Director of Public Prosecutions v Kilpatrick
[2025] VCC 1405
•24 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-25-00654
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v SAMUEL KILPATRICK |
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 September 2025 | |
DATE OF SENTENCE: | 24 September 2025 | |
CASE MAY BE CITED AS: | DPP v Kilpatrick | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1405 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Carjacking – common law assault – plea of guilty
Legislation Cited: Sentencing Act1991 (Vic)
Cases Cited:
Sentence: Total effective sentence of 3 years with a non-parole period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr L. Dogger | Middleton Maisner Legal |
HER HONOUR:
Introduction[1]
[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.
1Samuel Kilpatrick, at about ten o’clock at night on Saturday 25 January 2025, Susanne Newland, who was 74 years old, was sitting in her car in her garage in Robinvale having just returned home from visiting her daughter when you carjacked and assaulted her. She had opened the garage door with her remote and was sitting in the car listening to an audiobook with the engine running and the headlights on when you appeared at her car door wearing a bandana over your face.
2You opened the door and told her to get out. She was reluctant to get out of the car and said no but turned the engine off. You then grabbed her by the arm and pulled her out of the car before pushing her, causing her to fall over backwards onto a hard plastic plant pot and some other items before landing on the concrete floor. You got partway into the car before getting out, standing over Ms Newland and demanding the keys, not realising they were actually in the car.
3When Ms Newland told you she did not have the keys, you got back in the car, pressed the start button and drove away.
4Inside the car were various items belonging to Ms Newland which she never recovered. There was her iPhone, there was a black purse which had an old $100 note in it which belonged to her mother and which she held onto as a keepsake. There was $55 in various denominations, there were four bank cards, there was a driver's licence, Medicare card, pension card and various other cards. There was also a backpack which contained prescription glasses, a bunch of keys, a garage remote, medication, Post Office keys and a booklet with various log-in numbers and details.
5Ms Newland was not able to call the police after you drove away as she did not have her phone. She also could not get inside her house as she did not have her glasses and could not see well enough to use her spare keys. So, she went to her neighbour’s house, and they called the police who arrived soon after. She was able to give a very good description of you and your clothing.
6Returning to what you did. After taking the car, you drove over the Murray River to Euston, which is where you lived at the time, and then to Mildura on the Sturt Highway. Along the way you threw Ms Newland’s mobile phone out the car window in Euston and stopped to fill up for petrol in Buronga.
7At some stage after you arrived in Mildura you abandoned the car, leaving it unlocked, in a street where it was found by police at about 8.30pm on the Sunday. All Ms Newland’s possessions as I have outlined above were gone. Further, the car had been rifled through and items from the glove box and console were strewn all over the passenger footwell.
8The next that is known about your movements is that at around 4.00am on Monday 27 January, you caught public transport back to your place in Euston. You were arrested later that day and your home was searched. The police found clothes that you were seen wearing on CCTV at the Buronga service station and earlier on in the night at the Euston Club.
9You were interviewed and made full admissions to the carjacking and pushing of Ms Newland.
10You said you had caught the courtesy bus to the Euston Club at about 6.00pm on the 25th where you stayed for a few hours and then went to Robinvale looking for someone to hang around with when you saw the car. You said it was running but you thought it was empty until you walked up to it and saw that someone was in it, 'so I already kind of committed and then, yeah, just took the car'. You said you drove to Mildura looking for something to do and dumped the car and denied taking any of Ms Newland’s possessions.
11You were charged with aggravated carjacking, an offence which is punishable by a maximum term of imprisonment of 25 years and carries a mandatory minimum non-parole period of three years, and assault, and pleaded guilty to those charges at the committal. On 22 September 2025, before me you pleaded guilty to carjacking simpliciter, which has a maximum penalty of 15 years' imprisonment, and because it is a Category 2 offence, also requires a sentence of imprisonment unless a relevant exception is established, but it has no mandatory minimum non-parole period. You also pleaded guilty to assault on that day. The assault charge is punishable by a maximum term of five years imprisonment.
12Mr Dogger conceded on your behalf that there was no relevant exception but submitted that I could sentence you on the carjacking to a straight term of imprisonment and impose a community correction order on the assault. Mr O’Doherty submitted that nothing short of a head sentence and non-parole period was appropriate.
13In determining your sentence, the law requires me to have regard to a variety of factors which I will outline in these sentencing remarks. Some tend towards leniency, and some point the other way. No one factor is automatically more important than any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence in the unique circumstances of your case.
Your personal circumstances
14Your personal circumstances were outlined in defence submissions.
15You were born in 1995 and are now 30 years old. You spent your early years living with your parents and two brothers on a property on the banks of the Murray River. Unfortunately, your father died from leukaemia when you were only five years old. Your mother never remarried and raised you as a single mother. When you were 13 years old you moved to Euston for your mother’s work. You had a good relationship with your mother and brothers growing up, and still do, although you attribute the poor decisions you made in early adulthood to the absence of an older, positive male role model during your upbringing.
