Director of Public Prosecutions v Kilpatrick

[2018] VCC 1498

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

AT MELBOURNE
CRIMINAL JURISDICTION

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:	14 September 2018
CASE MAY BE CITED AS:	DPP v Kilpatrick
MEDIUM NEUTRAL CITATION:	[2018] VCC 1498

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Clancy (Plea) Mr P. Raimondo (Sentence)
For the Accused	Ms D. Dempster

HIS HONOUR:

1Brodie Kilpatrick, you have pleaded guilty to an indictment containing a single charge of attempted armed robbery.  This carries a maximum penalty of 20 years' imprisonment. 

2At the time you committed this offence, you were 21 years of age.  You are now aged 22.

3The circumstances in which you came to commit this offence are sent out in a detailed prosecution opening dated 15 August, a copy of which was tendered as Exhibit A on the plea hearing.  I will not recite the full circumstances of your offending.  It is sufficient for present purposes to provide only the following outline.

4On Friday 23 February 2018, the victim in this matter was working as a delivery driver for Domino's Pizza.  At approximately 11.50 pm, he was making a delivery to an address in Frankston North.  As he drove down Lacenet Avenue, he saw you standing outside the deliver address on the nature strip; you were holding a large wooden stick.

5He assumed that you had placed the order for the delivery so he pulled over and parked.  As he exited his vehicle, you approached him.  He told you the price of the pizza, to which you replied, "I don't need your food, I just need your keys.  Turn on the ignition."  And as you spoke you held the stick in your hand like a sword.  You then moved to the back of the vehicle and asked, "Are you delivering to 1 Lacenet Avenue", before demanding again that he provide you with his keys. 

6He opened the front door of the car and grabbed his mobile phone.  You tried to push past him to get into the vehicle.  However, he quickly closed the door, locked the car before running into the front yard of that address.  You yelled at him, "I need your keys".

7He fled inside the house, and asked occupants to call the police, which they did.  You were yelling threats and demands towards him, including, "Give me your fucking keys", and, "Call the copper dogs", "I'll find you", and, "I know where you live."  You then returned to the vehicle and struck it several times with the wood, causing no damage.  You then fled the scene.

8Police attended a short time afterwards and conducted a forensic examination of the vehicle and latent fingerprints were identified on the external passenger window of the car, subsequently matched to yours.  Police also obtained CCTV footage of the incident, which was captured on a security system of a neighbouring property and they located the stick.

9You were arrested on 28 February 2018 and that same day participated in a formal recorded interview where after denying some of the allegations put to you, you eventually made full admissions to the offending, although you maintain you did not recall entering the yard to the address. 

10When the police asked you for a reason for your behaviour, you told them you were drunk, not in the best mood and not thinking straight.  After dropping the stick, you walked to a nearby street into an abandoned house and fell asleep in a back yard.

11A victim impact statement was received from the victim, who writes that these events have significantly affected his life, particularly, he has had to curtail his night work due to fear and anxiety about his safety at night.  This has affected his financial position as an international student.  It is understandable that such an incident would cause fear and dismay in any person going to about his job.  I take this impact and this statement into account.

12Armed robbery is very serious offence and an attempt at committing it is just as serious.  There are, however, great variations within the rubric of armed robbery and attempted armed robbery, with offences ranging from the very serious and grave, objectively, and offences which lie at the lower end, given the circumstances involved. 

13This is a rather peculiar and particular case.  Although the offending has serious aspects, some other features of aggravation are lacking.  The offence was opportunistic and spontaneous, without any obvious planning and lacking of the required coordination and criminal coherence to achieve any end; you were alone, undisguised, with an improvised weapon.

14There were no injuries inflicted.  And clearly though the victim as terrified and put in fear for his safety, no further damage occurred.  He was a vulnerable victim going about his employment at night.  The offending clearly was the result of a confused and intoxicated mind, affecting judgment and reason. 

15I take your personal circumstances into account.  You are 22 years of age and therefore, though strictly speaking, not now a youthful offender, you were 21 at the time of the offences and so shortly out of the range defined to apply as youthful. 

16In my view, I should consider you a youthful offender for the purposes of sentencing, which means that I will moderate general deterrence, which nonetheless remains a prominent sentencing consideration.  However, given your circumstances, youth, your immaturity, lack of insight and judgment, your prospects for rehabilitation must remain primary in the sentencing exercise. 

