Director of Public Prosecutions v Lappin
[2024] VCC 1237
•13 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01339
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KALEB LAPPIN |
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| JUDGE: | HIS HONOUR JUDGE CAHILL | |||
| WHERE HELD: | Melbourne | |||
| DATE OF HEARING: | 1 August 2024 | |||
| DATE OF SENTENCE: | 13 August 2024 | |||
CASE MAY BE CITED AS: | DPP v Lappin | |||
MEDIUM NEUTRAL CITATION: | [2024] VCC 1237 | |||
SENTENCE
Subject:
Catchwords: Guilty Plea – Aggravated burglary – break in in company with intent to steal – relevant criminal record – remorse – disadvantaged background – mental health
Legislation Cited: Sentencing Act 1991 (Vic), section 5(3).
Cases Cited:R v Piacentino (2007) 15 VR 501.
Sentence:Three years and 11 eleven months imprisonment, with a non-parole period of two years and five months.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr R Casey | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R Backwell | SPA Lawyers |
HIS HONOUR:
1Kaleb Lappin, you have pleaded guilty to:
(a) one charge of aggravated burglary;
(b) one charge of false imprisonment;
(c) one charge of causing injury recklessly;
(d) one charge of theft; and
(e) a related summary charge of unlicenced driving.
Alleged circumstances of offending
2Your offending occurred on Friday 8 July 2022 at Lalor.
3The circumstances of offending are contained in the Summary of Prosecution Opening for Plea. [1]
[1] Exhibit A: The circumstances set out in the prosecution opening. They are agreed facts.
4Around 3 PM, Matthew Galea was asleep in his bedroom, with his dog, when he woke to a noise at the rear of his house.
5Moments later, you and two unknown offenders appeared in Galea’s bedroom. Between the three of you, you had a long stick with a knife taped to the end, an aluminium baseball bat and another unidentified object.
6The offender holding the baseball bat hit Galea in the head. Another offender demanded money and Galea answered that he did not have any. Galea continued to be struck with the baseball bat. He covered up to try to protect himself and his dog.
7Galea heard one of the offenders searching his bedroom. This offender stated that he located $200 in cash (Charge 1 – Aggravated Burglary).
8Galea was further hit to his ribs, on the right side, by either the baseball bat or a stick and blacked out (Charge 3 – Causing Injury Recklessly).
9When he regained consciousness, one of you confronted him and demanded the key to his white Mitsubishi ASX. Galea told the offender where the keys were.
10One of you asked Galea if he had rope. Galea replied that he did not. The same offender left Galea’s bedroom. When he returned, two of the offenders tied Galea’s wrists and ankles together (Charge 2 – False Imprisonment).
11You and your co-offenders left Galea’s house, taking his phone, wallet and the keys to his Mitsubishi (part of Charge 4 – Theft).
12Galea drifted in and out of consciousness for several hours. During moments of consciousness, he attempted to release his hands and feet. Eventually he freed himself and saw his hands and ankles had been bound with an extension cord from another room of his house. When he tried to stand up, he felt dizzy and passed out on his bed.
13Early on Sunday 10 July, two of Galea’s friends came to his home. When they knocked on the front door he woke up. In response, Galea asked them to enter through the rear door, which had been forced open.
14They found Galea lying on his bedroom floor. They saw blood on his head and on the sheets and on his. Galea told them he had been ‘bashed’, and that his car, phone and keys had been taken. He also said he had been tied up with a cord.
15Galea was reluctant to call the police because one of the offenders told him they would come back if he called the police. He was also told he could buy his car back in one week for $5,000, if he did not call the police.
16One of Galea’s friends took him to the Northern Hospital where he was treated for a 6 cm head laceration, pain in his right rib and both hands, as well as shoulder and knee discomfort. CT scans revealed a right occipital scalp haematoma, and a small right frontal bruise. He was discharged later the same day.
17Galea’s other friend cleaned the house, fixed the laundry door and changed the lock on the front door.
