Director of Public Prosecutions v Kuill
[2023] VCC 2456
•18 October 2023
Ja
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02346
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEVI KUILL |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 June 2023, 21 June 2023, 14 September 2023 | |
DATE OF SENTENCE: | 18 October 2023 | |
CASE MAY BE CITED AS: | DPP v Kuill | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2456 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Guilty pleas - aggravated burglary – intentionally destroying property – possessing a drug of dependence – resisting an emergency worker on duty – young offender – intellectual disability – drug use – alcohol use – limited remorse for victims – immaturity
Legislation Cited: Disability Act 2006; Sentencing Act 1991.
Cases Cited:Verdins v The Queen (2007) 16 VR 269; Azzopardi v The Queen [2011] VSCA 372; Buckley v The Queen [2022] VSCA 138; Boulton v The Queen [2014] VSCA 342.
Sentence: 16 month Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Batten | Office of Public Prosecutions |
| For the Accused | Mr Barreiro | Balmer & Associates |
HIS HONOUR:
1Levi Kuill, you have pleaded guilty to charges of aggravated burglary, intentionally destroying property, possessing a drug of dependence, and resisting an emergency worker on duty.
2You also agreed to my hearing related summary offences of possessing a controlled weapon without lawful excuse and committing an indictable offence, aggravated burglary, whilst on bail. You pleaded guilty to those charges.
Circumstances of offending
3The circumstances of your offending are set out in Exhibit P1, Summary of Prosecution Opening for Plea. You do not take issue with the matters set out in that summary.
4On 15 June 2022, your co-offenders, who I shall refer to as AB[1] and CD[2], were involved in an incident occurring at premises in Comas Street, Morwell. The premises were a residential care house. Their conduct involved property damage to a residential care worker’s car. Police were called but AB and CD left the area before police arrived. AB and CD lived in a nearby residential care home. They were aged 16 and 15 years respectively.
[1] A pseudonym
[2] A pseudonym
5At about 3.20am on 16 June 2022, you met up with them not far from the address in Comas Street, where the earlier incident occurred. The three of you then walked to that address and, on arrival, AB and CD immediately began to try and enter the house. CD was armed with two sticks which he used in his attempt to enter the house. You approached the front door and kicked it three times. You then started to record the incident on your mobile telephone.
6Your two co-offenders located a number of bricks which they then threw at the house, causing glass panelling near the front door to smash. One of the two then kicked a window near the front door causing the glass to shatter and hit a young resident in the head, causing her a laceration.
7You kicked the letterbox of the house four times before CD was able to unlock the front door by putting his hand through the broken glass window. You followed the other two into the house. You entering the house, in the circumstances, constitutes the charge of aggravated burglary.
8Once inside the house, the three of you smashed and damaged a number of items. You smashed a glass table and window. This conduct forms part of the basis of Charge 2, criminal damage. Most of the occupants of the house, including two residential care workers, ran to the staff bathroom, locking themselves in and calling police. One of your co-offenders kicked at the bathroom door.
9The young girl who suffered the laceration was assaulted by your co-offender, CD, while inside the house.
10You walked out of the house on two occasions, carrying an item on the second occasion. You then threw that item at the front window of the property, causing the item to smash. This conduct also forms part of the basis of Charge 2, criminal damage. You then re-entered the house before walking out approximately one minute later.
11The three of you ran from the house before police attended.
12At 4.55am, you attended the Morwell Police Station to request a lift to your home in Traralgon. Police had become aware of your involvement in the offending. You were told that you were under arrest in relation to the aggravated burglary. You attempted to run from the police station, pushing past Acting Sergeant Trapnell in your attempt to escape. This conduct gives rise to Charge 4, resisting an emergency worker on duty.
13A search of the backpack you were carrying was conducted after your arrest. Inside the backpack was a small quantity of cannabis. This forms the basis of Charge 3 on the indictment. A pocketknife was also found and forms the basis of the related summary offence of possessing a controlled weapon.
14You were interviewed by police in the presence of an independent third person. You made partial admissions to the offending but attempted to minimise your involvement. You were not entirely truthful with police, saying that you entered the house intending to get the other two out, and said you tried to call police but your phone had died. During your interview, you acknowledged knowing that others were inside the house, claiming that you tried to ‘message’ them to tell them to get out, but that your phone had died before you were able to send the message.
15At the time of this offending, you were on bail for other offences.
16You pleaded guilty to appropriate charges on 9 December 2022, the day listed for a committal hearing. Your matters resolved before any witnesses were called.