17You have prior criminal history which is relevant as informing the prospects of that rehabilitation and the weight to be assigned to specific deterrence.  Most relevantly, on 28 July 2017 you were placed on a community-based order for two years for offending, which included assault, recklessly cause injury and affray.  You were ordered to perform 250 hours of community work and undertake assessment and rehabilitation for mental health and programs directed to your offending, including anger management.

18This prior is particular very concerning because the nature of the offending, and because in February 2018 you were subject to that community corrections order when you committed these offences.  The community corrections order then in place was ordered as the sentence dealing with a number of serious offence committed by you in 2016 and 2017. 

19In July 2017 you were involved in an assault and causing damage to a house with the use of a garden stake.  You told police you had drunk half a bottle of vodka.  In earlier September 2016 you had committed an affray and recklessly cause injury, where you punched a man in the head multiple time and then kicked him in the head and body when he fell to the ground.  In February 2017 you were arrested, riding around with an expensive mountain bike which had been crudely sprayed over to disguise it. 

20The community corrections order also covered this dealing in property suspected of being proceeds of crime and that was placed in contravention and will be dealt with in late October of this year.  At the time of your induction, you were assessed as high risk of reoffending.  But it appears you initially complied with the requirements.  Corrections was told you had obtained an apprenticeship as a roof tiler with your cousin.  By October, your commitment to his order had declined, by January, you had disengaged. 

21Referrals to psychologists were attended in August and September.  You were remanded from offending behaviour programs.  You completed only 27 or so hours of the required 250 hours.  And in February you then committed these offences.  In November 2017, you were fined for stating a false name when required and failed to answer bail. 

22This failure on your part to appreciate the opportunity which was offered to you by a community corrections order is relevant as to your real prospects of rehabilitation and the evaluation of the weight to be given to specific deterrence.  And on this history it is clear that your prospects, when viewed through your personal circumstances, must be guarded, with the risk of reoffending at least medium, and specific deterrence still required to drive home to you that the punishments of the court, as well as any opportunity for rehabilitation, must be taken seriously by you.

23I take your personal background into account.  You were born in Melbourne; the third son, with brothers being 23 and 26 years old.  You have two younger half-siblings.  Your parents separated when you were young.  This was related primarily to your father's alcoholism and violent behaviour.  You have limited contact with your father but continued to be subject to his violence.  For period of time, you were under the care of the Department, as your mother was unable to care for you.  Your mother died in 2016 when you were aged 19 and you became homeless. 

24Your schooling was to Year 9 before dropping out.  You started smoking cannabis at age 13 as well as drinking.  By 14 you were using methylamphetamine.  After your mother's death, your use escalated, and by the time of the offending you were a daily user.  Your exposure to domestic violence and mental health related issues at home meant being taken out of the home environment and this trauma was compounded when you found your mother's body at age 19. 

25The instability of accommodation, your disrupted education, and lack of vocational achievement continued.  Your family remained dysfunctional and broken up even after your mother's death.  Your brother has also used alcohol and drugs.  And your initial progress on the community corrections order, as I have said, lasted about a month, but it soon collapsed and you disengaged, went back to drug use and you fell into non-compliance. 

26Your disengagement meant none of the programs for offending behaviour, anger management or change management did not take place.  You were homeless and essentially alone.  You have not had any meaningful relationships or meaningful work. 

27I take into account the report of Ms Ferrari, a psychologist who tests your exposure to chronic instability and deprivation and to the remorse you have expressed.  I take the contents of that report into account. 

28Her report includes a comprehensive family and personal history, the details of which I have carefully read, in particular, the bond that you had with your mother, your early dysfunctional family life, the death of your mother from emphysema, collapse of the family soon after her death and your descent into street life and attempts to self-medicate and your struggle with grief.  She outlines educational/occupational history, including perhaps undiagnosed ADHD and leaving school early and running amok, essentially. 

29Since incarceration, you have been working in the kitchen of the prison, completed a number of courses related to hospitality as well as traffic management.  You had experienced depression and anxiety but you appear willing to start the process of engaging in psychological treatment.  An alcohol and substance use history follows.

30As to the offending, you acknowledged your actions were unacceptable, you expressed remorse and victim empathy and accepted the consequences of your actions.  I accept that this offending, as well as that which preceded it in 2017, was impulsive rather than antisocial or criminogenic.  But committed in the midst of self-destructive, angry, grieving period leading to an increased risk of criminal conduct. 

31Reforming your lifestyle will include finding work, dissociating from antisocial peers, ceasing to use drugs and alcohol, staying close to family support, participating in psychological and educational programs. 

32I have taken into account the certificates pertaining to the programs that you have completed.  These educational and vocational programs suggest that you can participate in the effort of rehabilitation, education, and recognising the steps required to deal with your anger and what triggers your loss of self-control.

