Director of Public Prosecutions v Gosland &Kilpatrick
[2013] VCC 766
•29 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00465
CR-13-00466
CR-13-00467
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RODNEY LIONEL GOSLAND RACHAEL JANE KILPATRICK |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2013 | |
DATE OF SENTENCE: | 29 May 2013 | |
CASE MAY BE CITED AS: | DPP v. Gosland &Kilpatrick | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 766 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Ayers | Office of Director for Public Prosecutions |
| For Accused Gosland | Ms D Caruso | |
| For Accused Kilpatrick | Mr H. Rattray |
HIS HONOUR:
1 Rachel Jane Kilpatrick and Rodney Lionel Gosland, you can both remain seated for the time being.
2 You have pleaded guilty to various charges on an indictment. Both of you have pleaded guilty to an offence on the 13 February of last year of extortion.
3 Each of you pleaded guilty to a theft of money on the same day from your victim, Mr Denomi. In your case, Rachel Jane Kilpatrick, the total money stolen was $870.00 and in your case, Mr Gosland, the total was $170.00.
4 You each pleaded guilty to an offence on the 8 March of last year of kidnapping Mr Denomi. You, Gosland, have also pleaded guilty to an offence of causing injury intentionally to Mr Denomi on that day and theft of cash in the sum of $200.00.
5 Each of you have admitted prior convictions, in your case Gosland, and in your case, Rachel Kilpatrick, court appearances none of which, I think, have resulted in a conviction being recorded.
6 In so far as your prior convictions, Mr Gosland, are concerned they are in comparison with the offences to which you pleaded guilty, less serious, and of a more petty nature. Although there are offences involving violence and/or reckless conduct on your part.
7 Ms Kilpatrick, your court appearances have been much less serious and involve shop stealing and possession of cannabis, and in one case throwing a missile.
8 The prosecution has tendered and relied upon a summary of prosecution opening which is Exhibit "A" along with a victim impact statement, Exhibit "B" and photographs of the victim after he had left hospital showing injuries that he received during the course of the events on the 8 March of last year.
9 I am not going to go through the summary of prosecution opening again in great detail but incorporate that document in its entirety into these reasons for sentence. Suffice to say that you, Rachel Kilpatrick, in early 2012 offered the victim a sexual favour in return for an agreed price of $150.00 which you delivered upon. Thereafter you told your co-offender, Gosland, and his partner that he had sexually assaulted you and that you wanted Gosland to scare him for you.
10 On the 13 February of last year you, Kilpatrick, obtained the victim's home phone number and arranged for him to pick you up ostensibly to take you to visit friends. Those friends, of course, were your co-offender Gosland, who had agreed by that time to participate in the extortion, which is the subject of Charge 1.
11 On your arrival with the victim at Gosland's home he placed the victim in a headlock and both of you threatened that unless he handed over money you would "cut his dick off". You Kilpatrick, then went to the kitchen and picked up a steak knife which you held, although not in his immediate vicinity, clearly with a view to backing up the threat that each of you had made to your victim.
12 You, Kilpatrick, then removed the victim's wallet from his pocket and handed it to Gosland who took out $170.00 cash. You both demanded a further $700.00 cash. He, the victim, said he would draw it from his account. When you, Kilpatrick, went with him he told you that he had another $700.00 cash in the boot of his vehicle. He handed it to you and you said, "Now we are square and nobody needs to know anything. Don't tell your wife and everything will be all right."
13 You then went back inside Gosland's house. The victim drove away, without receiving any injuries, but extremely scared and fearing for his safety and fearing for possible retribution from you and Gosland.
14 On the 7 March of last year you, Kilpatrick, and your then partner and co-offender Murphy, attended Gosland's premises and you discussed further offending against the same victim.
15 You, Kilpatrick, said that the victim was usually pretty "cashed-up" and would be a good target for "quick money earn". You also suggested that you could teach him more of a lesson for touching you up. Clearly, that was a false story that you had told Gosland in order to secure his participation in the events of the 13 February and you repeated that in order to induce both Gosland and Murphy to participate in the events that took place on 8 March.