17Although there are no Victim Impact Statements, the learned prosecutor, Mr Batten, relied on police statements made by two of the victims. Ms Vogelsanger, a residential care worker, stated she was completely shaken and feared that you and your co-offenders would get into the bathroom. She was concerned that if you got into the bathroom she and the other children in there would have been bashed. The other care worker stated, in effect, that she was extremely frightened, thinking that you and your co-offenders would break through into the bathroom and cause harm.
18The offence of aggravated burglary has a maximum penalty of 25 years’ imprisonment. Criminal damage has a maximum penalty of 10 years’ imprisonment. Resisting an emergency worker on duty has a maximum penalty of five years’ imprisonment. Possessing a drug of dependence, in the circumstances, has a maximum penalty of one year imprisonment, as does possessing a controlled weapon. The offence of committing an indictable offence whilst on bail has a maximum penalty of three months’ imprisonment.
19At the plea hearing, I was informed that you do not have any prior convictions.
Personal circumstances
20You were born in Traralgon and grew up in the Latrobe Valley. Your parents separated when you were five years of age. Your mother then partnered with your paternal uncle. You were led to believe that your uncle was in fact your father. You mostly lived with your mother but, upon discovering that you were deceived regarding your paternity, you left home.
21You attended a specialist primary school in Moe. You repeated your preparatory grade and were assisted by an integration aide throughout much of your schooling. You attended Traralgon College but ceased going to school at some stage in Year 10. It was around that time that you left your mother’s home. You instructed your counsel, Mr Barreiro, that at around that time you commenced using drugs, mainly cannabis, drinking alcohol, and getting into trouble with the police.
22Mr Barreiro informed me that while you have no previous convictions, you appeared at the Latrobe Valley Magistrates’ Court on 28 February 2023 on a consolidated plea of guilty for a number of offences including criminal damage, theft of liquor, and burglary. Those matters occurred between April and July 2022, and you were placed on a 12-month adjourned undertaking without conviction to be of good behaviour.
23A neuropsychological report prepared by Dr Linda Borg, dated 5 September 2022, was tendered on your behalf.
24You reported to Dr Borg some use of cocaine and methylamphetamine. You said that you drank alcohol on social or special occasions. You said you commenced using cannabis at the age of 13, which you have continued to use.
25You reported to Dr Borg that you had previously been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) during childhood, for which you were not, at the time of her assessment, being treated. Dr Borg referred to a developmental assessment report completed by Lydia White, speech pathologist, in July 2008, that found you displayed “delays in all areas tested, except for gross motor and visual motor imitation”.
26Your profile, Dr Borg, considered, was suggestive of significant delays, particularly in the areas of language and cognitive development. A 2009 report, to which Dr Borg also referred, identified you as having a severe delay or disorder in both your receptive and expressive language. Your testing in 2009 showed you had a full scale IQ of 63.
27On the Vineland Adaptive Behaviour Scales, your performance in communication, daily living skills and socialisation domains all fell in the mild to moderately impaired ranges. It was then concluded that you were functioning within the extremely low or intellectually disabled range of ability.
28With regard to your behaviour, you told Dr Borg that “half the time I wish I wouldn’t have done it and the other half says ‘good job Levi’ because I’m not letting my mates down”. You denied experiencing any form of shame or embarrassment for your actions. You did not demonstrate any victim empathy. Asked whether you intended to commit similar offences in the future, you replied “no clue … depends where I go in life”. When asked how the court could be assured you would not re-offend, you stated “cause [sic] I’m living at my real dad’s house and I’m going to show him I can do this and stay out of trouble … I’m going to make my dad happy”.
29Dr Borg considered that your response to your offending was highly egocentric and exhibited a degree of flippancy and bravado. You demonstrated, according to Dr Borg, very poor awareness of the implications of your disability and the degree to which you may be vulnerable to influence, with your responses revealing some underlying dependent personality elements.
30On testing by Dr Borg, you were assessed as having a full-scale IQ of 64. This placed you in the first percentile. Your reading abilities were measured at a Grade 3 level. Dr Borg stated that your literacy is impaired. Insufficient mainstream educational exposure has impeded your language development. However, your capacity for comprehension and abstraction with language was considered reasonable. Your test results indicate impaired immediate attention, working memory, and mental sequencing spans. Your capacity on the arithmetic task was at the fifth percentile. Your speed of mental processing was found to be within functional limits. However, with the introduction of more complex material, or when information required multisystem processing, your speed declined appreciably, falling at the second percentile. Dr Borg was of the view that in busy and unfamiliar environments, or when the information is highly complex, your capacity to process and respond diminishes and is well-below that of age matched peers.
