Director of Public Prosecutions v Kilpatrick

[2018] VCC 1963

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02119

DIRECTOR OF PUBLIC PROSECUTIONS

v

DALE KILPATRICK

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 November 2018
CASE MAY BE CITED AS:	DPP v Kilpatrick
MEDIUM NEUTRAL CITATION:	[2018] VCC 1963

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms E. Ramsey
For the Accused	Ms H. Bate

HER HONOUR:

1Dale Kilpatrick, you have pleaded guilty before me to one charge of aggravated burglary, one charge of theft and one charge of possession of a drug of dependence, that being steroids.  You have also pleaded guilty to two summary charges, they being one charge of possession of a prohibited weapon which is a Samurai sword and one charge of failing to appear on 24 May 2017.

2The facts underlying this offending are as follows.  The complainant or victim in this matter is one Ron Carucci, the two of you having been friends for about seven years and with whom you were living at the end of 2015.  In April 2016, Mr Carucci said you could no longer live at the house and you thereafter moved out, leaving behind a tanning bed which was stored in Mr Carucci's garage.  At about 4am on 11 June 2016, you and an unknown person went to Mr Carucci's home, approaching the front door and knocking loudly and in the process waking Mr Carucci and his girlfriend, Leah Kaminsky, who were asleep in the lounge room at the front of the house.

3Mr Carucci yelled out, "Who is it?" and you replied, "It's Switcher".  After being asked by Mr Carucci what you wanted, you said you had come for the tanning bed, but Mr Carucci said that as it was 4am, he would not let you into the house.  You continued to ask for the tanning bed and began to bang on the door more loudly and Mr Carucci yelled out to his girlfriend and told her to go to their bedroom.  Mr Carucci opened the door and asked what you were doing and you said you were getting "your stuff".  Mr Carucci said he was going to call the police and walked from the door, at which time you entered.  Those actions underlie Charge 1 on the indictment, aggravated burglary.

4The unknown person with you then smashed the front door with a metal pole and he also entered the house, although it is accepted by the prosecution that you were not acting in concert with this unknown person.  The unknown person entered the house and went towards Mr Carucci with a steel pole, holding it above his head and bringing it down on Mr Carucci who blocked the strike with his forearm.  Mr Carucci ran up the stairs to his bedroom and as he was doing so, the unknown person swung the steel pole at him again which hit one of the staircase balustrades.  Mr Carucci went into his bedroom and locked the door behind him and could then hear both the unknown person and yourself moving about the house downstairs.  After about five minutes, Mr Carucci and
Ms Kaminsky came out of the bedroom having heard both you and the unknown person leave.

5Mr Carucci then discovered that two iPhones and two laptops were missing.  The theft of those items from him underlie Charge 2 on the indictment, theft. 
Mr Carucci then called police who attended soon after, locating the large steel pole on the nature strip.  At about 6 to 7am, Mr Carucci used Ms Kaminsky's mobile phone to activate the find my phone application on one of the stolen iPhones which showed it to be located in Acacia Street, Doveton.

6On the morning of 13 December, police executed a search warrant at your address, at which time you were not present. No stolen items were located.  However, they did locate a Samurai sword, which underlies Summary Charge 6, possession of a prohibited weapon and a white plastic pill container, containing 51 pink steroid tablets, which underlies Charge 3 on the indictment, possession of a drug of dependence.

7You were bailed to appear at the Melbourne Magistrates' Court on 24 May 2017, but failed to do so and these actions underlie Summary Charge 11, fail to answer bail.  By appointment on 14 September 2016, you attended the Dandenong Police Station where you were arrested and in a record of interview said that you had attempted to call Carucci, but that he did not answer, and therefore had gone to his house to get your tanning bed back and there had a discussion with Mr Carucci at the front door and that when Mr Carucci went upstairs saying he was going to call the police, you walked into the garage and took the tanning bed.

8You said you had driven to the premises alone in a white ute, in which you placed the tanning bed.  You said as you were leaving, you saw a van parked near Carucci's house and that four to five large men walked in the direction of Mr Carucci's address.  The matter proceeded by way of contested committal at which the complainant was called.  Ultimately, the matter settled to a plea of guilty on 14 August 2018, about a month before the trial was to commence.

9The maximum penalty for aggravated burglary is 25 years imprisonment.  The maximum penalty for theft is 10 years imprisonment.  The maximum penalty for possession of a drug of dependence is 400 penalty units, and/or five years imprisonment.  The maximum penalty for failing to answer bail is two years imprisonment.  The maximum penalty for possessing a prohibited weapon is 240 penalty units, or two years imprisonment.  Your bail was revoked on
14 December 2017 and you have remained in custody since.

