Director of Public Prosecutions v McKillop
[2025] VCC 719
•5 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01589
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID MCKILLOP |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2025 | |
DATE OF SENTENCE: | 5 June 2025 | |
CASE MAY BE CITED AS: | DPP v McKillop | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 719 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence.
Catchwords: Armed Robbery of a liquor store and a convenience store – Armed with a screwdriver – Plea of guilty at the earliest opportunity – Long standing substance abuse – Significant mental health issues – Acquired brain injury – Verdins limbs 3 and 4 – Lengthy criminal history.
Legislation Cited: Crimes Act 1958; Mental Health and Wellbeing Act2022; Sentencing Act1991.
Cases Cited:R v Berry [2019] VSCA 291; R v Bieljok [2018] VSCA 99; R v Harrison [2008] VSCA 65; R v Verdins (2007) 16 VR 269.
Sentence: 2 years and 2 months’ imprisonment with a non-parole period of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | G. Hogg (Plea) A. Ruberto (Sentence) | OPP |
| For the Accused | J. Kennedy | VLA |
HIS HONOUR:
1David McKillop, you have pleaded guilty to two charges of armed robbery, contrary to section 75A of the Crimes Act 1958. This offence carries a maximum penalty of 25 years’ imprisonment.
Circumstances of offending
2The circumstances of your offending are set out in an agreed Summary of Prosecution Opening for Plea dated 20 May 2025.[1]
[1]Exhibit A.
3At approximately 2.40 pm on 19 June 2024 you attended the Grape and Grocer store in Brighton. Mr Melhem, an employee in the liquor section of the store, observed you trying to hide a bottle of 700 ml Hennessey on your person.
4Upon being observed, you returned the bottle to the shelf. You then produced a flat head screwdriver, approximately 10 centimetres in length, and demanded that Mr Melhem “give [you] ciggies”.
5You then picked up the same bottle of Hennessey while holding the screwdriver and exited the store.
6You were pursued by Mr Melhem who attempted to retrieve the bottle. You then threw the bottle at him while leaving the scene. The bottle shattered on the road. You then ran down the road while holding the screwdriver.
7A few minutes later you attended a 7/11 convenience store also in Brighton. You went to the front counter and requested a packet of cigarettes from the store manager, Ms Vanga. Another employee was also present.
8Ms Vanga requested payment, and you then produced the screwdriver used in the previous incident, and stated “give me the cigarettes”.
9Ms Vanga and the other employee then left the counter area and locked themselves in the back office, due to being fearful of you. Ms Vanga called triple 000, requesting police.
10While they were in the back office, you jumped the counter and gained access to the cigarette cabinet and took seven packets of cigarettes before exiting the store.
11Police arrived shortly after you had exited the premises and obtained CCTV footage from Ms Vanga. Upon reviewing the footage, the police identified you from previous dealings.
12Police searched the area and at 5.30 pm you were located in Brighton East. You were transported to Moorabbin Police Station and did not make any comment in your record of interview.
13You were refused bail and remanded into custody, where you have remained since.
Criminal history
14I have had regard to your admitted criminal record. You have amassed a very lengthy criminal history dating back to March 2000. While you have no priors for armed robberies, you have numerous priors for offences of dishonesty and violence. This includes four priors for robbery and attempted robbery, numerous priors for theft and attempted theft,[2] including shop theft, priors for a number of burglaries,[3] going equipped to steal, assaults, criminal damage, make threat to inflict serious injury and possessing dangerous articles in a public place. You have been sentenced to Community Based Orders and a Community Correction Order, which you have breached. Similarly, you have breached suspended terms of imprisonment. You have received many terms of imprisonment, but only one involving a non-parole period. That sentence, the longest you have received, was one of 15 months’ imprisonment with a non-parole period of 9 months imposed on 7 November 2012. Your last custodial sentence was imposed on 16 March 2023 for offences including unlawful assault, threat to inflict serious injury, theft and burglary. You were sentenced to a total term of 242 days. You were released the same day you were sentenced, having accumulated 242 days in pre-sentence detention.
[2]Exceeding 30 priors for theft and attempt theft.
[3]Including attempted burglary.
Personal circumstances
15You were born in September 1981 and are now 43 years of age.
16You were raised by your mother and father. You have had a troubled relationship with your father due to the domestic violence you say he inflicted upon you and your mother. Your parents moved to Perth in 2001 and remain together.
17You have maintained regular contact with your twin sister, who now resides in Melbourne. You also have a younger brother who lives in Perth.
18You attended a local primary school from Prep to Grade 6. You were hyperactive and easily distracted. At the age of 7 you were diagnosed with epilepsy and have suffered from seizures since you were 12.
19You attended your first high school until the middle of Year 9, when you were expelled due to graffitiing on the school premises. After being expelled you moved to another high school where you completed Year 9 before leaving midway through Year 10.
20Subsequently, you completed a 16 week course in carpentry at Frankston TAFE and part of a signwriting course.