16You have Māori heritage on your mother’s side and often travelled to New Zealand to visit family in your youth.
17You completed the Year 12 TAFE pathway. You have not done any other formal training or education but have worked for most of your adult life including in construction, mining and farming.
18You started drinking alcohol when you were 16 years old and used cannabis between the ages of 16 and 21. You started using methylamphetamine when you were 21. You claim to have abstained from drug use for lengthy periods and that you want to be abstinent in the future as you know that when you use drugs you mix with the wrong people.
19You have no mental health issues and are in good physical health.
20You had a short relationship when you were 26 years old which resulted in a daughter now aged three. You have maintained contact with your daughter and her mother. Whilst you have been on remand your daughter was taken into foster care as a result of her mother’s drug use. You have video calls with her once per week and you say that your daughter provides strong motivation to improve your life.
21Whilst in custody you have worked as a billet and completed all available educational courses and programs. You are in the process of doing a 12-week 'Positive Lifestyle Program' that contains modules focusing on self-awareness, anger, depression, loneliness, stress, grief and loss, assertiveness, self-esteem and future direction. You also attended six sessions with Narcotics and Alcoholics Anonymous and have abstained from using drugs.
22Upon release you intend to return to Mildura to live with you mother, older brother and other family members. You want to find employment and work towards having your daughter returned to your care.
Objective Gravity of your offending and moral culpability
23The objective gravity of the offending and the moral culpability of the offender are critical to any sentence.
24If there was any doubt about the inherent seriousness of your offence of carjacking, the maximum penalty and mandatory sentence of imprisonment make it clear.
25Mr Dogger submitted that your particular instance of carjacking fell towards the lower end of the spectrum of seriousness for the offence. He submitted there were a lack of a number of aggravating features such as premeditation, sophistication, financial motivation and there were no serious injuries. He pointed out that the offending was of short duration, and although it took place in the victim’s home, at least it meant she was not stranded in a public place without means of help.
26The fact it is possible to envisage worse case scenarios does not detract from the seriousness of what you did. Although you were obviously carrying a bandana on the night, I accept that your offending was relatively spontaneous in the sense that you saw an opportunity and took advantage of it. Accepting that you may not have known whether anyone was actually in the car when you started walking towards it, you very soon after would have realised that someone was. In any event, given the overhead garage lights were on, the headlights were on, and the engine was running, you would have realised that the driver was not far away if not actually in the car. I am satisfied that you were determined to take the car no matter what, and that is what you did. Further, upon seeing that your victim was a woman, and not a youthful woman at that, you would have realised that she was an easy target. You gave no thought to her or her emotional or physical wellbeing. It was cowardly, violent and selfish behaviour and all because you wanted to drive to Mildura for the night. Further, although your offending was naïve in some respects, the fact you threw Ms Newland’s mobile phone away indicates a level of sophistication. It is worth noting that it was ultimately located by the 'find my iPhone app.'
27As far as the fact your offending took place in the offender’s home rather than a public place is concerned, this is probably a case of comparing apples with oranges. Both scenarios are bad for different reasons. In this case you shattered the victim’s sense of security in her own home.
28All up, I consider your offending to be a midrange example of both offences. There is nothing in your background or personal circumstances to reduce your moral culpability and I find it to be high.
Impact of your offending[2]
[2] I am required to take into account is the impact of your offending on your victims and their personal circumstances - Section 5(2)(daa), (da) and (db).
29Ms Newland’s victim impact statement clearly illustrates how far-reaching the impact of your crime has been. There have been emotional, physical and financial effects, not to mention a great deal of inconvenience.
30Ms Newland now feels scared, unsafe and vulnerable even in her own home, a place that was once her sanctuary. Before this she was an active and engaged member of her local community enjoying socialising and time with family. Now she describes herself as a nervous anxious person who no longer is confident to go out alone, particularly at night.
31She suffered a large graze and bruising to her back from falling, and she also had red welts and swelling and bruising to her arm.
32On 30 January Ms Newland was examined by a doctor. That doctor said that the victim, Ms Newland, had right shoulder and right elbow pain, bruising to the upper right forearm and decreased range of motion in her right shoulder. Further, she had left shoulder pain, right hip pain on standing and low thoracic back pain with bruising and grazed evidence on examination.
33These physical injuries were enduring and Ms Newland was still feeling the effects at the time of writing her victim impact statement, particularly her right arm and shoulder which suffers from reduced mobility.
34There was also a considerable financial burden on Ms Newland due to her not being able to work for some time and needing to replace her car and all the other items that she lost. She had to replace her car because you destroyed the diesel engine when you filled it with unleaded petrol. Insurance only paid for part of the replacement cost, and she had to hire a car in the meantime. Quite apart from all the inconvenience and time involved, Ms Newland put her out of pocket costs at around $27,000.
35Ms Newland also lost the $100 note from her mother, which was an item of considerable sentimental value.
36Ms Newland describes now feeling angry and negative. She is having difficulty regaining her confidence and her ability to trust. Instead of her 'twilight years' being filled with peace and happiness, they are now marred by fear, social withdrawal and anxiety because of what you did.