31During testing, you encountered significant difficulty when required to maintain attention and concentration over time. You struggled to multitask effectively, with your performance falling in the extremely low range. Your immediate recall and new learning were well within impaired levels. You also exhibited deficits in your executive functioning. Dr Borg stated that you struggle to think in a logical and systematic fashion, and you exhibited a moderate degree of impulsivity on a measure of response inhibition, with poor self-monitoring evident.
32In Dr Borg’s opinion, your presentation is consistent with an intellectual disability which is mild in nature. It is also her clinical opinion that you demonstrate a comorbid diagnosis of ADHD. Dr Borg stated that you do exhibit an appreciation of right from wrong, and you know the seriousness of your offending conduct.
33Dr Borg considers that your cognitive disability impairs your ability to exercise appropriate judgment, think clearly and make calm and considered choices. Those deficits are likely to contribute to your offending behaviour.
34Dr Borg also stated that the presence of prominent deficits in insight, impulse control and self-monitoring, mental flexibility and social and emotional immaturity, are likely to be barriers to your rehabilitation and serve to increase the risk of future offending.
35Exhibit D4 is a Supervised Bail Progress Report dated 20 April 2023. You were placed on Youth Justice supervised bail on 14 July 2022. The conditions of your bail included weekly reporting to police, residing at an address in Drouin, a curfew from 6.00pm to 6.00am (unless in the company of Sean Kuill), not to associate with any co-accused, to abide by all lawful directions of Youth Justice, and other conditions.
36The authors of the report state that you maintained positive compliance with your Youth Justice supervision appointments. You attended all supervision appointments, the frequency of which reduced to fortnightly appointments in early March 2023. It is reported that your engagement remained positive, and there was a focus on building your problem-solving and consequential thinking skills and challenging your attitudes to reduce the risk of you further offending. To the authors’ knowledge, you had not been involved in any other offending since the commencement of supervised bail, which at the time the report was written was some 9 months earlier.
37At the time the report was written you were living with your father, step-mother and younger half-siblings in Drouin. You identified your paternal grandmother, Sharon Kuill, as your primary support. It was noted that you commenced engagement with a Garan Levingston from Rooster Tours through your NDIS plan. He commenced working with you in early April 2023 and has provided positive support in community activities, mentoring, accessing employment support and exploration of certificate courses to improve your employment prospects.
Submissions
38Mr Barreiro relied on your youth (you were 18 at the time you committed these offences), your mental impairment and your pleas of guilty in support of a submission that you be sentenced to a Community Correction Order. He submitted that such an order will help facilitate your rehabilitation and reduce the risk of you re-offending.
39Mr Barreiro acknowledged that the offence of aggravated burglary, especially when committed in a confrontational manner as this was, is inherently serious. He submitted, however, that you played a lesser role in the offending.
40Mr Barreiro submitted that a number of principles set out in Verdins v The Queen[3] are enlivened.
[3](2007) 16 VR 269
41First, Mr Barreiro submitted there was a reduction in your moral culpability because of your reduced ability to exercise appropriate judgement, make calm and rational choices, and think clearly.
42Secondly, he submitted that your youthful age and vulnerability has a bearing on the kind of sentence and conditions to be imposed. He submitted it would be totally inappropriate to gaol you, thus losing the benefit of the NDIS service and the support of your family.
43Thirdly, Mr Barreiro submitted that there should be a substantial reduction in general deterrence, given your intellectual disability and its connection to your offending.
44Fourthly, Mr Barreiro submitted that given your vulnerabilities, the impact of imprisonment would represent a greater burden on you than on a prisoner without such difficulties.
45Noting that you had just turned 18 at the time of your offending, and that you are now 19 years of age, Mr Barreiro relied on the decision in Azzopardi v The Queen,[4] in which Redlich JA, in reference to the law recognising that young offenders stand to be redeemed and rehabilitated, stated:
“This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.”[5]
[4][2011] VSCA 372
[5]Ibid, [35]
46Mr Barreiro also referred to the Court of Appeal decision in Buckley v The Queen,[6] where, at paragraph 6, it was stated that “sending young people to adult gaol is almost inevitably counterproductive”, and, at paragraph 8, “[t]he community expects, and needs, sentencing courts to fashion dispositions which will minimise the risk of re-offending.”