16 You then set obout tricking Mr Denomi into believing that there was another job on offer for him at an address in Boronia close to where Gosland lived. Unfortunately, for him he agreed to meet you at that premises at 8.30 on the following day, he not having recognised your voice over the telephone.
17 Later that evening your co-offenders Murphy and Gosland got together and planned how they were going to kidnap the victim in order to get money from him. On the following day at about 7.30 you, Gosland, along with Murphy attended the premises at Boronia that Kilpatrick had arranged to draw the victim to attend. You were dressed in dark clothes, black balaclavas and carrying backpacks containing a spare change of clothes.
18 About 7.45 you located yourself in bushes near the driveway of those premises. When the victim arrived at about 8.30, he pulled into the driveway, got out of his vehicle and was immediately confronted by the two of you who were wearing black balaclavas and gloves.
19 Murphy and you, Gosland, then set out about punching and kicking him. You, Gosland, produced a knife and told him, "Give me your money or I'll kill you." Either you, Gosland, or Murphy grabbed hold of the victim whilst the other took his wallet containing $200.00 cash.
20 The victim was then pushed into the rear seat of the vehicle. You, Gosland, sat next to him in the rear holding the knife whilst Murphy drove his vehicle. You threatened him again saying, "I want money or I'll kill you." Murphy told him to get his card and take them to a bank to get money out or "I will put you in the boot and I will kill you."
21 When the victim said that he didn't have a card for the bank a demand was made for his wedding ring which unfortunately for him he could not take off. You, Gosland, then punched him numerous times to the face whilst he was in the car.
22 His ordeal continued for some time as you were driving around and at one point Murphy pulled in to a quiet area where he urinated and then told the victim, "If you don't give me your money I'll kill you." He also hit the victim in the stomach with a stick.
23 The vehicle apparently broke down or ran out of petrol at Chirnside Park. You, Gosland, told the victim to stay in the car or you would cut off his feet. You and Murphy decamped and were able to meet with your co-offender, Kilpatrick, at the Ringwood Railway Station some time later.
24 Mr Denomi was taken to the Maroondah Hospital where he received medical treatment for his injuries. He suffered a fractured nasal bone, a lacerated lip, bruising and swelling to the right orbit, and nasal bone abrasions to the cheek and forehead, a chipped tooth, facial bleeding and tenderness over the left femur, soreness and pain to the face, abdomen and left hand. He was discharged later that evening.
25 Throughout the offending he was terrified and believed that he would be killed. When each of you were arrested and questioned about the matter you denied the offending or offered, "No comment", to the allegations being put against you. Although after negotiations had taken place between you and the prosecution an arrangement was made for you and you indicated that you would plead guilty to the offences, the subject of the indictment and it has been urged on me to accept that I should regard that as an early plea. I do accept that. An appropriate discount arises from the utilitarian value of that early plea and the time and money saved from having to have a committal proceeding and a trial and the witnesses were spared the ordeal of having to give evidence in either of those proceedings.
26 I note that at the time of the offending you, Gosland, were 41 years of age and you, Kilpatrick, were 40 years of age. Your victim, Mr Denomi, was 74 years of age and, although retired was engaged in occasional garden duties on a casual basis.
27 Your conduct towards Mr Denomi was utterly deplorable and as the prosecution pointed out to me in the course of discussion he was a defenceless and vulnerable man who was targeted by you because he was a soft target.
28 I think both of you now accept that your conduct was deplorable and is to be condemned in the strongest possible terms. I accept that both of you now appreciate not only the physical injuries which were occasioned to the victim but also the emotional effects of the conduct that was meted out to him on these two occasions will have a long-term impact on him and affect him, probably, for the rest of his life.
29 Offending conduct of this kind has to be denounced by the courts and the courts have a duty to protect persons such as Mr Denomi from offending conduct of this kind and to deter others from engaging in that kind of conduct.
30 The maximum term of imprisonment for the offence of kidnapping, the subject of Charge 4, is 25 years' imprisonment.
31 The maximum term of imprisonment for the extortion, subject to Charge 1 is 15 years' imprisonment. For theft the maximum is 10 years' imprisonment and for intentionally causing injury the maximum term of imprisonment is also 10 years' imprisonment.
