Director of Public Prosecutions v Meulenbrock
[2010] VSC 113
•9 April 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1491 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KYLIE MEULENBROCK |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 April 2010 | |
DATE OF SENTENCE: | 9 April 2010 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Meulenbrock | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 113 | |
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CRIMINAL LAW – Sentence – Kidnapping – Recklessly causing serious injury – Guilty plea – Cooperation with prosecution – Undertaking to give evidence for prosecution – Youth – Suspended sentence of imprisonment appropriate.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G Horgan SC and Ms E Ruddle | Office of Public Prosecutions |
| For the Accused | Mr G Hughan | Andrew George Solicitors |
HIS HONOUR:
Kylie Sarah Meulenbrock. You have pleaded guilty to one count of kidnapping Leah Freeman, and one count of recklessly causing serious injury to Ms Freeman.
The offences, to which you have pleaded guilty, are alleged by the prosecution to have been committed by you in the company of four other persons, who have also been charged with other offences arising out of the same circumstances. Their trial is due to commence before me shortly. In sentencing you, I shall base my remarks largely on the statements of Ms Freeman, on your interview with, and statement to, the police, and on matters which were related to me in the course of the plea made on your behalf. Insofar as the observations I make in these remarks concern the involvement and conduct of your co-accused, they are, of course, based on evidence which has not been tested before a jury.
The offences occurred in the evening of 9 December 2008. On that date, some time after 8.00 pm, Ms Freeman was alone in her home in Clara Street, Brunswick, when one of your co-accused, knocked on the door. When Ms Freeman opened the door, he forced his way into the premises, immediately followed by a number of other persons, who are also your co-accused. Ms Freeman was then assaulted, and dragged from her home by the intruders. She was forcefully taken to three cars, which were parked a short distance away in Donald Street, Brunswick. There she was bundled into the boot of one of the vehicles, a Mitsubishi sedan, which belonged to you. She was then driven to the banks of the Maribyrnong River in Keilor. There Ms Freeman was further assaulted, and some of your co-accused attempted to drown her. After you and your co-accused left the scene, Ms Freeman managed to make her way to a nearby service station, where she received help.
As a result of the events, which I have just summarised, Ms Freeman suffered a number of injuries. They included a number of bruises and abrasions to the head and face, to both her hands and arms, and to her back, and bruising to both her legs. In addition, her general practitioner, who she consulted two days later, described her as being in a “very fragile psychological condition”, and as suffering from post traumatic stress disorder. It is accepted that those injuries constitute “serious injury” for the purpose of the second charge, to which you have pleaded guilty.
In your record of interview with the police, and in a statement which you subsequently made, you detailed how you came to be involved in the events of that evening. Shortly before 8.00 pm on 9 December, you had been visiting some friends, who lived close to where you then resided. There you were visited by your co-accused, with one of whom you were then in a relationship. They suggested that you go for a drive with them. You agreed. As a result, you and one two of your co-accused got into your vehicle, and your then boyfriend drove it. The other co-accused were in another vehicle. The two vehicles drove to a position near the house of Leah Freeman. There is a conflict in the evidence, in the depositions, as to whether you entered Leah Freeman’s premises. In your record of interview, and in your statement, you say that you did not enter her premises. The prosecution accepts, as do I, that a jury might not be satisfied beyond reasonable doubt that you were one of those who entered Freeman’s house, and took part in the assault on her there, and in the abduction of her from those premises. For the purposes of sentencing you, I accept that your liability, for the kidnapping, lies in the fact that you willingly took part in transporting Ms Freeman from Donald Street to the river bank at Keilor. I also accept that your liability, for recklessly causing serious injury to Ms Freeman, is constituted by your aiding and abetting the assault on Ms Freeman at the river.
Pausing there, the offences, to which you have pleaded guilty, are serious. In particular, the offence of kidnapping is most serious. The prescribed maximum sentence of 25 years’ imprisonment reflects the gravity attaching to that type of offence. By its nature, kidnapping involves the unlawful and forceful infringement of the personal liberty of another individual. In this case, the offence was committed in circumstances which were terrifying for Ms Freeman, and which were accompanied by a deplorable amount of violence and lack of respect for Ms Freeman’s dignity and person. In addition, the crime of recklessly causing serious injury is also serious, as is reflected by the maximum prescribed sentence of 15 years’ imprisonment.
