Director of Public Prosecutions v Kilpatrick

[2021] VCC 1480

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

      Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00956

CR-18-00903

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODIE KILPATRICK

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 October 2021
CASE MAY BE CITED AS:	DPP v Kilpatrick
MEDIUM NEUTRAL CITATION:	[2021] VCC 1480

REASONS FOR SENTENCE

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Subject:

Catchwords:  numerous breaches of a community correction orders– attempted robbery -  

armed robbery – possess a controlled weapon without lawful excuse –

extensive criminal history – long history of illicit substance abuse - mental

health disorders and mild intellectual disability warranting some reduction in

moral culpability – high risk of reoffending - community protection - special

and general deterrence.

Legislation Cited:

Cases Cited: Verdins, Bugmy

Sentence:     Total effective sentence of 3years and 2 months imprisonment with a non-

parole period of 24 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Watson
For the Accused	Ms S. Gillahan

HIS HONOUR:

1Brodie Kilpatrick, in order to place this matter in the right framework of time which leads to this sentence I will set out the matters which are relevant in a chronological sense.  You were born in September 1996.  You were 20 years of age when on 28 July 2017 you first appeared before a court charged with the theft of a motor vehicle, dealing with property suspected of being proceeds of crime, wilful damage, assault, affray, recklessly cause injury, unlicensed driving and fail to answer bail.

2You were convicted in the Magistrates' Court and placed on a community correction order for two years to perform 250 hours of community work as well as other treatment and rehabilitation conditions, particularly anger management.

3While subject to that order on 23 February 2018 you committed an attempted armed robbery and you were remanded on that day.  In May of 2020 at a committal mention you entered a plea of guilty and a plea proceeded before me on 3 September 2018.

4On 14 September 2018 I sentenced you to eight months' imprisonment with a 12 month community corrections order and declared 198 days of pre-sentence detention and order 200 hours of community work together with other considerations and conditions.

5A community corrections order commenced on 27 October 2018 upon your release from custody and two days later on 29 October 2018 a variation was made to the Magistrates' Court order imposed on 28 July 2017, upon proof of that order's contravention, varying that order to 18 months' duration with 200 hours of work.

6As to the community corrections order imposed by me beginning on
30 November 2018 to December 2018 there are a number of instances of non-compliance by way of absences from work and treatment conditions.  These continued into February 2019.

7Two judicial monitoring dates on 11 February 2019 and 1 March 2019 made efforts to encourage you to comply with the orders on foot.  However, on two dates in April and May of 2019 you committed further offences.  On 2 April you committed a carjacking using force to steal a vehicle, and on 16 May you drove in a dangerous manner, failed to stop on direction of police, you were unlicensed and you were driving an unregistered vehicle.  You were again remanded.

8By 26 October 2019, while you were still on remand, the order I had made expired.  You remained in custody until 1 April 2020 when His Honour Judge Lyon sentenced you for the carjacking offence to 17 months' imprisonment with a non-parole period of 11 months and declared 321 days of pre-sentence detention.

9On 8 April, a week after His Honour's sentence, you were dealt with for the driving offences of May and you were fined $2500 and your licence was cancelled.  On 17 April 2020 you became eligible for parole on His Honour's sentence.

10On 5 May 2020 a charge and summons issued for the contravention of the order I imposed upon you in September 2018.  That was based on contravention in relation to non-compliance rather than further offending, and that is the basis upon which I deal with you today.

11In August 2020 breach proceedings were commenced in relation to the variation order of 29 October 2018 of the original order of the Frankston Magistrates' Court of July 2017.

12The matter returned before me in June 2020 for a breach of the community correction order.  The contravention was said to consist of failure to perform work on 14 occasions, and failure to attend assessment and treatment and testing six times between September 2018 and May 2019.  It was also during that latter time that you committed the further offending.

13At the of the hearing you were in custody and you were eligible for parole on 14 October 2020 if you were to have served a head sentence of 17 months imposed by His Honour Judge Lyon.