32 Turning to matters personal to each of you and commencing with you, Gosland. I was provided by your counsel with a report from Mr Geoffrey Cummins, psychologist, dated the 28 May of this year, with a bundle of other documents that I had marked as Exhibit "G1" on the plea, a bundle of other documents which included a letter from Anglicare signed by Ms Alicia Strickland dated the 24 January of this year and a report authored by Ms Baraka on behalf of Court Integrated Services Program of the Magistrates Court of Victoria each of them dealing with efforts that you have made whilst on bail to address some of the problems which have affected your life and have contributed to the offending conduct that brought you here today.
33 There are a number of other documents. I do not think I need to list those in any detail, save to note that you have provided the court with a letter which I understand you have also to the informant in the matter which you addressed to your victim, Mr Denomi, and in which you express your sorrow for your conduct and admit that your behaviour was, as you described it, “appalling behaviour”. You go on to say, "I can't express how ashamed and remorseful I am for my actions."
34 There is also a letter from Bruce Dunlop, that is the father of your partner, who describes you as being a very hard worker and a person who respects his daughter and your mutual son, Brodie.
35 Your counsel urged me to accept that you deserve proper credit for an early plea. I do accept that, that you are genuinely remorseful as you expressed in the letter to which I have just referred that you have shown you have insight into the effect of your conduct upon your victim and you acknowledge that you must receive a substantial prison sentence for your conduct.
36 It was pointed out to me that you left school at the age of 14 years and nine months and engaged in an apprenticeship which you never completed. I think fair to say that your work record has been intermittent in the past and I think you have been out of work now for some time.
37 Clearly, you have been a person who has abused drugs over many years and you are a long term heroin user and it seems that the mutual interest that brought you and Mr Murphy and Ms Kilpatrick together was an interest in heroin.
38 Your personal relationships have not survived. You have been engaged over many years in relatively petty criminal activity. No doubt in many ways as a result of your continued abuse of illicit substances. You have been mentally and, I accept still are, extremely fragile to a point where you attempted suicide in 2007 by attempting to hang yourself. You were discovered by your son and you have been suicidal in more recent times as a result of your fragile mental state.
39 There are hopes for the future in that you and Ms Dunlop have been in a relationship for, as I understand it, about three years or so. You have a son aged 18 months and hopefully that relationship will survive. Ms Dunlop has come to court to support you and it is to be hoped that that relationship will assist you when you complete your sentence.
40 The report of Mr Cummins, who has been very thorough in documenting your past history and your involvement with drugs and your psychological state identifies a dysthymic disorder as something which you had for considerable time. He identifies amongst the events that have occurred in your life that you were, yourself, the subject of sexual abuse and also awareness that Ms Dunlop was also the victim of sexual abuse. He seeks on page 8 of his report to make a connection between those facts and your offending conduct, the subject of this indictment.
41 As I pointed out during the course of the discussion I have heard no evidence at all to support the proposition that amongst the falsehoods you were told by Ms Kilpatrick that you were told that before your offending conduct the victim had been involved in sexually abusing a child or children.
42 I am simply not prepared to act upon something that you told your psychologist without any supporting evidence. Frankly, it seems unlikely. But whether it is true or not I am not prepared to act on that. Even if that was the case it seems to me with respect to Mr Cummins, that he is drawing a pretty long bow to suggest that that link is such as to reduce your moral culpability for your offending conduct and I simply do not accept that that is the case.
43 I do accept, though, that your fragile mental state and your long term history of drug abuse and dysthymic disorder will make serving your time in prison more difficult than if you did not have those conditions. I am prepared to accept that it is appropriate that I reduce the sentence that might otherwise be appropriate, in your case, for those reasons.
44 I accept also that you have made some efforts to rehabilitate yourself and I am inclined to think you are sincere in your wish to continue with that process. It is difficult to be any more than guarded in determining how successful you are likely to be. You will need very considerable help. That I think is supported by Mr Cummins' report if you are to deal effectively with the various problems that he, Mr Cummins, has identified including your substance abuse and difficulties and underlying emotional and psychological issues.