21Your first job was in carpentry where you had a four-year position from the age of 18, but this was hampered by your drug use. You have also completed jobs such as house painting and decorating, and signwriting. While previously employed you have been in receipt of a Disability Support Pension over many years.
22You commenced drinking alcohol and using cannabis at 12 years of age and began using illicit intravenous drugs, including amphetamines and heroin, at the age of 15. You have experimented with LSD, mushrooms and ecstasy. You utilised GHB when you were weight training. In 2007 you started using methylamphetamine. You have also been using cocaine.
23When you were 15 you moved to a flat in Cheltenham with an older friend, who was aged around 19. In this environment you were exposed to illicit drug use and were subsequently removed by Child Protection services. You remained in contact with this friend while living in residential care.
24At the age of 15 you were involved in a motor vehicle accident involving a stolen vehicle. As a result of this accident and perhaps damage sustained from your seizure activity, you were diagnosed with an acquired brain injury. Additionally, you were in a motorcycle accident also in your teens which left you unconscious and required a spinal operation.
25By 17 you were in youth detention. Since around 2001, you have lived an itinerant lifestyle and served recurring terms of imprisonment. When not in prison you resided in many different places and have had periods of homelessness.
26You had three admissions to psychiatric wards between 1999 and 2001 and again in 2004 at the Alfred Hospital. In 2007 you engaged with a neuropsychologist from Heidelberg Austin Hospital. You were admitted to Thomas Embling hospital where you were diagnosed with bipolar disorder, antisocial personality, and schizoaffective disorder. You said that you heard voices and reported hearing messages from the television.
Defence submissions
27Ms Kennedy, who appeared on your behalf, provided the court with written submissions,[4] supplemented orally. Ms Kennedy conceded that a term of imprisonment was inevitable and did not agitate for a combination sentence involving a Community Correction Order. During the plea hearing, she sensibly conceded that a term of imprisonment involving a head sentence and a non-parole period was appropriate.
[4] Exhibit 1.
Gravity of the offending
28Armed robbery is an inherently serious offence. That fact is abundantly clear from the maximum term of 25 years’ imprisonment.
29Ms Kennedy highlighted, with which I do not disagree, that the offending fell towards the lower end as far as armed robberies are concerned. While you produced a screwdriver, it is not suggested that it was thrust at the victims or otherwise used to cause any injury. No verbal threats of violence were uttered. The offending was of short duration committed in day light and lacking any real sophistication.
30Having said that, I make it plain that your actions would have been frightening for the victims. Indeed, the two employees at the 7/11 convenience store left the counter area and locked themselves in the back office. As Ms Hogg submitted, on behalf of the prosecution, your offending was perpetrated against two ‘soft targets’ in a brazen manner.
31Such offending must give significance to general deterrence. In light of your extensive criminal history as already highlighted, deterring you also assumes importance.
Mental health
32I bear in mind your lengthy mental health history and the challenges in treating you.
33You are currently in custody and prescribed two antipsychotic medications, Quetiapine 200 micrograms modified release and Olanzapine 15 micrograms. You are being managed by the Forensicare mental health outpatients team. You are a P2 rated prisoner meaning you have a “significant ongoing psychiatric condition requiring regular monitored psychiatric treatment”. You are regularly reviewed by both psychiatric nurses and the registrar.[5]
[5] Exhibit 4.
34The Forensicare summary document confirms 27 inpatient admissions since June 2002.[6] In the more recent past, you were admitted to the Apsley Unit at the Thomas Embling Hospital from 18 to 23 February 2021 and again in February 2023.[7] You have had many admissions to prison inpatient units since March 2003, the most recent being at the Acute Assessment Unit at the Melbourne Assessment Prison between 25 and 28 January 2022. You have had many compulsory assessment and treatment admissions under the Mental Health and Wellbeing Act2022. You were subject to an inpatient assessment order on 28 May 2021.[8]
[6]Exhibit 5.
[7]Exhibit 3, [3].
[8]This Order is now revoked.
35Tendered on your plea were two reports: a psychological report prepared by Ms Gina Cidoni dated 2 December 2021,[9] and a psychiatric report prepared by Dr Remy Glowinski dated 24 February 2023.[10] Whilst I do not have an up to date report, it is clear from all the material tendered on your plea that you have longstanding mental health issues. In his report, Dr Glowinski states:[11]
Mr McKillop has a well-documented history of a severe psychotic condition, whether this be schizoaffective disorder or schizophrenia, complicated by an acquired brain injury and substance use. There has also been psychosocial dysfunction for many years with Mr McKillop itinerant and in and out of prison. I note a previous diagnosis of antisocial personality disorder and Mr McKillop's presentations did nothing to dissuade me of the applicability of this diagnosis.
[9]Exhibit 2.
[10]Exhibit 3. This report was prepared in respect of Mr McKillop’s fitness relating to a matter before the Magistrates Court.
[11]Ibid, [43].