Current Sentencing Practices
37I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both. I was not referred to any comparable cases, but I have had a look at the most recent Sentencing Advisory Council Statistics of the higher courts for the five years up until 30 June 2023 for both your offences.
38They indicate that almost 94 per cent of charges of carjacking for those five years resulted in a term of imprisonment ranging in length from just over a month to five years, with two to three years being the most common sentence at 31 per cent.
39Of course, statistics never tell you anything about the details of the case. That said, the range of terms of imprisonment could be expected to broadly reflect the full spectrum of seriousness of the cases involved. It is also likely that some of the sentences would have been reduced because of the combined effect of the Worboyes’ principle and the increased burden of imprisonment during COVID.
Plea of Guilty, co-operation and remorse
40You are entitled to a significant discount in your sentence for the fact you pleaded guilty and did so at a very early stage. In fact, as I have outlined, you were even prepared to, and did actually plead guilty at committal, to the more serious charge of aggravated carjacking, which is to your credit. In pleading guilty you facilitated the course of justice and took legal responsibility for your crimes. You have also spared Ms Newland and other witnesses the ordeal of coming to court to give evidence and going through the court process.
Your character and risk of reoffending
41You have a relatively limited prior criminal history dating back to 2014 when you would have been 19 years old and mostly consisting of family violence matters and some other violence and dishonesty offences. You have been sentenced to fines, Correction orders, suspended sentences and three terms of imprisonment totalling less than one month.
42Mr Dogger submitted your priors are mostly for offences not obviously relevant to the present matter. It is true they were of a different type, but unfortunately what they demonstrate is that you have not been deterred by the sentences previously imposed. Not only have you not been deterred, the current matter is a significant escalation in your offending. The fact you were prepared to commit such a serious crime for such a trivial reason is concerning.
43You have a number of things going for you that many people who come before the courts do not have. You have had a relatively good employment history, including in prison, and have supportive family and have no mental health issues. You also now have the motivation to abstain from illicit drugs given you want custody of your daughter.
44All up, I consider your prospects to be reasonable. You do have the ability to make something of yourself upon your release if you choose to do so.
The burden of imprisonment
45In determining the appropriate sentence, I must consider the impact of a term of imprisonment on you. I accept that you are finding imprisonment difficult because of the worry about your daughter and the fact you only have limited contact with her. Other than that, it does not appear that there is any particular burden on you over and above any other prisoner.
Purposes of sentencing
46I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required. Of course, that sentencing principle has been modified somewhat by the mandatory sentencing provisions applicable to you which I have already outlined.
47The sentencing principles of general deterrence and denunciation are important for offences of carjacking. The punishment must be such as to deter people who are tempted to commit such offences from doing so. Further, given your history, the principles of specific deterrence and community protection also have a role to play. I do not consider it appropriate to order a term of imprisonment on the carjacking and a Correction order on the assault charge. Not only is such a sentence somewhat artificial given the overlapping elements, your offending is too serious. Nothing other than a term of imprisonment involving a head sentence and non-parole period is called for. That said, I will accede to Mr Dogger’s submission that I fix a relatively low non-parole period to account for your prospects of rehabilitation.
48Finally, to avoid punishing you twice for the same behaviour and because your two offences are founded on the same facts, I am imposing an aggregate sentence on them.
Sentence
49I convict and sentence you on the two charges to an aggregate term of imprisonment of three years, and in respect of that sentence I fix a non-parole period of two years.
50I declare you have already served 226 days of imprisonment, not including today, in respect of that sentence, and I order this declaration be entered in the records of the court and the period deducted administratively.
Licence disqualification
51I recognise that cancellation of a licence is a form of punishment and that it is particularly onerous in country areas. The prosecution submitted that your offending, in particular the carjacking, was a serious motor offence under s87P of the Sentencing Act because you were alcohol-affected at the time. If that was the case the minimum disqualification period of 12 months under the Sentencing Act was applicable. Mr Dogger, on the other hand, submitted there was insufficient evidence to make that finding. As I said to Mr Dogger, it is not necessary for me to make that determination as in my view I should cancel and disqualify your licence in any event for at least 12 months. Driving is a privilege, not a right, and if you choose to steal another person’s car with force or threat of force, it is only right that you forfeit that privilege. The non-parole period that I have imposed will mean your earliest release date will be sometime in February 2027. I will cancel and disqualify your licence under s89A of the Sentencing Act for 12 months effective from 1 February 2027. Of course, it is not up to me whether you are released at the end of your non-parole period, that is up to the Adult Parole Board.
Section 6AAA
52If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of four years with a non-parole period of three years and six months.
53Mr Kilpatrick, do you understand the sentence I have imposed.
54ACCUSED: Yes, Your Honour, thank you.
55HER HONOUR: All right. Anything else.
56MR O'DOHERTY: No, Your Honour, no.
57MR DOGGER: Not from me, Your Honour.
58HER HONOUR: Thank you, I'll leave the bench.
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