18Police attended while he was there. They found a silver baseball bat which was in the kitchen, and an electrical cord on Galea’s bedroom floor.
19CCTV footage captured your movements. It showed you, and your two co-offenders, arrive at the Lalor address at 2:53 pm in a Holden Commodore. At 2:58 PM, the three of you walked towards the rear gate of the house. At 3:05 PM, the three of you left the house. Two left in the Commodore; the third, in Mr Galea’s white Mitsubishi car (part of charge four – theft)
20On 11 July, police recovered the Commodore. They found a silver baseball bat in the car’s front passenger foot well.
21On the same day, after a report of a white Mitsubishi petrol drive off at a Rockbank petrol station, police obtained CCTV footage which showed you get out of the driver’s side door of Mr Galea’s car, fill the car with petrol, and drive off without paying (Summary charge 9 – unlicenced driving).
22Around lunchtime, you drove to Westfield Doncaster, where police arrested you. You were remanded in custody
23In subsequent investigations, scientific examination identified your fingerprints on parts of Mr Galea’s car and your DNA on the cord used to tie him up.
Victim Impact Statement
24I read Mr Galea’s Victim Impact Statement. He described ongoing pain in his shoulder and headaches. The psychological impact of your crimes has been greater. He has now socially withdrawn, and is often on high alert and, at times, is overwhelmed by fear. Because of fears for his safety, he sold his home, which his mother had left him.
Chronology of proceedings
25The proceedings were resolved prior to trial, and on 1 August 2024, you were arraigned and entered your guilty plea.
Criminal record
26You have admitted a criminal record. Relevantly:
(a) On 1 April 2015, allowing your appeal from the Children’s Court, a judge of this court sentenced you to two years Youth Justice Centre detention for aggravated burglary, burglary, theft and damage property;
(b) On 1 February 2016, a Magistrate at Geelong sentenced you to 6 months Youth training centre detention, for theft of a motor vehicle and other driving and dishonesty offences;
(c) On 29 May 2017, at the County Court, you were sentenced to three years Youth Justice Centre detention for false imprisonment, reckless conduct endanger life and theft;
(d) On 18 March 2020, a Magistrate, at Broadmeadows, sentenced you to eight months imprisonment for affray, recklessly cause injury and other offences; and
(e) On 22 July 2020, a Magistrate, at Sunshine, sentenced you to 20 months imprisonment with a non-parole period of 13 months for recklessly causing injury. I was told this was a prison assault.
Personal Circumstances
27You were born in October 1997 in Geelong. You were 24 years old when you offended. You are now aged 26 years.
28Your personal circumstances are set out in the psychological report of Gina Cidoni, who assessed you on 24 July 2024. [2]
[2] Report of Gina Cidoni dated 29 July 2024 (Exhibit 2).
29Your childhood was turbulent. You have never met your father, who is an Aboriginal man, from the Wurundjeri mob. Your mother, who had four children, struggled to cope. When you were two years old, you were placed in foster care.
30You were often moved between foster placements. At times, you were physically abused. When you were 12 years old, you were moved into residential care. At 17, you were moved into a commission house. You lost your accommodation when you went into juvenile detention.
31Your schooling was punctuated by suspensions, expulsions and truancy. You failed to complete year seven. You completed Year 12 while in Malmsbury youth Justice Centre. You would like to complete a small business course while in prison.
32You have never had a paid job, but you have also never been in receipt of Centrelink benefits.
33You told Ms Cidoni, you were introduced to alcohol and cannabis while you were in residential care. When you were 13 years old, you suffered a serious episode of alcohol poisoning. You said, at age 15, you stopped using cannabis because it was making you too paranoid. At age 13, you had also started using methylamphetamine.
34In your first stretch in youth justice detention, you were diagnosed with drug induced psychosis.
35At age 18, you were diagnosed with paranoid schizophrenia.
36When you were last released from prison, you started using cocaine.
37You have made past attempts at rehabilitation including a brief stay at the Bunjilwarra Residential Rehabilitation Centre when you were 17 years old.