36Ms Cidoni states:[12]
Mr McKillop has long standing diagnoses of Bipolar Disorder [and] Schizoaffective Disorder…Substance-induced psychotic disorder is also considered, where many positive and active symptoms co-occur with chronic substance abuse.
[12]Exhibit 2, [69].
37Ms Cidoni further adds:[13]
The impact of substance abuse on his psychiatric conditions, notwithstanding epilepsy and ABI, would be major. The antipsychotic medications would have only limited efficacy when he continues to use substances while taking them. The interactions of different drugs and alcohol have further adverse effects on his ability to function and can reduce or interfere with the function of prescribed medications.
[13]Ibid, [72].
38I accept Ms Kennedy’s submission that, in light of your long standing mental illness, I can moderate to some limited extent the application of general and specific deterrence.[14] The moderation is limited because whilst you have been diagnosed with serious mental health disorders necessitating admissions over many years, you have not helped by continuing to abuse illicit substances.
[14]Limbs 3 and 4 of R v Verdins (2007) 16 VR 269 (‘Verdins’).
39If you are to benefit from treatment and your medication regime, you must maintain abstinence from all substance use in the community.
40In that regard, I am pleased that you have secured support and funding through the National Disability Insurance Scheme. The funding was confirmed on 4 April 2025. I have had regard to the letter from Ms Nunn dated 20 May 2025,[15] confirming the funding and the support that will be available to you. You will have access to 40 hours of one on one support each week over six days. It is hoped that you take advantage of this support in assisting you with independent living and providing referrals to appropriate agencies in order to address issues relating to your medical, mental health and drug treatment needs.
[15]Exhibit 6.
41Whilst in custody, you have engaged with the ReStart program. I have had regard to Ms Everett’s letter dated 20 May 2025.[16] This program provides outreach support to help prisoners on remand to establish supports and community linkages over a three month period. You have appeared to engage well with the program and have identified transitional support needs in the areas of health and independent living skills. If necessary, ReStart will provide you with support for three months upon your release.
[16]Exhibit 7.
42Whilst these supports are encouraging, in light of your long criminal history, in the context of your ongoing mental health and substance abuse issues, I cannot have any great hopes as far as your rehabilitation is concerned. I hope you prove me wrong and take some steady steps, aided by the support available to you, to make changes to your life without resorting to drug use. You have maintained abstinence over a prolonged period in custody whilst taking your medication. It is imperative that abstinence continues once you are released.
Pleas of guilty at the earliest opportunity
43Ms Kennedy relied on your early pleas of guilty. I accept that your early pleas entitle you to a significant discount in your sentence. Your pleas of guilty have saved the community the time and cost of a trial and have spared the victims from having to give evidence. They have facilitated the course of justice and you have taken responsibility for your actions.
44Whilst your pleas of guilty are significant, I am unable to conclude that there is any evidence of genuine remorse.
Prosecution submissions
45Ms Hogg’s oral and written submissions,[17] with the exception of the application of Verdins limbs 3 and 4, were not controversial. She accepted that you entered pleas of guilty at the earliest stage and that it was encouraging that you have support available to you through the involvement of the NDIS. Nevertheless, she submitted that your prior criminal history, as well as poor mental health and substance abuse issues, suggest that your prospects of rehabilitation are poor. Ms Hogg maintained that a term of imprisonment involving a head sentence and a non-parole period was an appropriate disposition bearing in mind all factors including the gravity of your offending. She referred me to three comparative sentencing decisions which I have read.[18] She submitted that general deterrence and specific deterrence assumed particular importance as well as the protection of the community.
[17] Exhibit B.
[18]R v Berry [2019] VSCA 291; R v Bieljok [2018] VSCA 99; R v Harrison [2008] VSCA 65.
Sentencing
46Having carefully considered all the matters raised in this case, and weighed the various sentencing considerations, I sentence you, Mr McKillop, as follows:
47On Charge 1, armed robbery, you will be convicted and sentenced to 1 year and 9 months’ imprisonment.
48On Charge 2, armed robbery, you will be convicted and sentenced to 1 year and 11 months’ imprisonment.
49The sentence on Charge 2 will be the base sentence. Three months of the sentence on Charge 1 will run cumulatively upon Charge 2.
50This makes a total effective sentence of 2 years and 2 months’ imprisonment.
51I set a non-parole period of 15 months.
52If you are granted parole,[19] then there will be a further element of supervision whilst the NDIS plan is implemented.
[19]Which is a matter for the parole board.
Pre-sentence detention
53Pursuant to s 18 of the Sentencing Act, the period of 337 days of pre-sentence detention is declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the Court’s records.
S 6AAA declaration
54Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 4 years’ imprisonment with a non-parole period of 2 years and 6 months.
55HIS HONOUR: Ms Ruberto anything arising?
56MS RUBERTO: No your Honour.
57HIS HONOUR: Ms Kennedy anything arising?
58MS KENNEDY: Nothing your Honour.
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