33They are, however, undertaken currently in the environment of a gaol, and undertaking such rehabilitative programs in the community is much more challenging, and under a community corrections order, hopefully that will encourage you to do so.  It is only to be hoped that your time in custody has created an incentive for you to abide by the order this time. 

34I have taken into account as well the character references from your brother.  You do have some family support which is a positive factor in your future rehabilitation. 

35It was submitted and conceded that a term of imprisonment was warranted in these circumstances.  You were arrested on 28 February and have been in custody ever since.  I make that pre-sentence detention as 198 days, excluding today. That is some six and a half months approximately.  I had you assessed for a community corrections order and you were found suitable, despite the fact that the community corrections order imposed in July of last year for 24 months is currently in contravention.

36I intend to impose punishment on you but I intend to at least give you one more opportunity for rehabilitation.  I intend to place you on a community corrections order in combination with that period of detention.  The order will be in place for 12 months and apart from needing to be of good behaviour, you will be subject to supervision, drug and alcohol rehabilitation, mental health assessment and treatment, as well as community work. 

37Any treatment and rehabilitation that you undertake, Mr Kilpatrick, will be credited to your work component to some 50 hours.  Before that, you will perform 200 hours of community work and that credit can go towards those 200.

38On the charge of attempted armed robbery, you are convicted and sentenced to eight months' imprisonment, to be followed by a community corrections order for 12 months with the conditions that I have outlined before, to perform 200 hours community work.  I note for the records of the court and declare that you have served the 198 days by way of pre-sentence detention.  That leaves just over a month to serve before you could access the community corrections order.  You will then, in October, front court to be deal with for the contravention of the other order. 

39One likely outcome is that that court will look at what I have done in this case and choose not to imprison you further, but continue with some sort of variation of that order, although they are liable to some penalty for having breached that order. 

40But for your plea, I would have sentenced you to 15 months' imprisonment.  You need to understand something very, very clearly today, Mr Kilpatrick, and that is that even at your young age, you have really come to the end of the line in terms of coming to court and facing serious charges, one way or another. 

41And the choice that you have got in front of you today is either you abide by this order and you complete it and you begin your rehabilitation, or you breach it, in which case I will punish you for that breach.  And when you are brought before me, I will then send you to gaol for a very long period of time.  So if you want to waste the best years of your life to come then breach this order. 

42If you want to get on with life and achieve the things that you can achieve if you put your mind to it, and you leave drugs and alcohol and the idiots that you hang around with behind, then you will have a successful life.  It is as simple as that.  It may not be that easy to achieve but it just takes a little bit of commitment.  The people at Corrections just want you to remain engaged.  Do not disappear into the ether because sooner later police will arrest you, you will have breached that order and you will be brought back before me. 

43Now, I am going to set a judicial monitoring condition, that is you will be brought back before me within two or three months of starting that order.  And what I want to hear is that you are giving it a red hot go.  If I hear that then we can continue along the way.

44It is probably an easy thing to go back to drug use or just not abide by supervision and other requirements of work but that is what a successful life will require.  And you are young enough to be able, and smart enough, to be able to say, "I don't want to live like that anymore."

45The reality is there is always going to be a gaol bed for you if that is where you want to spend your 20s.  And I can guarantee it, unless you die from an overdose in your 30s, which will probably happen if you keep doing it, you will wake up in your 30s, having wasted your 20s, and you will think back and think, "What an almighty idiot I was, I wasted the best years of my life." 

46I am giving you a chance today to avoid that.  So write this date down on your hand or wherever the hell you write it, on a wall, somewhere.  You have got people in court who want to help you.  You might not have had a history of a great family.  In the end, you are now in your 20s, it does not matter anymore.  You can get on with your life; just do it.  Are there any ancillary orders that are required?

47MR RAIMONDO:  There is a disposal, Your Honour, for the garden stake.

48HIS HONOUR:  Yes.

49MR RAIMONDO:  And there is also a s.464ZF order.

50HIS HONOUR:  At some point soon, Mr Kilpatrick, an authorised officer will ask you for a biological sample so that your DNA can be put on a database.  That is taken with a mouth scraping, it is not a painful procedure.  If when you are asked, you do not consent, then that officer can use reasonable force to get a blood sample from you; do you understand?  What is the date?  Yes, I have signed those orders.  The first judicial monitoring date is 11 February 2019. 
Ms Dempster, would you take this order down to your client and get him sign it in agreement?  Thank you.

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