Director of Public Prosecutions v Kilpatrick

[2020] VCC 379

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02069

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODIE KILPATRICK

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2020
DATE OF SENTENCE:	1 April 2020
CASE MAY BE CITED AS:	DPP v KILPATRICK
MEDIUM NEUTRAL CITATION:	[2020] VCC 379

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:

Cases Cited:Re Broes [2020] VSC 128; Re McCann [2020] VSC 138; Brown v The Queen [2020] VSCA 60

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter	Office of Public Prosecutions
For the Accused	Mr J. Lowy	Emma Turnbull Lawyers

HIS HONOUR:

1Brodie Kilpatrick, you have pleaded guilty to a charge of carjacking under
s.79 of the Crimes Act.  The maximum penalty for this offence is 15 years' imprisonment.

2Carjacking is classified as a category two offence under the Sentencing Act.  As such, the court must make a custodial order for category two offences unless you are found to fall under one of the exceptions.  A custodial order does not include a combination sentence of imprisonment with a community corrections order.  I shall return to the relevant principles later in these remarks.

3The Crown seeks to have your license cancelled under s.89(4) of the Sentencing Act.

4You have admitted prior convictions.  I shall also say something about these later in these remarks.

5The Crown tendered a Summary of Prosecution Opening on the plea as
Exhibit A.  A summary of your offending is as follows.

6Late on the night of 1 April 2019, you used social media to have a conversation with your friend, Christopher Anguerre.  Mr Anguerre is one of the two victims in this matter.  You told Mr Anguerre that you had been in a fight, that you were hiding from the aggressors, and you asked him to pick you up in his car from a street in Frankston.

7When Mr Anguerre and his friend Mr Lee arrived in Mr Anguerre's car, another of your friends, Canon Green, approached the car.  After a brief conversation in which your name was mentioned, Mr Green opened the driver's side door, reached in and took the keys from the ignition.  Both Anguerre and Lee noticed that Mr Green was carrying a knife in a sheath on his hip.  The two got out of the car and Green got in the driver's seat.  When Mr Anguerre looked into the car, he saw that Mr Green was holding the knife.  Green drove away and the two victims fled and called 000.

8When Green returned, you got into the car and drove it away to an unknown address in Adib Court, Frankston.

9On 2 April 2019, Green attended Frankston police and was arrested.  He made no admissions and denied having involvement in the matter.  On the same day, you messaged Anguerre and told him you had a rough idea who stole the car.

10On 4 April 2019 the car was recovered.  It had been involved in an accident and was found in the possession of unrelated people.

11On 7 April 2019 you messaged Anguerre and asked him to call the police and tell them that you had stolen the car.  You told Anguerre that you would hand yourself in to the police.

12Police executed a warrant at your home on 8 April 2019 and found a relevant knife.  Green was then re-arrested and remanded in custody.  He is due to face trial on 11 May 2020, on a charge of aggravated carjacking.

13On 16 May 2019 you were arrested and interviewed.  You made a series of denials and lied to the police about your knowledge of and relationship with
Mr Green.  You denied being present on CCTV footage obtained at the time of the offending.

14You have been on remand since 16 May 2019 and you have now served 321 days, excluding today, by way of pre-sentence detention.

15Your plea of guilty was entered before evidence was called at your committal on 12 September 2019.

16The Crown outlined the case against you for carjacking on the following basis:

·the plan was made by you with Green to steal Anguerre's car by threat or use of force;

·Green was the principal offender;

·you are not aware that Green had or would use a knife;

·you are not charged with aggravated carjacking; but

·the car was taken pursuant to the plan you made with Green

17I turn and consider the objective seriousness and your moral culpability for your offending.

18It is apparent that your offending has had a considerable effect on the victim.  The victim impact statement speaks of the ongoing difficulties and fear your victim endures.

19Whilst you were not a principal to the offending, you played a substantial role in its planning.  It is apparent that you were involved in planning the offending because Anguerre was a friend of yours and not of Green.  It was you who lured Anguerre to the scene where you knew Green was waiting to take his car by force.  Although you did not know that Green was carrying a knife (and therefore you are not charged with aggravated carjacking), you played your further part by assisting in the removal of the car from the scene once Green had stolen it.