38In prison, you are prescribed Buprenorphine and have been seeing a psychologist.
39Because of your 2020 conviction for prison assault, you are held at Barwon Prison’s high security Banksia unit. You are locked down for 22 – 23 hours a day.
40Psychological testing (Millon Clinical Multiaxial Inventory-IV) revealed chronic anxiety, post-traumatic stress, depressive symptoms and a propensity towards hallucinations.
41Ms Cidoni diagnosed substance use disorder, substance-induced psychotic disorder, generalised anxiety disorder and post-traumatic stress disorder.
42She believes there is “a profound connection” between your “adverse childhood experiences” and your offending. In her opinion, your unstable upbringing, in multiple foster care placements in residential care, where you were exposed to physical abuse and early substance use, contributed to the development of your psychological disorders and maladaptive behaviours.
43At the time of your offending, you were affected by alcohol and cocaine. You understand the connection between your drug and alcohol abuse and antisocial associates and your offending..
44She recommends “comprehensive intervention”, including substance abuse rehabilitation, coupled with consistent mental health treatment.
45She also believes your isolation in the Banksia unit poses “significant challenges to addressing treatment needs” because access to therapeutic resources is limited and extensive periods alone will intensify your mental health challenges.
46Your mother supported you.
47Because of her ill-health she was forced to give you up for care when you were an infant. As she wrote, in your childhood, you saw things no boy should ever have to see. And, as you got older, you resorted to drugs to numb your emotional pain.
48She feels she, and “the system”, let you down.
49You speak to her daily and you have told her you are sorry for crimes. You are capable of being loving and thoughtful and she believes you truly want to change your life.
Defence submissions
50Mr Backwell, who appeared on your behalf, acknowledged your offending, which occurred only 12 days after your release from prison, in the context of alcohol and cocaine use, is serious.
51He accepted the only appropriate sentence is the imposition of a term of imprisonment with a non-parole period fixed.
52In mitigation of penalty, he relied on:
(a) your guilty plea and remorse;
(b) your disadvantaged childhood; and
(c) your poor mental health.
53On your behalf, he accepted you need to address your drug abuse and mental health issues if you have any chance of rehabilitation. He told me you are currently seeing a psychologist fortnightly and are completing an anger management course. However, he submitted your isolated prison conditions are likely to make your mental health symptoms worse. He informed me that there is a plan to exit you from isolation, however, no specific time frame has been set.
54Mr Backwell submitted, because you have spent more time in custody than in the community since the age of 15, there is a counter-productive risk of your institutionalisation in prison.
Prosecution submissions
55Mr Casey, who appeared for the Prosecution, submitted a prison sentence with a non-parole period is necessary in your case.
56He submitted, considering:
(a) you broke into Mr Galea’s home with two others, all carrying weapons;
(b) you and your co-offenders surrounded him in his bedroom, where one of you struck Galea’s head with a weapon, lacerating his head and causing him to lose consciousness; and
(c) between you, you tied him up with an extension cord, leaving him helpless and semiconscious for more than 24 hours,
your offending was serious.
57Accordingly, in his submission, just punishment, general deterrence and denunciation must be prominent sentencing considerations.
58He submitted, because of your criminal history, particularly for violent offending, specific deterrence is also important.
59He accepted that you are entitled to a sentencing benefit for your guilty plea.
60He also accepted your sentence is to be moderated because of your disadvantaged background and poor mental health.
61He submitted your prospects for rehabilitation must be viewed as poor. However, he acknowledged you are still relatively young and your rehabilitation is a relevant factor.
Consideration
62The maximum penalty of 25 years’ imprisonment demonstrates the inherent seriousness of the offence of aggravated burglary.
63Just punishment, denunciation and deterrence are important sentencing considerations.
64False imprisonment and theft, which carry a maximum penalty of 10 years imprisonment, and causing injury recklessly, which carries a maximum penalty of five years, are also serious crimes.
65By your guilty plea, you admit you broke into Mr Galea’s home intending to steal and being at least reckless as to whether anyone was home.
