitation, aggression and sense of grievance was escalating. He had time and opportunity to remove himself from the situation but he did not do so. His moral culpability is very high.
His violence was motivated by a desire to punish, hurt, denigrate, and control the complainant.
The acts of strangulation are, on their own, extremely serious. These are acts perpetrated with the deliberate intention and purpose of terrorising the complainant, and they did. The defendant wanted her to believe that he would kill her, if he so decided. For a person to experience not being able to breathe and to believe that they may be about to die is a level of fear that is, in and of itself, a grave form of harm. Moreover, strangulation for even a short period of seconds is inherently dangerous and may cause severe injury or death. It is also likely to result in debilitating and long-term emotional and/or psychological harm. These factors bearing on the nature of the crimes must be reflected in the sentence.
I must also take into account Mr Palmer’s personal circumstances and the circumstances of his offending.
The defendant is 34 years of age. He has prior convictions involving breaches of a police family violence order, which included the sending of messages via social media to a different female complainant. The messages were abusive and threatening. The offending was dealt with by the Magistrates Court in January 2019 and attracted a conviction and fine. He has prior convictions for driving offences, including drive whilst disqualified or while licence suspended, which attracted a suspended term of imprisonment in 2008 and in 2018. In 2010, he was sentenced by the Cleveland Magistrates Court to a probation order with no conviction for assaults occasioning bodily harm whilst armed or in company. In 2012, he was convicted and fined in relation to a breach of a domestic violence order and possessing dangerous drugs. In 2017, he was sentenced in the Esperance Magistrates Court and fined for a breach of a police restraining order, an assault occasioning bodily harm, and some other offending including drug offences and breach of protective bail conditions.
He also has some offences which were the subject of an order imposed after this offending before the Court, and which resulted in a period of imprisonment of 8 months as an effective term, backdated to April 2021. These prior offences included firearms offences committed before the commission of these crimes, as well as afterwards when he would have been on bail for them, and other offending, including driving with an illicit drug in his system.
I note it is not apparent from his record that he has a history of violence towards females generally or any former partners.
Mr Palmer is Tasmanian Aboriginal but is not presently connected to the Tasmanian Aboriginal Centre or other organisations providing support. He had an extremely difficult early childhood. His mother’s former partner was an alcoholic and physically abusive and violent towards him. From 13 years of age, he was raised by his grandparents, and while he was not exposed to violence in that environment, he missed his mother and sisters. He has positive relationships with his mother and her husband and his two sisters. I note that the defendant has his mother’s ongoing support and I am aware of her ongoing support in terms of his bail and her attendance at Court.
The defendant found school challenging and was diagnosed with ADHD when he was in grade 3, however, he has sound literacy and numeracy skills. As a young adult, he worked in Queensland as a scaffolder and in Western Australia on fishing boats. He enjoyed hard work and had a strong work ethic. In 2016, he had a terrible and life-threatening accident while working on a commercial fishing boat, resulting in a leg amputation. Since then, he has not engaged in paid employment. His mother considers this incident to have impacted the defendant’s overall emotional functioning, and I have no doubt there has been a critical adverse impact on his life, requiring considerable adjustment and support.
As a result of a compensation payment, he was able to purchase his own home, which is the property where he and the complainant were living at the time of offending.
The defendant began using methamphetamine as a young person, and over the years his use has waxed and waned, depending on the status of his mental health. He also used cannabis. His use of methamphetamine increased after his accident, and he was heavily addicted at the time of offending, which manifested in paranoia and agitation.
The defendant has a history of mental health concerns. He has been diagnosed with bipolar disorder, schizophrenia, and post-traumatic stress disorder. He engaged in episodes of self-harm after his workplace accident and attempted to take his life in April 2022 when he was confined to his home on strict bail conditions. The defendant was hospitalised for almost 3 weeks at the Royal Hobart Hospital psychiatric ward, indicating he was acutely unwell at that time. This has resulted in him receiving attention for his mental health conditions, which is a positive development.
These mental issues will mean that the prison environment will be more difficult for him than others. I note that he has not been permitted his medication, despite his doctor informing the authorities of the need for this medication. I note that his prosthesis presents added difficulties, and will do so in prison, involving infections and wound management. He often experiences phantom pains relating to his amputation and he was prescribed medication for and taking it until his incarceration. I proceed on the basis that essential care and medication will be provided to him while he is in prison, but it will not be as optimal as if he was in the community and, given his range of needs, both physical and mental health, this will be felt by him.
The defendant was held in custody until 6 March 2020, when he was granted bail. He has spent 60 days in custody attributable to this matter, and from 19 October this year he has been remanded in custody awaiting sentence.
I note that he was on bail for a short period and then, as a consequence of allegations of a serious like matter, he was remanded in custody. I note that involves allegations of family violence but not against the same complainant. He has pleaded not guilty to that and it is presently before this Court. He served a sentence for summary offences and was admitted to bail on 22 December 2021.
