DPP v Kilpatrick
[2019] VSC 779
•27 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT SHEPPARTON
CRIMINAL DIVISION
S ECR 2019 0055
S ECR 2019 0126
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYLLON MICHAEL KILPATRICK |
AND
S ECR 2019 0056
S ECR 2019 0127
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SW |
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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 both of you and fell to the road. He was in the middle part of the road, towards the opposite side of Poplar Avenue. You both moved away. Unfortunately for Mr Yaqubi and for her, Ms Jodie Cox was driving east. She did not see Mr Yaqubi on the road. In part, she was distracted by your movements. At about the same time, TA was about to drive away, and that also provided a distraction.
Sophie Cox called out to her mother, but unfortunately Mr Yaqubi was run over and suffered fatal injuries, that is the manslaughter.
I am satisfied that you were convicted of manslaughter on the basis that you were jointly responsible for knocking Mr Yaqubi to the road, and that you left him in the knowledge or belief that he was incapable of getting off the road. The attempted robbery charges, and the car theft charges, as I have already observed, were not contested. The trial was conducted as economically as possible. I indicated after the trial and on the plea that it was reasonable for you to have conducted the trial. I am satisfied that you both regret the death of Mr Yaqubi and the other consequences of what occurred and wish that it had not have been the consequences of your actions.
Sarwar Yaqubi was 34 at the time of his death. He came to Australia from Pakistan as a refugee in 2012. He had a permanent protection visa and was working in Shepparton at the time of his death.
I received a victim impact statement from his daughter, Pari Yaqubi on behalf of her mother, herself and her brother. From the family’s point of view his death is catastrophic. At the time of his death, the family were not in a position to do anything about it. They lived 700 kilometres away from Karachi. Their financial position is very poor. They had received regular financial support from their father. I was informed of $800 a month, that is about 100,000 Pakistani Rupees. They had hoped that he would buy them a house. The consequences for them are far-reaching.
I received victim impact statements from Jodie Cox, Sophie Cox, Keeley Cox and Isaac Cox. Mrs Cox read her victim impact statement to the court, and the prosecutor read the other statements. The effect of these events on the whole of the family has been profound. The involvement in events which led to the death of another is difficult, and it strikes me that both Mrs Cox and her daughter Sophie, there now being an actual diagnosis in her case, are showing signs of post-traumatic stress disorder.
I repeat again, and cannot say strongly enough, that the members of the Cox family should not blame themselves, for they have nothing to blame themselves for. The family should seek as much support as they can through the Victims of Crime Assistance Tribunal, because that is their right. This, I hope, is the end of the major part of the criminal proceedings, and I hope that the family will be able, as time goes by, to put these events behind them. That is easy for me to say, harder for them to do, and I understand that. This is another example, of how far-reaching are the consequences of criminal activity of this kind.
Turning back to the events. After you left the scene, you and TA took the three cars to 7 Coe Court, Mooroopna. In the days following, you, Dyllon Kilpatrick and TA drove Mr Yaqubi’s Camry around Shepparton.
On Sunday 29 July 2018 the police recovered the other two stolen vehicles from 7 Coe Court, Mooroopna.
On Monday 30 July 2018, both of you, and TA were arrested on the West Ovens Track, Harrietville, in Mr Yaqubi’s motor vehicle. The vehicle was being driven by you, SW, and you had methylamphetamine in your shoe. Arising out of that conduct are the two summary charges.
After arrest, both of you were interviewed. You, Dyllon Kilpatrick, gave a number of versions, largely designed to write TA out of the script. In the later version you did accept that you had tried to rob Mr Yaqubi. You had punched and kicked him, and SW kept kicking him. You accepted he had been left on the road, but said he was sitting up, and you denied the removal of Mr Yaqubi’s car, again consistent with your attempt to give as much protection to TA as you were able.