66With two others, who have not been apprehended, you forced your way into the home through a locked laundry door. Your crime of aggravated burglary was complete when you entered the home.
67That, however, was not the end of your offending.
68Each of you was carrying some kind of weapon. Mr Galea was asleep in his bedroom. Between you, you assaulted him by striking him to his face and body until he lost consciousness. And you then tied him up, leaving him alone and helpless for more than 24 hours, until his friends rescued him.
69Before you left, between you, you stole his wallet, his mobile phone and his motorcar.
70While the burglary episode was not intended to be confrontational, was relatively short, less than five minutes, and Mr Galea has recovered from his physical injuries, no doubt, your offending has caused him significant psychological harm. Understandably, because he no longer felt safe in his home, which he was sentimentally attached to, he sold it.
71Overall, I assess the objective gravity of your crimes to be mid-range.
72There are several mitigating factors which I take into account to moderate the sentence I will impose.
73Firstly, you are entitled to a measurable sentencing discount for your guilty plea. It has high utilitarian value; Mr Galea and his friends have been spared involvement in a criminal trial. It also demonstrates your acceptance of responsibility for your actions and your willingness to facilitate the course of justice.
74Secondly, you guilty plea is evidence of your remorse which, I accept, is genuine.
75Thirdly, I am satisfied your background of profound disadvantage compromised your capacity to mature and to learn from experience. These effects do not diminish over time. Accordingly, I accept your moral culpability is reduced.
76Fourthly, you suffer a number of psychological disorders, which are connected to your adverse childhood experiences. I am satisfied your detention in an isolated prison cell, where you spend long periods alone, is not beneficial to your mental health.
77It is plain that you need intensive drug rehabilitation and consistent mental health care to reduce your risk of reoffending.
78While your troubling criminal history causes me to be guarded about your prospects of rehabilitation, because you are still a relatively young man who has his mother’s support, I am cautiously optimistic you can reform. In that regard, it is very much to your credit, despite very limited formal schooling, you completed year 12 in juvenile detention. It shows you have the capacity to commit to a task and the ability to learn.
79Because you have spent more of your adolescent and adult years incarcerated than in the community, I am also mindful to impose a sentence which discourages your prisonisation and encourages your rehabilitation.
80Totality and parsimony principles apply.
Totality
81Because you are to be sentenced for several offences, I have had regard to the totality principle to ensure your sentence is an appropriate measure of your overall criminality.
Parsimony
82I have also had regard to the need to impose the least severe sentence necessary to achieve the purposes of sentencing. [3]
[3] Sentencing Act 1991 (Vic), section 5(3); R v Piacentino (2007) 15 VR 501, [47].
Conclusion
83Mr Lappin, by the sentence I impose, I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
84Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, Mr Lappin:
(a) on charge one – aggravated burglary, you are sentenced to 3 years imprisonment;
(b) on charge two – false imprisonment, you are sentenced to 12 months imprisonment;
(c) on charge three – causing injury recklessly, you are sentenced to nine months imprisonment;
(d) on charge four – you are sentenced to 12 months imprisonment; and
85I direct that 4 months of each of the sentences I have imposed on charges 2 and 4, and 3 months of the sentence I have imposed on charge 3, be served cumulatively on your base sentence and each other.
86Your total effective sentence is 3 years and 11 months imprisonment.
87I fix a minimum term of 2 years and 5 months before you are eligible for parole.
88I declare you have served 644 days of your sentence by way of pre-sentence detention.
89On the summary charge of unlicenced driving, you are convicted and fined $500.
90While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to five years and six months imprisonment and fixed a minimum non-parole period of four years.
91On the charge of the theft of a motor vehicle, I order all licenses and permits held by you, under the Road Safety Act, be cancelled and you be disqualified for a period of 12 months from obtaining any further license.
92I make an order for the disposal of the silver baseball bat, gold baseball bat, dagger and sheath, large wooden pole with wooden handle, two pairs of gloves and a jacket.
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