On the other hand, I accept that your involvement in each offence was significantly less than that of your co-accused. In particular, you were not involved in the initial abduction of Ms Freeman, and I accept that you were unaware that that would occur, until you saw her being forcibly removed from her home by your co-accused. The evidence in the depositions does not enable me to conclude that you drove your car from Donald Street to Keilor. Accordingly, your involvement in her kidnapping consisted of your participation in the transporting of Ms Freeman, in the boot of your vehicle, from Donald Street, Brunswick to Keilor. Similarly, you were not directly involved in any of the physical violence that was inflicted on Ms Freeman. As I have stated, your liability for recklessly causing her serious injury is constituted by you aiding and abetting the assault on Ms Freeman at the river. Thus, I accept that, to that extent, your culpability for the two offences, to which you have pleaded guilty, is significantly less than that of some of your co-accused.
Nevertheless, in the absence of any substantial mitigating circumstances, your level of involvement in the offending, and the nature of the two offences, are such that I would be obliged to sentence you to a long term of imprisonment, in order to properly reflect the community’s condemnation of your wrongdoing, and to sufficiently satisfy the requirements of general and specific deterrence arising out of your wrongdoing.
However, there are a number of important mitigating circumstances, which are particularly relevant in determining the appropriate sentence to impose on you. You are now 20 years of age, and, apart from one minor matter, you have no previous convictions. In the course of his thorough and well presented plea on your behalf, Mr Hughan, your counsel, properly told me that, three years ago, when you were visiting your sister in Queensland, you committed the offence of theft by finding of a handbag, when you were at a shopping centre with your sister. For that offence, you were fined $300 without conviction. I accept Mr Hughan’s submission that that blemish on your record is of little relevance in determining your sentence in this case.
More significantly, there are two particularly substantial mitigating circumstances, which arise out of your conduct since the offending. On your arrest, two weeks after the night in question, you participated in a record of interview with the police, in which you made a number of admissions as to your involvement in the offending. Two months later, you made a statement to the police, which you signed, and to the truth of which you attested. On the plea before me, you gave evidence, in which you swore to the truth of the matters, which you had described in your statement, and you gave an undertaking to cooperate with the prosecution, and in particular to be available to give evidence as to the truth of the events described in your statement, if and when called upon to do so by the prosecution.
The circumstances, which form the background to your cooperation in this case, were outlined to me in some detail by Mr Hughan, and some of them are described in a supplementary statement which you made to the police on 17 February 2009. It is not necessary, and indeed it is not desirable, for me to set out in any detail the nature of those circumstances. However, on the material which has been put before me, I accept that your decision to cooperate with the prosecution, and your undertaking to do so, is a particularly courageous action by you. Based on the matters related to me by your counsel, and which are contained in your supplementary statement, I accept that you have been placed in a significant amount of fear arising from the admissions which you made in your initial record of interview and in your statement, not only as to your involvement, but also as to the involvement of others in the offending. I also accept that the evidence, which you will give at trial, will be of significant value to the prosecution.
In that way, your cooperation with the prosecution, and your undertaking to give evidence, is a particularly significant mitigating circumstance. The law recognises the importance of cooperation by people, such as yourself, to the criminal justice system, and thus an undertaking to cooperate, of the type which you have given, is ordinarily given substantial weight in determining an appropriate sentence. In this case, in light of the background circumstances, which have been related to me, I accept that that factor should be given particularly significant weight in your favour.
In addition, and coupled with your undertaking, is your plea of guilty. It is true that your plea has been made at a relatively late stage. However, the timing of your plea needs to be understood in light of the statement, which you made to the police in February 2009, admitting your involvement in the offences, and in light of the background circumstances, which transpired during 2009, and which had some impact on the timing of your decision to cooperate with the prosecution. It is accepted that, ordinarily, a plea of guilty should be regarded as a mitigating circumstance, and should, usually, result in a lower sentence than that which would otherwise be imposed on an accused. In your case, it was anticipated that your trial would proceed separately to, and before, the trial of your four co-accused. If that had occurred, then the victim, Ms Freeman, would have faced cross-examination on two occasions, if you had not pleaded guilty. Thus, your plea of guilty is of some significance, in that it has spared Ms Freeman the ordeal of giving evidence twice. In addition, your plea is of utilitarian value, in saving valuable Court time, and in sparing the community the expense of your trial. All of those matters, in my view, are relevant to the weight to be given to your plea of guilty as a mitigating circumstance.
Finally, I turn, briefly, to matters relating to your background. At the time of the offending, you were 19 years of age. You left school after Year 9 at the age of fifteen years. Regrettably, you have been involved in three unfortunate relationships. The first resulted in you becoming pregnant before your sixteenth birthday, and you have a son who is almost four years of age. The second and third relationships were each with men who were violent towards you. Happily, you have now been in a stable relationship with another man during the last eleven months. On your plea, I received a testimonial from your uncle, Mr Paul Warren. It is clear, from Mr Warren’s testimonial, that your involvement in the type of offending which has brought you to this Court is quite out of character for you. You are fortunate to have support from members of your family including your parents and your current partner. Based on those matters, it is unlikely that you will re-offend, and there is reason to be optimistic for your rehabilitation.