45 It certainly is desirable that if at all possible you participate in drug rehabilitation courses within the prison system during the time that you are incarcerated and you will continue to need support when, eventually, hopefully you will get the parole.
46 I am required in both cases to impose a sentence that facilitates your rehabilitation as much as I reasonably can but there are, of course, other sentencing considerations, denunciation of your conduct, punishing you appropriately for your offending, deterring you from committing further offences and deterring others from engaging in conduct of this kind.
47 It is accepted on your behalf that a substantial term of immediate imprisonment is inevitable and my task is to determine how long that should be.
48 It has been submitted on your behalf that I should have regard to the fact that you have suffered a degree of public humiliation by the publicity that you received as a result of your involvement in this series of offences. I made the comment that some might say it is no more than you deserved. That might be a little harsh. On the other hand the press have a duty to report offences of this kind and it is by so reporting them that the message can go out to others that offending conduct of this kind is not to be tolerated and will result in substantial terms of imprisonment.
49 While I can not be critical of the press, it is true though that you have to some extent suffered that public humiliation and it is a factor, although not one that weighs heavily in the sentencing process in my opinion.
50 Turning to you Ms Kilpatrick, your counsel provided me with a helpful outline of submissions which is Exhibit "K1", a report from your treating psychologist, Ms Helen Barnacle, which is Exhibit "K2", and a bundle of correspondence which are all references to your character, which are marked collectively as Exhibit "K3".
51 Dealing first with the latter. All of those references speak very highly of you as a person and support the proposition that, as your counsel put it to me, until 12 or 13 years ago you were living an enviable life. You had a good work record, your own home and investment property and a marriage and although your children, your first child was premature, the prospect of a young family.
52 There were a series of tragic events that intervened. The death of your cousin, the death of your brother, the death of your second child at the age of 11 days and then, of course, the break-up of your marriage and, as I understand it, your postnatal depression and the discovery soon after the break-up of your marriage that your husband had apparently repartnered very shortly with one of his work colleagues. Any one of which would have been a significant event in most people's lives but in combination inevitably it had a very profound effect upon you and I accept that entirely.
53 One of the letters that was particularly relevant amongst those in Exhibit 3 was that of your parents. I cannot help but be impressed by that letter. It eloquently speaks of you as basically a good person who has been profoundly affected by this combination of events and that that has led to a very significant deterioration in your psychological state and ultimately to you turning to heroin as a result of becoming involved with a heroin user.
54 It is a tragic story in many respects and, unfortunately, it is commonplace in these courts to see the deterioration of people once they do become involved in drug abuse. In your case it seems you were able to disguise that very effectively and to lead a relatively normal life until more recently. Perhaps, you would have come through it all one way or the other had it not been for another set back in your life which involved you having a serious car accident and losing a good job with good prospects and I think leading to a significant further deterioration in your mental state and your ability to drag yourself out of the "pit" that heroin addiction had drawn you into.
55 The constant in your life, of course, had been your children and these references again speak eloquently of your capacity and your love as a mother and on the efforts that you made selflessly to look after your children to give them the kind of home - the best kind of home that you offered.
56 It seems that it is only in this last period that you have attracted the attention of the courts and that your heroin use has increased and that you become less able to disguise your situation. Ultimately you become involved in this offending.
57 One of the facts that I note from this correspondence is that after your motor vehicle accident you spent the $15,000 you received in compensation for the loss of your vehicle on heroin. That is a very sad fact and reflection of the low level of your mental capacity over that time and it seemed to herald the increasing downward spiral of your life.
58 I have also been supplied with a report from your treating psychologist Ms Barnacle which is an extremely well balanced report. What she says about you is consistent with what is written in those references and what I have endeavoured to articulate in the last few minutes.
59 She, Ms Barnacle, says of you under the heading "Prognosis" - "Rachel, is an intelligent and insightful young woman who needs to process various past traumas. Rachel's prognosis is very positive.
60 I think that you do have the capacity to come through all this. I note the fact that your parents are here and no doubt they will support you. Your many friends, as well as your younger sister of course, who have written references for you, will also provide you with considerable support.