20Your offending is serious, and your moral culpability is high.  Your actions must be met by principles of deterrence, denunciation, and a measure of protection of the community.

21I turn now to your personal circumstances.

22You are 23 years of age and you were born on 9 July 1996.  Your mother was a chronic drug user who suffered from tremendous health problems through her adult life. She separated from your violent father early in your childhood.

23Your mother re-partnered on two further occasions, but you were subjected to physical abuse by both stepfathers.

24You remained close to your mother all of your life despite the dislocation and disruption.  You attended about 10 different schools before leaving high school part way through Year 9.  At a time you were removed from home by DHS and placed into care.

25Your mother was diagnosed with emphysema in 2013 and then died in 2016.  You were caring for your mother at the time of her death.  At this time you were evicted from the family home, became homeless, and your drug use spiralled.

26You have three brothers and you are in regular contact with one of them.  It is apparent that the family has separated and dispersed.  As I say, however, you are still close to your brother Dylan.  Dylan has had considerable difficulties with drug addiction and criminal offending in the past, but he is now sober and is the primary carer for his four-year-old daughter.

27In 2017, you were placed on your first community corrections order for a period of two years for property damage, assault, recklessly cause injury, unlicensed driving, and fail to answer bail.  Then, in September 2018, you were convicted of attempted armed robbery, and served a period of eight months imprisonment (that is, the period you had already served by way of pre-sentence detention) and placed on a further community corrections order for a period of 12 months.

28In October 2018, you were dealt with for breaching the first community corrections order and placed on a further order for a period of 18 months.

29This offending breaches both community corrections orders.  These contraventions remain outstanding.

30You have been binge drinking since the age of 12.  You first used cannabis at 13 and used a range of other drugs including methamphetamines since the age of 14.  Leading up to this offending you were abusing methamphetamine, opioids, and GHB.

31In addition to your drug use, it is apparent that you have suffered from long-standing mental health issues.  In 2018, a report was prepared by Carla Ferrari psychologist for your court appearance in that year.  Ms Ferrari concluded that you suffer from major depressive disorder, ADHD, cannabis dependence, and amphetamine substance use disorder.

32Since you have been in custody on this occasion, you have been prescribed the antidepressant Avanza.  You have not otherwise previously been treated for mental health issues.

33You were assessed by Dr Matt Treeby neuropsychologist on 10 February 2020.  Dr Treeby's report documents your reported alcohol and drug intake.  Dr Treeby assessed your full-scale IQ at 70 which is in the mild intellectual disability range.  In addition, Dr Treeby concludes that you meet the criteria for a diagnosis of adjustment disorder with mixed disturbance of emotions and conduct.  Your mild intellectual disability means you would find a custodial term more onerous than someone in good health; your mental health is more likely to deteriorate in custody and your cognitive limitations find you more vulnerable in that custodial setting.  In addition, Dr Treeby concludes that you meet the diagnostic criteria for alcohol use disorder, stimulant use disorder (amphetamine-type), other substance use disorder (GHB), and cannabis use disorder, all of which are in remission in the controlled environment of prison.

34Dr Treeby concludes that you will require a substantial amount of support on your release from custody to minimise the chances of recidivism.  Finally,
Dr Treeby concludes that you would benefit from a referral to the NDIS. 
Dr Treeby fears that your offending behaviour may become enduring without appropriate intervention.

35You spent only six months in the community between periods of imprisonment.  In that time, you formed a relationship with a friend of yours from the last couple of years, Nadine Wheatley.  Ms Wheatley lives with her terminally ill father and her five-year-old daughter.  Ms Wheatley has no drug or criminal history.  Your counsel Mr Lowy characterised this as a significant and important protective factor in your life which has previously been lacking.  He attributed her influence as the reason you were able to maintain your sobriety in the one month period after your offending and before your remand in custody.

36You intend to live with Ms Wheatley upon your release from custody.  You have a good relationship with her father and with her daughter.