10I now turn to your personal circumstances.  You are now 32 years of age.  You were 30 at the time of this offending.  You are one of a sibship of seven, having four older half siblings, a younger sister and a younger brother.  You attended Doveton Heights Primary School and Doveton Secondary School where you excelled in sports, especially at football and cricket, pursuing this after leaving school in Year 11.  You did not concentrate on the academic side of things at school particularly.

11You played football and cricket at senior levels and at one stage, had hoped to make AFL level, although this did not happen.  You played football for the Dandenong Stringrays in the Under 18 competition and then as a paid player for Doveton.  You continued playing football until you were 28.  On leaving school, you worked at Sportsmart in Moorabbin, then in demolition for two years.  You undertook a mature age apprenticeship as a mechanical plumber, which you did not complete and then in 2015 and 2016 you worked in civil construction.  In 2017, you were working in casual labouring, working sporadically between May and December 2017.

12The genesis of this offending lies in a relationship you began with your former partner when you were 20, which relationship lasted from about 2006 to 2015 and in 2008, your son Noah was born of that relationship.  In about June 2015, your then partner ended the relationship and you moved back to your parents' home but maintained regular contact with your son.  You were then still on amicable terms with your former partner.

13You began in late 2015, early 2016, a relationship with another woman which was described as toxic and lasted on and off, but you moved out of Mr Carucci's house, back to your parents' home where you were living at the time of this offending.  There were a number of difficulties surrounding you at the time of this offending.  Your father, to whom you are close, was diagnosed with bowel cancer, as was your sister.  You apparently found this extremely difficult to cope with.  Additionally, it appeared that relations between yourself and your former partner soured, in any event, the various emotional difficulties you were going through prompted you to develop what had been a recreational drug use in methamphetamine and other drugs, to the point that you began using daily.  It was in this context that the offending occurred.

14You do have some criminal history, although not a great deal.  You were dealt with in 2007 and 2008 for the summary charges of criminal damage and unlawful assault which you have little recollection of and had been previously fined for carrying a prohibited weapon.  Most significantly, in 2016, you were placed on a Community Corrections Order on charges of making a threat to kill and intentionally damaging property which arose from a dispute with your former partner.

15In any event it appears that after you were charged in relation to this matter, your ice use continued and as is often the case with drug users, it was in that context that you failed to attend court and lost your liberty.  Fortunately for you gaol, and I note you have been held in the Ravenhall Correctional facility, has proved to be beneficial to you.  You have undertaken a number of courses, including drug and alcohol courses.  But most significantly, I received a number of references from those supervising you within the gaol. 

16You have been working in the mainstream industries logistics area and your supervisor there, Graham Eastwood, wrote a very impressive reference saying that you had shown outstanding leadership, responsibility and trustworthiness in the role and that you are often left to run the stores area when Mr Eastwood is called away.  He described you as a pleasure to work with, with a great sense of humour and an easygoing personality. and described you as compliant.

17Again, there was a work report by Rebecca Priyayini Chandran, the Corrections officer who described her work with you as a great journey, seeing in you good progress in character building and organisational skills.  Thirdly, there was a reference from the employment consultant with the Melbourne City Mission stationed at Ravenhall Correctional Centre.  Ms Bregman said she had been working with you in the voluntary pre- and post-employment program to assist you in becoming ready for employment upon release.  She said you had been very engaged with the program, initiating meetings to discuss your progress and displaying eagerness to find sustainable employment, "As well as working towards learning new skills to further enhance his employability".  She said you were contributing in a positive way to your community.

18Again, there was reference from Andrew Martine, a trade instructor at Ravenhall.  He said that you were a leading hand workshop supervisor of logistics.  He said you had a great understanding, met all deadlines, understood why you were in gaol, working towards becoming a better person and noted that you'd attended every program or course that you could to assist with your release.  He said:

"Dale always arrives at work on time and leaves when his jobs are done.  Dale causes no trouble when he is at work and is always happy to give a hand when it is needed".

19He said you gained the trust and respect of other trade instructors and Correctional staff, "To the point where he does most of the forklift driving in industries, workshops".  He noted that you hoped to get into traffic management on your release from prison.  Another reference came from Candice Wright, an employment consultant at Ravenhall, who confirmed that you had been participating in employment support at Ravenhall Correctional Centre since January this year.  She said you had been very proactive in approaching employers in regard to employment post-release and that she will continue you to assist you on your release in order to obtain employment.

20Also, happily, it would appear that Ms Bregman has been instrumental in ensuring that Noah, who is now aged 10, has been able to visit you in gaol and that relations between yourself and your former partner are now amicable, so that it can be confidently expected you will be able to co-parent Noah in a positive peaceful manner on your release from prison.  Importantly, I received the results of two random urine screens conducted in January and February of this year which proved negative for all substances. 