14The correctional services recommendation was for the order to be cancelled and to be resentenced.  On that occasion I adjourned the hearing on a number of bases in order to obtain further material by way of an extended pre-sentence assessment report from Corrections.

15That report was received and is dated 19 August 2020 authored by Karen De Silva and Ashley Clark from the Frankston Community Correctional Services Court Assessment and Prosecution offices.

16The matter came before me again on 6 October 2020 and on 7 September 2020 a report from the senior practitioner with Forensic Disability State-wide Access Services with DHHS as it then was, had been received by the court, in effect a statement of intellectual disability.

17You were found to be suitable to receive supports from the Forensic Disability Program.  A disability overview report from the department dated 6 October 2020 and authored by Ms Chizio was received by the court, together with a justice plan.

18On that date I resentenced you and imposed the original sentence I had imposed of eight months' imprisonment with a 12 month community corrections order of 200 hours of unpaid community work.

19On the 8th, two days later, you were released from custody and the order commenced.  It was predicated on the correctional services being the agency once again to supervise you and to implement in effect the plans I have referred to previously.

20The justice plan authored by Ms Chizio has sought to address your specific needs, to address your offending behaviour by recommending available services aimed at reducing the likelihood of reoffending.  It was recommended therefore that you engage with disability justice, agree to any forensic disability supports and treatments as identified by the disability justice coordinator, including an assessment for treatment with the Disability Forensic Assessment and Treatment Services.

21The overview report had identified your disability and your current circumstances, including what was said that your desire for employment options and independent living, your motivation to engage with supports and insights into the consequences of your offending on the victims.

22The extended pre-sentence report dated 19 August 2020 is also a very comprehensive assessment.  It identified your high risk of reoffending.  It addresses all the relevant factors, in particular your unstable accommodation, which may have hindered your response to the community correction order conditions, and a number of conditions were recommended and noted by the court.

23On 19 December 2020, however, you committed an armed robbery, an attempted armed robbery, and you were in possession of a controlled weapon without excuse.  You were remanded in custody upon your arrest on
22 October.

24The second community correction order which I imposed on 6 October 2020 expires on 7 October 2021, that is in a few days.  A contravention report tendered in relation to this contravention dated 20 July of this year found you unsuitable for a further community correction order, and recommended cancellation and resentencing.

25Pursuant to R v Lew it was at that time said that the 422 days by way of pre-sentence detention was available to be declared at the time, although that may in fact be 242 days, which approximates eight months.  The matter pending arising out of the offending of December 2020 was to proceed by way of a plea, alongside the contravention before me on 16 September 2021.

26You now come before me to be dealt with for the contravention of the order I made in this court in relation to the attempted armed robbery on 23 February 2018 by way of resentencing you on the original offending, and to impose a penalty on the breach.

27The offending was summarised in my sentence of 14 September 2018 and I will summarise those circumstances briefly.  You were 21 years of age.  On 23 February 2018 the victim, a pizza delivery driver, was making a delivery when you approached him while holding a large wooden stick which you held up like a sword.  You wanted the keys to his vehicle.  You were yelling threats and making demands as you ran into the house.

28You hit the car with your stick and fled.  When you were arrested five days later you admitted the offence, saying that you were drunk and not thinking straight and that you then went to an abandoned house and fell asleep in its backyard.

29The offending was opportunistic, spontaneous and peculiar.  You were undisguised and with an improvised weapon and no plan or coherence.  No injuries were inflicted and I accept that it was the result of a confused, intoxicated mind affecting judgment and reason, but nevertheless serious.

30You are a youthful offender, immature and lacking insight.  Circumstances of your prior from July 2017 were very similar to the circumstances of this offending except that you caused injury on that occasion.  You were placed on a community correction order, and although you initially complied with the requirements, by October of 2017 your commitment had declined, completing only 27 hours of the required 250 hours.