61 I therefore regard your prospects of rehabilitation again guardedly, because you will be a recovering heroin addict for the rest of your life assuming that you are able to get through this, as reasonably good.
62 As to the offending conduct that would seem to be entirely out of character.
63 (Technical difficulties.)
64 (Short adjournment.)
65 HIS HONOUR: I think I got to the point where I was saying of you, Rachel Kilpatrick, that of your offending conduct it seems clear from all that is contained in your references and your past history that conduct of this kind is out of character and, therefore, I think that bodes well for the future in terms of your rehabilitation. But the fact is that you did commit these offences.
66 I regard your culpability so far as the first charge, that is the extortion as being higher than that of your co-offender. It was clearly your idea. You were the instigator and you told a false story in order to fire up your co-offender, Mr Gosland, and enlist his participation in the offending conduct.
67 It was a very serious act of extortion on your part, accompanied by a serious threat which you supported by the production of a knife and you then stole his money. I accept that your participation in the kidnapping offence which I agree is to be regarded as the most serious of the offences on the indictment is less serious than that of Mr Gosland and is more in the nature of the conduct that is the subject of Charge 1.
68 In other words, essentially, a repeat in slightly different form of what you participated in directly in relation to the extortion, the subject of Charge 1. But, again, you were a significant participant in the planning of that in that it was you who maintained the false story that you had been the subject of an indecent assault by the victim. That was maintained by you deliberately to stir up your co-offenders and to enlist them in committing the offence of kidnapping.
69 I accept that you were not part of the planning process of the detail and I accept that you are not to blame for the beating that was administered to him in the carrying out of that offence. But you still bear a very substantial moral culpability for that serious offence of kidnapping.
70 I invited the prosecution to indicate the submissions that they would make as to an appropriate range of sentences. Mr Ayers indicated that an immediate custodial sentence involving actual incarceration was required in relation to each of you. As to you, Gosland, it was submitted that the appropriate range within which I should be sentencing is a total effective sentence of between six years and seven and a half years with a non-parole period of between four and five and a half years. And in your case, Kilpatrick, a total effective sentence of between five and six years with a non-parole period of between three and four years.
71 I, of course, have to have regard to the sentence that I imposed upon your co-offender, Murphy. That sentence was a total effective sentence of four years and six months with a period of two years and nine months before he was to become eligible for parole. That sentence was pronounced by me on the 22 February of this year.
72 He, Murphy, of course was not involved in the first series of offences, those committed on the 13 February, although he was a full participant in the offences that were committed on the 8 March. He, like you Kilpatrick, did not have significant prior criminal history although he had some prior criminal history. You, Gosland, of course have a much more significant criminal history than that of Kilpatrick.
73 As I have indicated already it is necessary for me as a Judge of this court to express adequately the denunciation of conduct of this kind and to punish each of you adequately. I do need to give some consideration and proper effect to deterring each of you engaging in criminal conduct in the future as well as, and more importantly, deterring others from committing offences of this kind and consistent with proper reflection of those sentencing considerations to facilitate your rehabilitation as best I can.
74 Whilst it was accepted on your behalf, Gosland, that a substantial term of imprisonment was inevitable it was submitted on behalf of you, Ms Kilpatrick, that in all the circumstances I should look to a Community Correction order as an alternative to a term of imprisonment.
75 You counsel, I think, put it on the basis that it was something of a line ball but nevertheless submitted that it was within my sentencing discretion.
76 I would, in many respects, like to accede to that submission. I have no doubt that you would benefit from a community correction order but I regard your culpability for this offending as too serious and the other sentencing considerations that I have outlined I think require me to impose a term of imprisonment that you will have to serve.
77 I do not think that ultimately will prevent you from rehabilitating yourself. I think you have it in you and I think you have the supports around you that will enable you to get through this.
78 It is a significant punishment for somebody who has led, in many respects, a good productive life but you had time to reflect upon your conduct between the first instance and the second and I think I would be failing my duty unless I imposed a term of immediate imprisonment upon you.
79 I am going to sentence you now in turn. I will start with you, Gosland. Would you stand, please, Mr Gosland?
80 For the offence, the subject of Charge 1, of extortion I convict you and sentence you to imprisonment for a period of two years and nine months. For the charge, the subject of Charge 3 of theft, I sentence you to six months' imprisonment and convict you.