21Overall, it is clear you have used the time you have spent at Ravenhall productively and well.  In addition to the strides that you have made in gaol, your plans on your release from prison are also positive.  You have a relationship with a responsible young woman who is very anti-drugs, who is happy to have you live with her, but as I understand it, has pretty much a zero tolerance to drug use and this would appear to be an appropriate accommodation prospect for you on your release.

22Overall, the offending of course is serious offending, although I note that Mr Carucci declined to make a victim impact statement.  But generally speaking, when courts are dealing with this offending, no matter the wider array of circumstances that underlie, it is expected a stern response will be taken.  It was conceded by the prosecution that the fact scenario underlying this offending places is at the lower end of the range of seriousness applicable to this crime.  It was also conceded by the prosecution that the evidence is that you have undertaken a great deal of rehabilitative work in gaol and that given your prior limited criminal history, your previous good work history, it must be said, and I do conclude that your prospects of rehabilitation can only be regarded as good.

23In the circumstances therefore, it was agreed by the prosecution that a disposition involving a combination of gaol and release onto a Community Corrections Order was an appropriate disposition in this case.  You have been assessed as suitable for a Community Corrections Order and I propose to deal with you by way of imposition of a term of imprisonment which will comprise the time you have already served, together with release on the Community Corrections Order.

24I do need to note, however, that you have some outstanding matters that have to be dealt with.  In the course of the resolution of these matters, which as I have said did involve a committal hearing, you very foolishly got yourself in a position where you now face two charges of harassing witnesses who are involved in this matter.  The first I think was in relation to - was it Mr Carucci himself?

25MS BATE:  Mr Carucci.

26HER HONOUR:  Mr Carucci, who gave his address when giving evidence at the committal and you said to him at the hearing that you now knew where he was living, for which you were given a warning by the informant at the time, but not charged.  Then on a later occasion, you had to attend the Dandenong Magistrates' Court where you spoke to another witness and told him that he would not be getting out without you giving him a flogging. Unsurprisingly, that has therefore resulted in you being charged in relation to both witnesses. 

27It would have been far preferable, had these matters reached a stage where they could have been included in the proceedings before the court today, so that I could have dealt with them.  Can I indicate it is my view, in light of all the materials that I was given in a remarkably well prepared brief that had I been dealing with those matters, I would have still reached the conclusion that I have today, which is that I should deal with you by way of a term of imprisonment, comprising the term that you have already served and released on a Community Corrections Order.  I make that comment advisably, not wishing in any way to interfere with the decision of the Magistrate who will be dealing with your matter.  But it seems to me appropriate to make that comment in light of this outstanding matter that still hangs over your head.

28You may also face as a result of that behaviour, a breach of a Community Corrections Order which you were currently on at the time of this offending.  However, notwithstanding that breach by you and the pending proceedings, as I said, you have been found suitable for a placement on a Community Corrections Order and I will therefore sentence you as follows.  Now can I just be advised by you, if I may Madam Prosecutor Ms Bate, it cannot really be said that the same facts underlie all the charges.  Charges 1 and 2 can.  Charges 3 and the two summary charges sort of cannot. 

29MS BATE:  Stand separately.

30HER HONOUR:  Which means I am going to have to - it would seem a bit of a - is anyone going to worry in the circumstances if I simply place him on a Community Corrections Order for the lot rather than imposing ‑ ‑ ‑

31MS BATE:  An aggregate ‑ ‑ ‑

32HER HONOUR:  ‑ ‑ ‑ two?

33MS BATE:  I think given everything that's conceded between the parties, including the sentence type, it's - nobody would take issue with it.

34HER HONOUR:  It just seems an artificial exercise doesn't it?

35MS BATE:  Yes.

36HER HONOUR:  Because I would simply make two orders running then concurrently.

37MS BATE:  Yes.

38HER HONOUR:  All right, what I'm going to do on an aggregate basis, on all the charges, you are sentenced to - how many days are we up to now?

39MS BATE:  Three hundred and forty-five, Your Honour.

40HER HONOUR:  You are sentenced to 345 days, which sentence I declare has already been served by way of pre-sentence detention.  You are then to be released on a Community Corrections Order for a period of eighteen months.  Now before I can place you on that order, I must gain your consent and I first have to outline to you the conditions relating to this order.

41They are that on your release from prison, you must report to the Community Corrections Office within two working days, that is by Monday of next week.  While on the order, you must not commit another offence punishable by imprisonment.  That doesn't mean you have to be charged and gaoled.  It means if you commit an offence which theoretically you could be gaoled for, like knocking off a box of matches from Woolworths, that will constitute a breach.

