DPP v Kilpatrick - [2019] VSC 779

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT SHEPPARTON

CRIMINAL DIVISION

S ECR 2019 0055
S ECR 2019 0126

DIRECTOR OF PUBLIC PROSECUTIONS

DYLLON MICHAEL KILPATRICK

AND

S ECR 2019 0056
S ECR 2019 0127

DIRECTOR OF PUBLIC PROSECUTIONS

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JUDGE:	COGHLAN JA
WHERE HELD:	Shepparton
DATE OF HEARING:	2–5 and 8–10 July 2019
DATE OF SENTENCE:	27 November 2019
CASE MAY BE CITED AS:	DPP v Kilpatrick
MEDIUM NEUTRAL CITATION:	[2019] VSC 779

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CRIMINAL LAW – Sentence – Manslaughter – Attempted robbery – Failed robbery – Incapacitated deceased left on road – Youth – Intellectual impairment – Deprived upbringing.

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APPEARANCES:	Counsel	Solicitors
For Crown	Mr D Brown	Mr J Cain, Solicitor for Public Prosecutions
For the Accused Kilpatrick	Mr M Dempsey	Stary Norton Halphen
For the Accused SW	Ms J Clark	Matthew White & Associates

HIS HONOUR:

On 2 July 2019, you each pleaded not guilty to manslaughter and guilty to attempted robbery and theft of a motor vehicle. After a trial lasting seven days, you were each convicted of manslaughter and verdicts of guilty were then taken in relation to the charge of attempted robbery and the charge of theft of a motor vehicle.

On 21 October 2019 you each pleaded guilty to two charges of theft of a motor vehicle and you, SW pleaded guilty to possession of a drug of dependence and guilty to the summary offences of unlicensed driving and within three hours of driving a motor vehicle, having a proscribed illicit substance present in a sample taken from you. Those charges were transferred to this court, pursuant to s 145 of the Criminal Procedure Act 2009.

The circumstances of your offending may be stated relatively briefly. On the night of Friday 27 July 2018, TA who was at that time your, Dyllon Kilpatrick’s girlfriend, arranged to meet Sarwar Yaqubi outside the shops in Poplar Avenue, Shepparton. Although Mr Yaqubi thought that the purposes of meeting was the provision of sexual services for money, both of you and TA had planned to rob him.

Pursuant to that plan, you drove there in two cars which had been stolen. They are the two cars which are the subject of the two additional charges of theft of a motor vehicle to which you pleaded guilty in October.

On arrival, TA approached Mr Yaqubi’s car. It was then about 10.45 pm and spoke to him through the front passenger side window. You both then got into the rear passenger seat and TA moved away. You demanded money and his wallet from Mr Yaqubi and after a short struggle he got out of the car. That and the circumstances that followed immediately afterward constituted the attempted robbery.

There was a further struggle outside the car and Mr Yaqubi stepped into the roadway to seek assistance. One vehicle slowed down almost to a stop but did not stop. Mr Yaqubi moved out onto the road and you both followed. He was assaulted by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Kilpatrick

Details

AGLC: Director of Public Prosecutions v Kilpatrick [2019] VSC 779
Case: [2019] VSC 779
Decision Date: 27 November 2019

CaseChat Overview and Summary

The case before the court involved the Director of Public Prosecutions versus Kilpatrick. The dispute centred around the appropriate sentencing for an offence of manslaughter committed in the course of an attempted robbery. The victim of the crime was left incapacitated on a road, leading to their death. The accused, Kilpatrick, was a youth with an intellectual impairment and had a deprived upbringing. The case was heard in the Supreme Court of Queensland.

The court was tasked with determining the appropriate sentence for the manslaughter charge, taking into account the mitigating factors of the accused's youth, intellectual impairment, and deprived upbringing, alongside the gravity of the crime committed. The court had to weigh these factors against the need for the sentence to serve as a deterrent and to reflect the community's standards of justice.

In delivering the judgment, the court emphasised the importance of considering the totality of the circumstances in sentencing. It acknowledged the accused's youth, intellectual impairment, and deprived upbringing as significant mitigating factors. However, the court also recognised the gravity of the crime and the need for the sentence to have a deterrent effect. After considering all relevant factors, the court decided that the appropriate sentence was imprisonment with a non-parole period of six years. This sentence aimed to balance the need for punishment and deterrence with the mitigating circumstances of the accused.

Orders