[6][2022] VSCA 138
47Mr Barreiro also relied upon your pleas of guilty which were entered on the day of the committal hearing. As earlier stated, witnesses were not required to give evidence. He submitted that your pleas demonstrate an acceptance of responsibility for your wrongdoing and have saved the court and community the time and expense of a trial.
48Mr Batten, on the other hand, submitted that the only appropriate sentencing disposition is one of an immediate term of imprisonment. Mr Batten noted that the offence of aggravated burglary is an inherently serious crime as is clear from the maximum penalty of 25 years’ imprisonment that may be imposed. Mr Batten further submitted that the commission of the aggravated burglary, in the circumstances of this case, was a particularly serious instance of the offence.
49At the conclusion of the plea hearing, I requested a pre-sentence report. Since then, I have received the following documents:
(i)Disability Overview Report dated 7 September 2023;
(ii)Justice Plan dated 7 September 2023;
(iii)Community Correction Order Pre-Sentence Assessment Outcome Report dated 11 September 2023; and
(iv)Statement of Intellectual Disability dated 7 September 2023, Department of Families, Fairness and Housing.
50I will deal first with the Community Correction Order Pre-Sentence Assessment Outcome Report. The assessing officer, while finding you suitable for a Community Correction Order, has reservations regarding your ability to comply with and complete such an order given your presentation during the assessment. He notes, however, that an order may be of benefit to your rehabilitation and hence to the community.
51You have been assessed as representing a high risk of re-offending. It was noted that you presented with symptoms of ADHD, fidgeting and appearing unable to sit still. You were unable to maintain specific topics of discussion for longer than a few minutes at a time. You were supported by your grandmother, Sharon Kuill, during the appointment.
52During the assessment you were able to identify the impact of your offending on your family but appeared to have no regard for the victims of your offending.
53The Disability Overview Report, authored by Amanda Clark and Cheyne Davis, was a document of some concern.
54It was noted that you have been issued with a statement from the Secretary that you have an intellectual disability as defined by the Disability Act 2006. Your assessment of mild to moderate intellectual disability means that while you can function with a level of independence, you require support in some areas of daily living.
55It was also noted that you are diagnosed with ADHD. When assessed on 28 August 2023, by the Disability Justice Coordinator, you presented as highly distractable, immature, and with a very limited ability to maintain focus. When engaged in conversation, you frequently commented that you were “living the dream,” and referred to your associates as “my boys”.
56During a second assessment on 5 September 2023, you said you should not have to do this when you would rather be doing other things, and attributed blame to the police and the judge for you being in this situation.
57Although you were supported by your paternal grandmother, you said you had been living with a man whom you said “may be your father” and who is assisting you with life skills. You also said you were staying with an uncle and auntie, whom your grandmother advised were friends. You have a tendency to move around and stay with various friends at times.
58Of particular concern is your indication to the Disability Justice Coordinator that you are proud your charges are before the County Court, and not just the Magistrates’ Court, you being cognisant of the fact that this is due to the serious nature of the charges. You also described engaging in excessive consumption of alcohol and cannabis use. It appeared to the author that your comments projected a sense of bravado, and that you have a tendency to confabulate and engage in impression management. You indicated your priorities are your associates, using substances, and maintaining your image.
59The Disability Justice Coordinator is of the opinion that even with the support of your grandmother, your engagement with Disability Justice may be largely superficial due to such compromising factors as your cognitive limitations, ADHD and immaturity.
60As stated, a Justice Plan has been received. That plan reports that your cognitive deficits, in conjunction with your age, vulnerability and trauma history, appear to have a direct connection to your offending. Your current charges are indicative of a susceptibility to peer influence with a proclivity towards antisocial elements.
61The following recommendations were made:
(i)that you engage with a Disability Justice Coordinator from the Department of Families, Fairness and Housing for the duration of the order, participating in further planning as required;
(ii)that you agree to any treatment and services identified by the Disability Justice Coordinator.
Sentencing considerations
62While I appreciate that the offending, particularly the charge of aggravated burglary, was serious, and that the learned prosecutor was acting on instructions, I do not accept that a term of imprisonment is the only appropriate sentencing disposition. A term of imprisonment is a sentence of last resort and, in my opinion, would be a disproportionate sentence having regard to all of the circumstances of the case, particularly your personal circumstances.
63Notwithstanding the pessimistic view regarding your attitudes and risk of re-offending, views that I accept, I consider it appropriate to place you on a Community Correction Order.