31By February 2018 you had committed this offence the subject of my order.  I found that based on your history your prospects were guarded. I took your personal circumstances into account which I summarised in my sentence.  These included your use of methylamphetamine at age 14, your mother's death in 2016 and your homelessness.

32I took into account a report of Ms Ferrari, a psychologist, and its contents.  She traced your difficulties and dissent into street life and struggles.  You expressed remorse for this behaviour which I accepted was committed in the midst of self-destructive, angry and grieving period leading to criminal conduct.

33I took into account you had already served some six and a half months in pre-sentence detention and decided to give you another opportunity to reform after completing a term of eight months.

34At the time of the sentence I emphasised to you that this was your opportunity to rehabilitate.  I indicated that but for your plea I would have sentenced you to 15 months' imprisonment.

35As to the offending in December 2021, the circumstances of the offending were not in dispute.  You pleaded guilty to one charge of attempted robbery and one charge of armed robbery, as well as one related summary offence of possession of a controlled weapon, a meat cleaver, without lawful excuse.

36On 19 December 2020, at about 11.30 am, a 73-year-old man left the Ashburton public library that he had visited and walked past you.  As he did so you demanded his money, which demand he refused.  He walked down the street towards some shops and you followed him.  You again approached him and demanded his phone, which he refused to hand over to you.

37You were aggressive and threatening.  You told him that you had a knife and the man took out his phone to photograph you.  At this you told him that you had a machete, that you knew where he lived and that you would follow him home.

38You then struck him to the right side of the head as he was backing away from you, knocking him down into a garden bed.  Passers-by came to his help.  As you walked away you said, 'I'm going to get you and don't call the police'.

39The man felt scared and intimidated and called the police immediately.  Witnesses in the vicinity saw your assault on the elderly man and ran out in front of traffic and then you would zigzag your way as you yelled out in an aggressive manner.

40A young boy in the vicinity who had seen you took a photograph of you which he then sent by phone text message to the elderly man who you had assaulted and attempted to rob.

41About an hour later a younger man aged 18 was on a train from Ashburton to Camberwell.  He was sitting at the back of the train carriage.  You entered the carriage, walked towards him and sat opposite him.  You asked him if he had cash or cigarettes and he replied that he did not.

42You then asked to know what was in his backpack.  The young man tried to stand and move away from you, but you restrained him and pulled him back down onto the seat.  You then opened your jacket to reveal a knife you had in your waistband of your pants.

43You pulled it out and showed the young man at a time when you were at arm's length away.  The young man was fearful and panicked.  Speaking softly so as not to be heard you demanded to go through his backpack.  You pulled out items from his bag, you threatened to cut the young man with a knife.

44He handed you a bottle of aftershave.  You then proceeded to tell him that you were going through a tough time and that you were not a bad person.  When the train arrived at Camberwell station you both got off the train.  A few moments later the young man got back on the same train headed towards Flinders Street station, and you followed him back into the same train carriage.

45You said to him, 'If you call anybody I'll find your family.  I know people.  I've done gaol time', and later, 'It's not my fault, it's just your unlucky day'.

46Later that day police found you unconscious on a footpath in Botanic Ridge where you lived near Cranbourne.  A large meat cleaver was found near you.  you were taken to a hospital for mental health assessment.  You were arrested a couple of days later, you were interviewed and you denied committing the offences, saying you did not recall being near Ashburton library or having been on a train.

47The CCTV footage stills, as well as the photograph taken by the young boy, were identified by you as being yourself.  You said this was around the anniversary of your mother's death, that you had been having a bad day, that you drunk vodka on that day and you remembered taking the knife from your brother's house.

48Both the elderly gentlemen and young man declined to provide victim impact statements in this case.  Even though I cannot speculate as to the impact upon them specifically, I can determine that your dealing with them, your aggression and threats would objectively cause fear and consternation to them.

49They were entitled to go about their business peacefully and safely and by your behaviour you have created situations of anxiety and apprehension in public, on public streets and on public transport facilities.