I turn, then, to the question of your sentence. As I stated, the two offences to which you have pleaded guilty are particularly serious, involving the violent infringement of the liberty and person of another individual. The victim of the offences was hopelessly outnumbered, and had no chance of properly defending herself. The circumstances in which the offending occurred were terrifying for her, as indeed was evidenced by her subsequent psychological state. The type of conduct involved in the offences is entirely unacceptable, and was a gross violation of the norms of a civilised society. In ordinary circumstances, as I have stated, it would be necessary for me to impose a significant term of imprisonment, in order to properly punish you, to demonstrate the Court’s and the community’s condemnation of your offending, and to act as an appropriate lesson to others who may be like minded to perpetrate similar offences. However, as I have also stated, I accept that there are particularly significant mitigating circumstances which operate in your favour.
Mr Hughan submitted to me that an appropriate disposition would be to impose a term of imprisonment on you of less than 3 years, and to wholly suspend that sentence. Mr Horgan SC, who appears with Ms Ruddle for the prosecution, has accepted that such a disposition would be within an acceptable range of sentence to be imposed on you.
Under the Sentencing Act, I may only suspend a sentence of imprisonment, if the term of imprisonment does not exceed three years. Further, I am only permitted to suspend a term of imprisonment imposed in respect of the offence of kidnapping, if there are exceptional circumstances, and it is in the interests of justice to do so.
If it were not for your plea of guilty and your undertaking to cooperate with the prosecution, I would not consider that 3 years’ imprisonment would be an adequate sentence for your involvement in the kidnapping, notwithstanding your youth, and notwithstanding that your participation in that offence was less substantial than that of some of your co-accused. However, as I have stated, I consider that your undertaking to cooperate, and your plea of guilty, are particularly significant mitigating circumstances. In light of those two factors, together with the matters relating to your background, your youth, and your lesser involvement in the two offences, I accept the submission made by Mr Hughan that a sentence of imprisonment of three years would be adequate in your case. I am also persuaded that there do exist exceptional circumstances, which would justify the suspension of the whole of your sentence. Those circumstances consist principally of your courageous decision to cooperate with the prosecution. I accept that, in light of that decision, a sentence of immediate custody would be particularly onerous on you. I am also persuaded that it is in the interests of justice that the sentence of imprisonment which I shall impose be suspended for a period of three years.
Accordingly I sentence you as follows:
•On the charge of kidnapping, I sentence you to a period of 2 years and 6 month’s imprisonment.
•On the charge of recklessly causing serious injury I sentence you to a term of imprisonment of 12 months.
•I direct that six months of the sentence on count 2 (recklessly causing serious injury) be served cumulatively upon your sentence on count 1 (kidnapping), making a total effective sentence of 3 years’ imprisonment.
Pursuant to s 27 of the Sentencing Act, I order that the whole of that term be suspended for a period of 3 years.
Pursuant to s 5(2AB) of the Sentencing Act, I announce that I am imposing a less severe sentence, than I otherwise would have imposed, because of the undertaking given by you to assist and cooperate with the prosecution on the trials of your co-accused, Craig Hills, Karen Hills, Nathan Carnevale and Brodie Cooper, and to make yourself available for that purpose, as and when required to give evidence on those trials. I shall cause to be noted in the records of the Court the fact that the undertaking was given, and the details of that undertaking.
You have pleaded guilty to the two offences for which I have just sentenced you. As I have already stated, I have taken into account your plea of guilty as a mitigating circumstance, which has resulted in a lower sentence than you would otherwise have received. Ordinarily, s 6AAA of the Sentencing Act requires me to state the sentence of imprisonment, which I would have imposed on you, but for your plea of guilty. It is particularly difficult for me to comply strictly with that provision in your case, because your plea of guilty is so inextricably connected with your undertaking to cooperate with the prosecution. I can, however, indicate to you that if it were not for your cooperation with the prosecution, and your plea of guilty, I would have sentenced you to an immediate term of imprisonment of 5 years, with a minimum non-parole period of 3 years and 6 months. Your plea of guilty has played a part, not only in reducing the term of imprisonment imposed on you, but also in persuading me to wholly suspend that term of imprisonment.
Finally, Ms Meulenbrock, I am obliged by the legislation to explain to you the purpose and effect of the order which I have just made.
You have been sentenced to a term of three years’ imprisonment. I have ordered that the whole of that sentence of imprisonment is to be suspended for a period of three years. If you commit another offence, punishable by imprisonment during the period of three years, you are liable to be charged with the breach of the suspended sentence, and return to Court, and you may be required to serve the whole of the suspended sentence in prison.
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