42Whilst you are on the order, you cannot leave Victoria without the permission of the Community Corrections Office.  You must inform the Community Corrections Office of any change of address or employment within 48 hours of the making of that change.  You must report to and receive visits from the Community Corrections Office, you must obey all lawful directions of the Community Corrections Office and you may not attend upon the Community Corrections Office whilst under the influence of drugs and alcohol. 

43The special conditions attached to the order are that you will undertake 150 hours of unpaid community work.  You will undertake mental health treatment.  You will undertake programs designed to assist in drug use and you will be undertaking judicial monitoring.  Are you prepared to enter this order?

44OFFENDER:  Yes, Your Honour.

45HER HONOUR:  Good.  I think we will see Mr Kilpatrick in March.  So the first judicial monitoring - where will you be living, Cranbourne?

46OFFENDER:  Yeah, Cranbourne.

47HER HONOUR:  Yes, I am going to make an order that at that judicial monitoring, you can simply attend the Corrections Office and be beamed in rather than coming to court, all right?

48OFFENDER:  Okay.

49HER HONOUR:  And the date will be 12 March at 9.30. 

50OFFENDER:  Yes, Your Honour.

51HER HONOUR:  Corrections Office will remember that, but it might not hurt if you try and remember yourself.  All right, I have spoken to you about the importance of undertaking the two rehabilitative conditions.  That is a treatment and seeing a psychologist.  All right, so you are prepared to enter the order?

52OFFENDER:  Yes, Your Honour.

53HER HONOUR:  Have a seat sir and we will get the paperwork.  Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two and a half years, and order that you serve a minimum term of eighteen months.

54MS BATE:  As Your Honour pleases.

55MS RAMSEY:  As Your Honour pleases.

56HER HONOUR:  All right.

57MS BATE:  Your Honour, just in terms of the ancillary orders, there's been some discussion about the compensation orders over the break.

58HER HONOUR:  Yes.

59MS BATE:  And they have been resolved as a I understand it, ‑ ‑ ‑

60HER HONOUR:  Good.

61MS BATE:  ‑ ‑ ‑ on the basis that there would be two separate compensation orders sought in relation to the two different victims.

62HER HONOUR:  Yes.

63MS BATE:  But they're limited now to $1,600 in relation to Mr Carucci and $1,400 in relation to Ms Kaminsky, together with the 464 application.

64HER HONOUR:  Yes.

65MS BATE:  In light of those ‑ ‑ ‑

66HER HONOUR:  I mean I do not grant s.464 applications lightly, but it is serious, not that - he has got a bit of a prior thing happening, I think I will grant it.

67MS BATE:  As Your Honour pleases.

68HER HONOUR:  If I can put it in that inelegant, non-legal way.  So I will grant that application.  Is Ms Kaminsky's compensation in relation to some of the items that were taken?

69MS BATE:  Yes, Your Honour, so just in relation two of the items, one for each of the victims.

70HER HONOUR:  Very well.

71MS BATE:  There has been some discussions about insurance and the like, which has reduced the compensation sought on behalf of them significantly, but I'll have, in light of those discussions, draft orders sent through if I might.

72HER HONOUR:  Very well, no problem.

73MS BATE:  Which will total $2,000, but they will be separated - sorry, $3,000.

74HER HONOUR:  Very well, so they are not ready today, but you will forward them to me and I will ‑ ‑ ‑

75MS BATE:  They will be done very soon.

76HER HONOUR:  Well I will make the compensation orders ‑ ‑ ‑

77MS BATE:  As Your Honour pleases.

78HER HONOUR:  ‑ ‑ ‑ in the amounts that have been mentioned and the documentation.  So that is $1,600 to Mr Carucci and $1,400 to Ms Kaminsky and I note the paperwork will be forwarded to me for completion.

79MS BATE:  Thank you, Your Honour.

80HER HONOUR:  All right, good.  So you are not out of the woods yet
Mr Kilpatrick, you have got to come back and see me, you better have been pretty good because I get a report, all right?

81OFFENDER:  Yep.

82HER HONOUR:  Get him to sign it first.  Thank you, Mr Kilpatrick.

83OFFENDER:  Thank you, Your Honour.

84HER HONOUR:  I note that the sentence I have imposed, I think I already said it, I direct it has already been served by way of pre-sentence detention.  So he is out.

85OFFENDER:  Thank you.

86HER HONOUR:  He is out, the journey begins.  Is there anything else that I need to attend to?

87MS BATE:  No, Your Honour.

88MS RAMSEY:  No, Your Honour.

89HER HONOUR:  I thank counsel both very much indeed. 

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