Director of Public Prosecutions v Keegan

[2022] VCC 1236

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00631

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAM KEEGAN

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JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Warrnambool
DATE OF HEARING:	23 June 2022
DATE OF SENTENCE:	2 August 2022
CASE MAY BE CITED AS:	DPP v Keegan
MEDIUM NEUTRAL CITATION:	[2022] VCC 1236

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — armed robbery — plea of guilty — soft target — knife — service station — petrol station — CCTV — early plea — COVID-19 — remorse — criminal record — criminal history — autism spectrum disorder — attention deficit hyperactivity disorder — ADHD — intellectual disability — dyspraxia — drug use — cannabis — alcohol — first time in custody — moral culpability — general deterrence — specific deterrence — denunciation — community correction order assessment — imprisonment

Legislation Cited:      Sentencing Act 1991 (Vic); Bail Act 1977 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions (Vic) v Heyfron [2019] VSCA 130

Sentence:                  Total effective sentence of two years with non-parole period of 12 months

Section 6AAA declaration: total effective sentence of three years and six months with non-parole period of two years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Triandos	Office of Public Prosecutions
For the Accused	Ms E Byrt	Victoria Legal Aid

HER HONOUR:

1Sam Keegan, you have pleaded guilty to one charge of armed robbery, for which the maximum penalty is a term of imprisonment of 25 years.

2Tendered on the plea was a ‘Summary of Prosecution Opening’. CCTV footage depicting your offending was also tendered. In very brief terms, the circumstances of your offending are as follows. At about 12:05am on Thursday 9 December 2021, the victim, Ashleigh Kilpatrick, was working alone at the BP service station at Raglan Parade in Warrnambool. You entered the service station. You were wearing a full-face zombie costume mask and a hooded jumper with the hood over your head. You had a large silver kitchen knife in your front left pocket. You loitered in the store momentarily before you rushed towards Ms Kilpatrick from behind a display shelf, brandishing the large silver kitchen knife at her. You said, ‘Just give me the cash and nothing will happen’. Ms Kilpatrick moved back from the counter in fear, opened the till and placed approximately $190 in $20, $10 and $5 notes on the counter. You picked up the money and as you left the store, Ms Kilpatrick activated the security alarm.

3Police arrived at about 12:15am and found Ms Kilpatrick to be shaken and frantic. Police downloaded CCTV footage from the service station and identified you as the offender. The money stolen was located at your home, as well as incriminating items.

4You were interviewed by police in the presence of an independent third person. You made no admissions and stated that you did not remember attending the service station, that you had drunk a whole bottle of whisky on the previous day, that you were sound asleep at the time of the offending and that you did not recognise the person alleged to be you in the CCTV footage. You said all items located at your house, including the mask, jumper, knife, and cash, were a coincidence.

5You pleaded guilty on 22 April 2022 at a committal mention. This is a plea at the earliest opportunity. It has significant utilitarian value, especially in the context of the ongoing delays in the administration of criminal justice in this State caused by the COVID-19 pandemic. I take your early plea into account, and I give it the full mitigatory weight which attaches to it, as discussed in the case of Worboyes v The Queen.[1] I also accept, notwithstanding your denials in your record of interview with police, that your plea is indicative of remorse on your part. In open court, you told me that you were sorry for what you had done. You had wanted to write a letter of apology, but you are illiterate. I accept that your statement to the Court was a sincere expression of remorse on your part.

[1] [2021] VSCA 169.

6You have a criminal record with relevant prior convictions for aggravated burglary, burglary, theft, obtain property by deception, unlawful assault, and offences against the Bail Act 1977 (Vic). You were on two community correction orders at the time of this offending, and this is an aggravating feature of your offending.

7Ms Kilpatrick has not made a victim impact statement, but it must be a terrifying experience to be robbed at knifepoint. Ms Kilpatrick was a soft target; that is, a person who, because of the nature of his or her work, often works alone and at night and is an easy target for those seeking easy money. Your offending was serious, Mr Keegan, but I accept the submission of your counsel, Ms Byrt, that it was unsophisticated, of short duration, and that Ms Kilpatrick was not injured. I characterise your offending as a low to mid-range example of the offence of armed robbery.

8Turning now to your personal circumstances, you were born in July 1993, so you are presently 29 years old. You have been diagnosed with the following mental health conditions: autism spectrum disorder; attention deficit hyperactivity disorder; and there is a disputed diagnosis of an intellectual disability.