64I do so for the following reasons:
(i)You have pleaded guilty to each of the offences and there is a significant utilitarian value in your pleas of guilty. You have spared the court and community the time and cost of a trial. You have spared witnesses from the need to give evidence at a committal hearing and trial. Your pleas of guilty have been entered at a time when this Court is still dealing with the impact of the COVID-19 pandemic on the backlog of cases awaiting trial. However, I do not make any finding that you are remorseful for your behaviour, notwithstanding your pleas of guilty.
(ii)You were, at the time of these offences, a very young person and, at the age of 19, you remain a very young person. You are a particularly immature young person. You function it would seem, at a much younger age than your chronological age. Your rehabilitation, if it can be achieved, is a most important consideration. Not only will this serve your interests, but also those of the community.
(iii)Notwithstanding your comments to others, which must be viewed in the context of your intellectual disability, immaturity and childish bravado, your adherence to stringent bail conditions over a significant period of time provides me with some hope that you are not yet beyond rehabilitation.
(iv)I accept Mr Barreiro’s submission regarding the applicability of Verdins’ principles 1, 2, 3 and 5. Your intellectual disability enlivens each of those principles for the reasons stated by Mr Barreiro.
65I do not lose sight of the fact that your offending, particularly on Charges 1 and 2, was serious. You and your co-offenders terrorised the occupants of the residential facility in the small hours of the morning. There was nothing heroic in what you did. Nothing about which to be proud. It was senseless, thuggish behaviour upon innocent victims. Your conduct deserves to be strongly denounced.
66I have regard to the impact of your offending upon the two victims who made statements and, given the nature of the conduct in which you and your co-offenders engaged, I can infer, beyond reasonable doubt, that all persons were similarly terrified.
67I should note that your co-offenders were dealt with in the Children’s Court and received diversion. Mr Barreiro did not argue for parity of sentence.
68Although, normally, general deterrence and denunciation would be significant sentencing considerations, I accept Mr Barreiro’s submission that you are not a suitable vehicle for general deterrence given your intellectual disability.
69In my opinion, each of the sentencing objectives set out in s. 5(1) can be met through the imposition of a Community Correction Order.
70In Boulton v The Queen,[7] the Court stated that a Community Correction Order is a punitive sanction and may be appropriate even in cases of relatively serious offending like yours. I have, in this regard, also taken into account current sentencing practice, particularly for the offence of aggravated burglary. While there are many instances where those who commit aggravated burglaries receive significant terms of imprisonment, there are also many instances where persons are placed on Community Correction Orders.
[7] [2014] VSCA 342.
Sentence
71On each of the charges, I propose to convict you and place you on a Community Correction Order. The order will last for 16 months and commences on 18 October 2023 and ends on 17 February 2025. You must attend at the Warragul Justice Service Centre at 12 Queen Street, Warragul within two clear working days after the commencement of this order.
72The mandatory conditions of a Community Correction Order are as follows:
(i)You must not commit another offence for which you could be imprisoned during the time that the order is in force.
(ii)You must comply with any obligation or requirement prescribed by regulation 15 of the Sentencing Regulations. That means you must not attend at the community corrections centre, or any other place you are directed to go, under the influence of drugs or alcohol.
(iii)You must report to and receive visits from the Secretary or his or her delegate. You must let a Community Corrections Officer know within two clear working days of you changing your address or any employment that you have.
(iv)You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.
(v)You must obey all lawful instructions from and directions of the Secretary, or his or her delegate.
73In addition to those mandatory conditions, I impose additional conditions as follows:
(i)You must perform 100 hours of unpaid community work over a period of 16 months, as directed by the Regional Manager.
(ii)I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
(iii)If you fail to comply with this order, the secretary to the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act.
(iv)You must be under the supervision of a Community Corrections Officer for a period of 16 months.
(v)You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the Regional Manager.
(vi)You must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager.
(vii)You must participate in programs and/or course that address factors relating to the offending, as directed by the regional manager. You must participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation, and that may include employment, educational, cultural and personal development programs as directed by the regional manager.
(viii)You must reappear at this Court for a review of your compliance with the order as directed by the Court.
(ix)You must attend for first review on 18 December 2023 at 9.30 am at the Melbourne County Court.
(x)You must participate in the services specified in a Justice Plan for the period of 16 months.
74Had it not been for your pleas of guilty the sentence I would otherwise have imposed is one of a 32 month Community Correction Order, 150 hours of community work and all other conditions the same as those I have imposed.
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