50Armed robbery carries a maximum penalty of 25 years' imprisonment, and an attempt to rob carries ten years.  By these maximum the parliament has indicated that these are serious criminal offences.  The absence of other common features like a disguise or acting in company or acting at night maybe missing in your offending, but nevertheless the attempt is aggravated by the assault on the elderly gentleman and the armed robbery made worse by the threats uttered by you to the young man.

51What is of most concern in your case is the repetition of this type of offending in your recent history and the fact that you were the subject of a community corrections order imposed upon you after being dealt with for the breach of an earlier community corrections order.

52These reflect the attempts that have been made by courts in sentencing you, directed at facilitating your rehabilitation.  A number of programs have been made available to you to assist you to deal with the matters that beset you, but up to this point these efforts appear to have failed.

53You pleaded guilty to this offending at the earliest reasonable opportunity and this plea will reduce your sentence.  It has I accept utilitarian value of having avoided the need for a criminal trial.  The plea is an acceptance of responsibility and evidence of some remorse.  It was made at a time when finality of matters is important as the criminal justice system struggles to deliver outcomes in a time of pandemic.

54It is also made a time when there is a reasonable expectation of imprisonment in a period of pandemic which increases its value accordingly.  This also recognises that any time of reclusion will be affected firstly by the danger of exposure and contamination in the closed environment of a prison as we have recently seen in New South Wales prisons, which naturally increases the burden of incarceration.

55It also does so because the pandemic has restricted the movement and opportunities of those imprisoned and has meant frequent lockdowns and quarantines has limited opportunity for education, vocational training, work and contact with family visits to some physical extent, all rendering imprisonment more burdensome.

56I take all of these matters into account.  I have commented on your background and personal circumstances as well as to your prior criminal history which include an unlawful assault in July of 2017 and a reckless cause injury of July 2017, theft of a car, dealing with proceeds of crime, attempted armed robbery in September 2018, carjacking in April 2020, as well as contravention of a community corrections order.

57You have served two periods of imprisonment, in 2020, 17 months, and eight months in 2018.  After the last period of imprisonment leading up to the offending you were released into a community in lockdown.  There may have been some difficulties with the engagement, communication and focus on your rehabilitation at that time.

58However, soon after your release your brother was remanded and subsequently sentenced.  He is a drug user and returning to live with him meant you soon relapsed into drug use yourself.  He is the only family member in effect that you have.

59You were homeless, drinking heavily, couch surfing and taking Xanax.  Your mother died in September 2016.  It was said your conduct was in part related to grief mechanisms in that period, and the increase in drug use to self-medicate.

60I am not in a position to say whether this is a matter which is necessarily linked to your conduct.  In my view, as was acknowledged during the plea, your prospects of rehabilitation are guarded, but I am not prepared to say you are incorrigible or beyond rehabilitation.

61The long-term interest of the community and of you should consider prospects as extinguished only in very rare cases.  They are not in your case, and I will give relevant weight to this aspect of sentencing principles.

62I accept that because of your background and your mental health status your moral culpability is reduced.  There are some aspects which act as counter balancing the lessening of general and specific deterrence.  They are your drug use, which was concomitant to your mental health, the need to protect the community from this type of conduct and your prior history.

63I share His Honour Judge Lyon's view that I am not persuaded as to the application of Verdins in your circumstances, but as I have already expressed in the plea, the concepts in Bugmy and your mental state in themselves call for a reduction in your moral culpability which I will apply.

64I, with His Honour, am not persuaded that your state will mean incarceration will have created a much greater burden in your case, but there is no gain in saying, as I explained before, that incarceration during this period of pandemic is rendered more burdensome and I will take this factor into account.

65I accept that you appear open to engage in rehabilitative processes and you have of late been keen and proactive in seeking counselling and the prospect of residential rehabilitation.  It will really be up to you on your release to realise that new found intention.