9Tendered at your plea was a psychological report of Ms Carla Lechner, clinical psychologist, dated 21 December 2017, and a neuropsychological report of Mr Martin Jackson, consultant clinical neuropsychologist, dated 18 May 2022. I refer to these reports in outlining your background as well as canvassing your mental health diagnoses.

10You are the eldest of a siblingship of three. You grew up in Warrnambool. You told Ms Lechner you had a difficult relationship with both your parents, who themselves, according to you, both had mental health issues. You attended primary school until grade 5 with the assistance of an integration aide. Thereafter, you attended special school. Ms Lechner notes that your mother reported that you had a diagnosis of autism spectrum disorder at the age of four. You have always had behaviours consistent with this diagnosis, including poor social and communication skills and repetitive behaviours. You were diagnosed with an intellectual disability a few years after your diagnosis with autism. You also suffer dyspraxia, a neurological disorder which makes your speech difficult to understand and which in turn causes you to become frustrated.

11You have been in receipt of a disability support pension from the age of about 18 years old. Your employment has involved positions that were supported positions for those with special needs. You told Ms Lechner that because your relationship with your parents was strained, you moved out and lived independently at an early age. At the time you spoke to Ms Lechner, you reported using cannabis on a daily basis and using alcohol most days.

12You reported to Mr Jackson, who saw you more recently, that you had been working as a steam cleaner and a car detailer for the last two years. You told him you continue to abuse both drugs and alcohol. You told him you smoked a lot of marijuana in 2020 and 2021. You said you had tried methamphetamine but only inhaling it when others were using it. You told Mr Jackson that your drug use had increased significantly from 2020 when your relationship with a girlfriend ended. You told Mr Jackson that you had received some psychiatric treatment at some stage. You were unclear when and why you had this treatment, but you told Mr Jackson that when undergoing this treatment, you recalled that you had been sexually assaulted by your grandmother at an early age. You said you suffered anxiety attacks. You told Mr Jackson that you had been living independently in the community for the past 10 years.

13Mr Jackson says on the basis of his assessment and testing that you currently have a full-scale IQ of 74 and a general achievement index score of 82 and, as such, he says it is unlikely that you, on the current assessment, would actually qualify as having a mild intellectual disability. He concluded that your cognitive functioning was borderline range. He gave the opinion that you satisfy the diagnosis of attention deficit hyperactivity disorder and autism spectrum disorder with comorbid reading impairments. On any connection between your intellectual functioning and your offending, Mr Jackson says,

He does report that his increased drug use and increase in offending behaviour occurred following acute emotional trauma and therefore, his cognition may have been affected by mental health issues at the time of the offending behaviour. … [The] degree of this effect can only be speculative.

14On the effects of incarceration on your mental health, Mr Jackson says,

Mr Keegan does not have a cognitive condition that would adversely [affect] his ability to cope with imprisonment. His new learning and memory skills are intact (low average to average) and therefore, he has the capacity to learn and remember the rules, routines, and processes of prison and is unlikely to get into trouble because of forgetting things. He also has a base level [of] executive skills which is all that is generally needed in a highly routine environment.

15Mr Jackson does however acknowledge that because of your behavioural traits, you are at risk of antagonising fellow prisoners, and this could lead to difficulties for you in custody, although he notes this has not in fact occurred at the time of writing his report. Mr Jackson assessed your prospects of rehabilitation as good, given, in his opinion, you do have the cognitive skills required to function independently in the community. He notes, however, that you are susceptible to stress and that you do have a mild disorder of attentional and impulse control, which leads to a slightly increased risk of recidivism.

16Turning now to the submissions, I begin with the submissions of Ms Byrt, who appeared on your behalf. Ms Byrt relied upon the following matters in mitigation of sentence: first, your plea of guilty and your remorse; secondly, that this is your first time in custody, and it occurs during the restrictions in prison necessitated by the COVID-19 pandemic; and thirdly, the application of R v Verdins principles to moderate your moral culpability.[2] Ms Byrt acknowledged that your offending was connected to your substance abuse but relied upon Mr Jackson’s opinion that your substance abuse was connected to your mental health difficulties and your poor impulse and attentional control.

[2] (2007) 16 VR 269 (‘Verdins’).

17Ms Byrt submitted that your mental health was relevant to the type of sentence that should be imposed. She submitted that given you were diagnosed with an intellectual disability before the age of 18, you were eligible for a community correction order with a justice plan. Ms Byrt pointed out, notwithstanding Mr Jackson’s current assessment that you do not have an intellectual disability, that you have twice been previously placed on a community correction order with justice plans attached and you have been on the disability support pension since the age of 18.