When released on bail, the defendant was subject to very stringent conditions, initially akin to house arrest and with an electronic monitoring device, for a period approaching two years. I accept that these conditions represented a significant punishment. He lived in an isolated area on his own and he was someone who was then struggling with his mental health. While on bail and subject to these conditions, there have been no further allegations of family violence or contact with the complainant. The defendant accepts the relationship is over.
I take into account a number of other positive considerations. His drug addiction was effectively addressed by his incarceration and the enforced isolation at his home, resulting from the very strict bail conditions I have mentioned. I note, too, that he has undertaken and completed an alcohol and drug course while in custody, which gives me some confidence that he will be compliant with intervention if so ordered.
In a report provided to me from Community Corrections dated 24 November 2023, Mr Palmer is assessed as requiring a high level of intervention.
The crimes were committed almost four years ago. A factor that I take into account is that this matter has had a protracted history and I accept that has resulted in stress to Mr Palmer associated with living in the shadow of imprisonment for that time. Initially, he pleaded not guilty but, soon after the jury were empanelled, changed his plea to guilty. He subsequently sought to appeal his conviction. It was in the time close to his pending appeal that he attempted suicide. He withdrew his appeal. He entered pleas of guilty but disputed the facts. The disputed facts hearing was held over a year ago, in late October/early November 2022. At the conclusion of that hearing, the Crown sought to call his former counsel to give evidence about statements he made about his criminal conduct. There was an objection by his current counsel on the basis of privilege giving rise to a legal point of some complexity. That objection was upheld and the matter then proceeded to submissions and a ruling on the disputed facts hearing on 19 October 2023, in which the complainant’s evidence was accepted. While a significant proportion of the history of the matter has resulted from the position adopted by the defendant at various points, the end result is that it has a taken a very lengthy time to resolve the matter.
The most significant factor arising from this delay is that in that time, Mr Palmer has demonstrated compliance with court orders, bail conditions, and has made progress in relation to his drug addiction and mental health. In short, I now have a positive indication about his compliance, which I did not have at an earlier stage.
As I have said before today, these are serious crimes and require a heavy sentence. They involve brutal acts of violence which caused significant harm to the complainant and placed her life in grave danger. An infant child was present and in close proximity to the violence. The sentence must reflect those matters and seek to deter other offenders in order to protect women and vulnerable members of community from harm in family and domestic settings. It could not be suggested that his pleas of guilty warranted any significant weight in mitigation. The complainant had to give evidence and be cross-examined at the disputed facts hearing.
There is very little about the circumstances of his offending which reduces the seriousness of his crimes and, as I have said, his degree of criminal responsibility is high. There is no suggestion that his mental health conditions contributed to a reduction in his moral culpability, and if there was, I would need a report from a psychiatrist or psychologist to endorse and demonstrate that. He was addicted at the time to methamphetamine, and features of his offending were his agitation and paranoia, which were attributable to his drug use. His drug use does not provide any form of excuse.
His addiction, however, is relevant to his rehabilitation, which remains a sentencing goal. If he does reform, the community will benefit. Also relevant is his relative lack of prior convictions for family violence offending involving actual violence. Because of the progress he has made in terms of his addiction and mental health, I consider that, with ongoing support and intervention, he has prospects of rehabilitation. The sentence must be heavy and involve a lengthy term of imprisonment, but it gives weight to these positive factors and will provide you with an incentive to reform.
Balancing these considerations, I impose the following sentence. I record convictions on both assaults. I impose a global sentence of three years’ imprisonment. I backdate the sentence, to account of the time you have spent in custody to 20 August 2023. I suspend 14 months of that sentence on very strict conditions. That leaves an effective sentence of 22 months. I will also allow the opportunity to apply for parole. You are not to be eligible for parole until you have served 11 months of the sentence of imprisonment, which is indeed the most generous order I can make in relation to parole.
The suspended portion of 14 months is suspended for the period of two years on the following conditions:
- You must not commit an offence punishable by imprisonment for two years from the date of your release.
- You are to be subject to the supervision of a probation officer for that period and must comply with all the reasonable and lawful directions of that officer.
- You must attend Community Corrections at 75 Liverpool Street within two working days from your release from prison.
- You must, during that same period of two years, undergo assessment and treatment for drug dependency as directed by a probation officer.
- You must, during that period, submit to testing for drug use as directed by a probation officer;
- You must, during that same period of two years, undergo assessment and treatment for alcohol dependency as directed by a probation officer;
- You must during that period, submit to medical, psychological, or psychiatric assessment or treatment as directed by a probation officer.
- If directed by a probation officer, you must attend, participate in, and complete the Family Violence Offender Intervention Program as directed.
Pursuant to s 13A of the Family Violence Act, the convictions are to be recorded on your record as family violence offences.
Pursuant to s 36 of the Family Violence Act, I make a family violence order.