66In this context I have considered the letter of Elizabeth Days, the disability justice coordinator, dated 3 September 2021 and its contents.  I have taken the details of your personal background into account as set out in detail both in the report of Dr Matt Treeby dated 9 August 2021 and in the fulsome submission of counsel upon your plea.

67Although you are an Aboriginal man you are disconnected from this culture and you have had no contact with your father after significant family violence at his hands.  You experienced family violence and substance use, a disrupted educational history and a poor work history.

68You have had a long history of illicit substance abuse.  Your mild intellectual disability has been referred to in the materials and in particular Mr Treeby's report which is particularly detailed with marked cognitive limitations across cognitive domains coupled with a major depressive disorder, alcohol use disorder, stimulant use disorders.  I accept that you may be more vulnerable in a custodial setting to manipulation and negative influence.

69It is clear you have difficulties conforming to social norms with the respect to lawful behaviour and increasingly it was said in the report you appear to have some anti-social personality traits.  Your criminogenic needs will be high and will need to be addressed.

70I accept the relevance of your background of abuse and violence which go to mitigate sentence and these factors do affect moral culpability and are to be given full weight in the determination of this matter.

71These matters also bring into consideration as I have said community protection.  I have given careful and long consideration to the principle of totality in this case.  It is a complex exercise.  The later offences were committed during the course of conduct, and although distinct, they will carry some measure of concurrency, although the penalty must reflect their separate nature.

72The contravention of the community correction order and its penalty is constrained by three month maximum and the resentence must be imposed cognisant of the time already served under the initial sentence and the efforts, although limited, during the course of the community corrections order itself by way of work and supervision attendance.

73I have looked specifically to those matters.  I also must consider the totality and must keep in mind the 17-month sentence served in relation to the matters that His Honour Judge Lyon imposed upon you in order not to render this ongoing period of imprisonment tending towards institutionalisation or crushing of your prospects.

74On the original sentence you are sentenced to nine months' imprisonment.  I declare you have served eight months of that sentence upon earlier sentence being imposed.  On the contravention you are sentenced to one month imprisonment cumulative upon the nine months, in effect leaving you with two months to serve on that matter of the community correction order resentencing.

75This period of two months will be cumulative on the sentence I impose on the subsequent offending.  Before I announce it can I just ask Ms Watson and
Ms Gillahan, is there an agreed figure for the pre-sentence detention that is applicable to that particular matter?

76MS WATSON:  The calculation of the matter is subject to the indictment are 286 days.

77HIS HONOUR:  Yes, that is excluding today?

78MS WATSON:  Yes, Your Honour.

79HIS HONOUR:  That is agreed to, Ms Gillahan, is it?

80MS GILLAHAN:  Yes, Your Honour.

81HIS HONOUR:  Thank you.  On the attempted armed robbery you are convicted and sentenced to one year and six months' imprisonment.  On the armed robbery you are convicted and sentenced to two years and six months' imprisonment.  On the summary related charge of possessing a controlled weapon you are convicted and sentenced to two months concurrent.

82I order that six months on Charge 1 be cumulative on Charge 2.  Together with the two cumulative months on the resentencing that makes a total of three years and two months.  I order a non-parole period of 24 months.  I declare you have served 286 days excluding today by way of presentence detention and I have that number noted in the records of the court.

83But for your plea on the subsequent offences a total effective sentence would have been of four years with a two and a half years non-parole period.  I have signed a disposal order.  Is the effect of the sentence clear?

84MS GILLAHAN:  Yes, Your Honour.

85MS WATSON:  Yes, Your Honour.

86HIS HONOUR:  Thank you.  Thank you both for your assistance, yours in particular, Ms Gillahan.

87MS GILLAHAN:  As Your Honour pleases.

88HIS HONOUR:  Sine die.  Ms Gillahan, you may if you wish take the opportunity in that you are connected to the place where Mr Kilpatrick is to speak to him if you wish and I am happy for you to continue with the link and I will simply leave the meeting.

89MS GILLAHAN:  Yes, Your Honour, thank you.

90HIS HONOUR:  Thank you.

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