37Notwithstanding the conclusions of Dr Treeby as to your vulnerability in custody, you told your counsel that you have had a better time since your remand at Ravenhall with its greater focus on rehabilitation, than in your first four months which were spent at Port Phillip prison.

38In response to the current environment, Mr Lowy put considerable effort into providing me with comprehensive, intelligent written submissions.  I can say that they were of considerable assistance in formulating my reasons for sentence.  I can say the same of Ms Baxter, who appeared on behalf of the Office of Public Prosecutions.

39Mr Lowy submits that this is not the most serious incident of carjacking but concedes it is still within the category of violent offending.

40Overall Mr Lowy submitted that I should find that s.5(2H)(c)(ii) of the Sentencing Act applies; that is that you have proved on the balance of probabilities that you have impaired mental functioning that would result in you being subject to substantially and greater than the ordinary burden or risk of imprisonment.

41Mr Lowy submits this arises from Dr Treeby's report and from a combination of factors that you face.  The effect or consequence of this is that by such a finding, I would be able to impose a combination sentence in this matter.

42Overall, Mr Lowy submits that you are not an ideal vehicle for deterrence given your mild intellectual disability.

43Further, Mr Lowy referred to the passage of Justice Lasry in Broes, the passage in McCann, and in the Court of Appeal its observation in Brown on the question of taking into account in the sentencing process the effect of the covid-19 virus on the prison population.

44Finally, Mr Lowy referred to the type of intervention Dr Treeby suggested and submits that you will have difficulty accessing these types of services in prison, especially if there is a lockdown.  Mr Lowy submits you will have better opportunity to access medical and mental health services in the community than you would in prison.

45In my view, the evidence of Dr Treeby falls short of satisfying me that your cognitive functioning imposes a substantially and materially greater burden on you than other prisoners.  Nor am I satisfied that you meet the other criteria for the exception provided by s.5(2H), which require me to be satisfied that because of the existence of a factor or a combination of factors which are exceptional and rare, that you should be excepted from the prima facie operation of the category 2 sentence of imprisonment.

46I have considered the combination of factors submitted by your counsel and have taken into account written and oral submissions of Ms Baxter on behalf of the OPP.

47I am satisfied that in pleading guilty to this offence you have exhibited some insight and a desire to take responsibility for your offending.  In this respect, I have regard to the conclusions of Dr Treeby, who considers that you have exhibited some remorse.  I also take into account that you are still a relatively young man.  It seems that you have begun to take steps towards your rehabilitation, and that you have some protective factors in place when you are released from custody.

48Nevertheless, it seems that you will need a considerable degree of support, structure and intervention upon your release to ensure that you do not lapse back into drugtaking and potential homelessness.

49Bearing those factors in mind, I consider that the most appropriate way to achieve a structure is to give you the opportunity to serve a period of parole.

50Accordingly, on the charge of carjacking, you are convicted and sentenced to a period of 17 months' imprisonment.  I order that you serve a non-parole period of 11 months.

51I declare the period of 321 days pre-sentence detention, excluding today, reckoned as already served. Your license is cancelled. I am satisfied of the criteria provided in s.89 of the Sentencing Act, and your license is cancelled for a period of six months.

52The s.6AAA declaration, is that but for your plea of guilty, I would have sentenced you to a period of 22 months' imprisonment.

53So if I can just explain the reasoning behind my sentence.  The period of 11 months is 334 days.  In that time, that will give Mr Kilpatrick the opportunity to get his affairs in order, for the matter hopefully to come up to the attention of the authorities for a parole consideration.  I am going to ask my associate, Ms Phillips, to make a copy of my sentencing remarks, available to the parole authorities as soon as they have been revised.

54MR LOWY:  Thank you, Your Honour.

55HIS HONOUR:  So, the idea is, Mr Kilpatrick, I cannot guarantee that will you get parole, but it seems to me that you have a number of things going in your favour, and I am taking steps to ensure that so far as possible, I have done what I can to ensure that all those matters are brought to the attention of the parole board.  All right.

56ACCUSED:  Yes, all right.

57HIS HONOUR:  On my reckoning, you have got 13 days to go before you are eligible for parole.  I hope that your next little period goes all right, and I wish you luck into the future.

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