81 For Charge 4, of kidnapping, I convict you and sentence you to imprisonment for four years. On Charge 5, of intentionally causing injury, I convict you and sentence you to imprisonment for a period of two years and on Charge 6 of theft I sentence you to a term of imprisonment of six months.
82 I order that Charge 4 is to be regarded as the base sentence and I order that 18 months of the sentence on Charge 1 and six months of the sentence on Charge 5 serve cumulatively with one another and with the sentence that I have imposed in relation to Charge 4. That makes a total effective sentence of six years' imprisonment and I order that you serve a period of four years before becoming eligible for parole. But for your pleas of guilty I would have sentenced you to a term of imprisonment of eight years with a non-parole period of five years and 10 months. I declare that 28 days of pre-sentence detention are to be reckoned as time served on the sentences that I have imposed and deducted administratively from the sentence that you will actually have to serve. I order that that fact be noted in the records of the court. You may sit down now.
83 Ms Kilpatrick, in your case, on Charge 1 of extortion I regard your culpability as higher than that of Mr Gosland as I have indicated and I sentence you to imprisonment for a period of three years. On Charge 2, of theft, I sentence you to imprisonment for a period of eight months. On Charge 4, of kidnapping, I regard your moral culpability as lower than that of either of your co-offenders and I sentence you to imprisonment for three years and six months. I order that the sentence that I have imposed on Charge 4 be regarded as the base sentence and I order that 18 months of the sentence on Charge 1 be served cumulatively with that sentence, making a total effective sentence of five years' imprisonment and I order that you serve a period of two years and nine months before becoming eligible for parole.
84 I declare that had it not been for your pleas of guilty I would have sentenced you to a total effective sentence of seven years' imprisonment with a non-parole period of four years and nine months. Of course I convict you in relation to each of those offences, Charges 1, 2 and 4 and I declare that two days' of pre-sentence detention be reckoned as time served on the sentences that I have imposed and deducted administratively from the sentences. I order that that fact be noted in the records of the court.
85 You may sit down. In respect of each of you I will make the orders for the provision of a forensic sample. I have not received a draft, Mr Ayers. I do not know whether you have drafts prepared?
86 MR AYERS: Yes, thank you, Your Honour. They need to be emailed to Your Honour's Associate.
87 HIS HONOUR: Yes. All right. When I receive those I will sign those orders. I take it that they are applications for orders that will seek forensic sample by the scraping from the inside of the mouth?
88 MR AYERS: That is so.
89 HIS HONOUR: Or, alternatively, a blood sample. Is that right?
90 MR AYERS: That's so.
91 HIS HONOUR: Yes. Well, in the case of each of you I will make those orders and I, of course, inform you that you will be approached to provide a sample by scraping with a cotton bud from the inside of the mouth. If you provide the sample in that way then all well and good. If you fail or refuse to provide the sample in that way the officer seeking to obtain the sample will be authorised to obtain the blood sample from you in the alternative and may use reasonable force to obtain that sample. I am quite sure that neither of you will put the officer to that trouble when you are approached by the sample.
92 Any other orders counsel?
93 MR AYERS: No, Your Honour.
94 MS CARUSO: No, Your Honour.
95 HIS HONOUR: Yes. You may take the prisoners. Yes, custody officers, you make take the prisoners. Thank you.
96 MR RATTRAY: Your Honour, I wonder if I could seek the court's indulgence? If I could see my client briefly after in the courtroom it would save me having to go - - -
97 HIS HONOUR: No. I cannot make that order but I dare say - - -
98 MR RATTRAY: No.
99 HIS HONOUR: - - - you will be permitted to do so.
100 MR RATTRAY: Thank you, sir.
101 HIS HONOUR: And I will leave the court now to enable that to occur if at all possible.
102 MR RATTRAY: Thank you, sir.
103 HIS HONOUR: It is customary though to allow the prisoners to depart the court as Judge leaves.
104 MR RATTRAY: Thank you, sir.
105 HIS HONOUR: And I thank counsel for their assistance.
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