18Ms Byrt submitted that you are not an appropriate vehicle for general deterrence given your diagnosis of autism spectrum disorder. Fourthly, Ms Byrt submitted Bugmy v The Queen principles were engaged in sentencing you, given your background of emotional hardship, abuse, and disadvantage.[3] Ms Byrt submitted the appropriate sentence was a term of imprisonment combined with a community correction order with an attached justice plan. She submitted that the protection of the community would best be served by a sentence that assists you to remain substance free and links you with the appropriate medical and mental health services to foster your rehabilitation and reduce the likelihood of reoffending.

[3] (2013) 249 CLR 571 (‘Bugmy’).

19Mr Triandos, who appeared to prosecute, submitted that your offending was serious, involving a soft target. He submitted that it occurred when you were on two community correction orders. He submitted that you have a relevant criminal history and specific deterrence is an important sentencing consideration. He acknowledged that general deterrence was modified by the application of Verdins principles. He submitted that a term of imprisonment with a head sentence and a non-parole period was the appropriate sentence.

20Turning now to my conclusions, Mr Keegan, armed robbery is always a serious offence. It carries a maximum penalty of imprisonment of 25 years. As I have already stated in these reasons, your offending was against a soft target, a woman working alone at night in a service station. Such offending occurs all too often, and general deterrence and denunciation are important sentencing considerations. Specific deterrence is also important in your case, given you have a relevant criminal record and this offending occurred in breach of two community correction orders.

21I have no evidence beyond your own reports from Ms Lechner and Mr Jackson concerning disadvantage and abuse suffered by you in your childhood and formative years. Your narrative being unsupported and lacking in any real detail, I am unpersuaded that Bugmy principles are engaged in sentencing you.

22Your background and your personal circumstances are of course relevant sentencing considerations and I take into account that your life has been one of some hardship, as you struggle to live independently in the community with your behavioural and cognitive difficulties.

23I accept that Verdins principles are engaged in sentencing you. I accept that your moral culpability is reduced to a modest degree because of your impaired mental functioning. I also find that although your offending was committed when you were intoxicated, in your case, this carries some mitigatory weight given it is related to your mental health difficulties which have been present since your childhood.[4]

[4] Director of Public Prosecutions (Vic) v Heyfron [2019] VSCA 130, [58].

24The principle of general deterrence is also modified pursuant to Verdins but not wholly eliminated. Your offending is serious and notwithstanding your mental health difficulties, the message can and must be sent by the sentence I impose that armed robberies on soft targets will be viewed seriously by the Court and appropriately punished. I am guarded about your prospects of rehabilitation given your criminal history and your failure to successfully complete your two most recent community correction orders, one of which had a justice plan condition.

25You have matters pending in the Warrnambool Magistrates’ Court for offending occurring in November 2021. This offending was also in breach of the two community correction orders. Given your inability to live offence free in the community, community protection is also a relevant sentencing consideration.

26I take into account the current difficult conditions in prison, and I take into account that this is your first time in custody, made more onerous by your cognitive deficits. I had you assessed for a community correction order with a justice plan. You were assessed as unsuitable for a community correction order. In the Corrections report, it stated that you made minimal progress and failed to engage with your current community correction orders. The assessor was advised that prior to your incarceration, you were exited from the alcohol counselling program due to your lack of comprehension, and that you failed to complete any of your community work hours.

27You did successfully complete a 12-month community correction order in 2019 and I note your mental health assessment deemed you as suitable to undertake a further community correction order. However, although I accept there are benefits of a community correction order with a justice plan, I am of the view that given your history of failure and the content of the community correction order assessment report, that I would only be setting you up to fail again, and this is not in your best interests nor in the interests of the community.

28I have concluded that taking into account all the matters I am required to under the Sentencing Act 1991 (Vic) and matters personal to you, to give proper expression to the principles of general and specific deterrence, denunciation and community protection, the only sentencing option now available to me is a sentence of imprisonment consisting of a head sentence and a non-parole period. The sentence I impose will allow for a lengthy period of parole in an attempt to foster your rehabilitation.

29On charge 1, you are convicted and sentenced to a term of imprisonment of two years. I set a non-parole period of 12 months.

30Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 236 days of the sentence imposed and I direct that that be entered into the records of the Court.

31Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, I would have sentenced you to a term of imprisonment of three years and six months with a non-parole period of two years.

32I make the disposal order sought by the prosecution.

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