You, SW, gave the police a reasonably complete version of events. You told the police you did go to rob the man; that when he got out of the car you pushed the driver, causing him to fall to the roadway, where you kicked him. You said words to the effect of, ‘He was making noises like you make when you’re knocked out’, and later ‘When he left the male was trying to get back up’. He was not sure if he got back up. You admitted going to the shops in the two stolen cars, and that TA had driven away in Mr Yaqubi’s car.
Although TA had originally been charged with manslaughter and aggravated carjacking and other matters, the prosecution decided not to proceed with the two more serious matters, and I remitted her case to the Children’s Court. Any disposition of her case is not relevant to your cases. I mention her only for the sake of completeness.
At the time of these events, you, Dyllon Kilpatrick, had just turned 18 years of age, your date of birth being 23 July 2000. You are now 19. You, SW, were 16, your date of birth being 8 September 2001, and you are now 18, that is you were born about 14 months apart.
You, Dyllon Kilpatrick, have appeared before the Children’s Court on a number of occasions, commencing when you were 13 years of age. You then had a series of appearances in January, February and May 2017, when you were 16. Those charges related to intentionally damaging property; burglary; theft of motor vehicle; deal property suspected of having been proceeds of crime; handle stolen goods and obtain property by deception; use and possess methylamphetamine; possession of a controlled weapon; and a series of bail offences. You were released on probation without conviction.
You appear to have kept most of the probations, but you were then again before the Children’s Court in March 2018, when you were 17, for assault; contravening a family violence intervention order; burglary; theft of a motor vehicle; and possession of a controlled weapon. You were released on a Youth Supervision Order for 12 months.
Then in April 2018 you were charged with trespass, wilfully damaging property; use methylamphetamine; and carrying a controlled weapon. You were released on a good behaviour bond for 12 months. You were on both that Youth Supervision Order and the adjourned bond at the time of this offending.
Although your offending over that period of time was reasonably persistent, it was not overly serious, and you have few court appearances involving violence.
You, SW, first appeared in the Children’s Court when you were 11, for burglary and theft. When you were 16, in April 2018, you were charged with intentionally damaging property; using methylamphetamine; unlawful assault; aggravated burglary; burglary; possession of stolen goods; reckless conduct endangering life; and reckless life endangering serious injury; possession of a controlled weapon without excuse; dangerous driving while being pursued by the police; theft of a motor vehicle; possession of cannabis; and some bail offences. You were released on probation for 12 months, and you were on probation at the time of this offending.
Although you, Dyllon Kilpatrick, are older and have more numerous prior convictions, you, SW, probably have been found guilty of more serious offences, including those involving reckless conduct endangering both life and serious injury.
Having assessed the role each of you played in this offending, I see no real reason to distinguish between you. The consequences will be somewhat different, as will emerge later in these reasons.
Detailed written submissions were received on behalf of both of you. I will deal first with the matters submitted on behalf of Dyllon Kilpatrick.
Dyllon Kilpatrick, on your plea I received, as I have just noted, detailed submissions to which are attached a number of documents which form part of an exhibit. These were:
(a) a chronology;
(b) reports from Dr Peter Estaugh dated 16 October 2010 and 16 April 2011;
(c) a report from Mr Peter Stanislawski dated 1 February 2018; and
(d) a report from Mr Mark Jackson, a neuropsychologist, dated 20 September 2019;
(e) a statement of intellectual disability;
(f) a number of documents from Justice Health from both Youth Justice and Adult Justice; and
(g) the relevant statistics relevant to the crime of manslaughter.
On your plea I was urged to take into account in your favour principally the following matters:
(a) your youth;
(b) your deprived background; and
(c) your intellectual disability.
You were just over 18 at the time of offending. You are of Aboriginal heritage, belonging to the Barkindji Nation of the Riverina region above Mildura. You are the oldest of six children. You were primarily raised by your grandmother in the absence of your parents. You grew up in Shepparton. You were placed in various Department of Human Services premises, but for various reasons you were moved around.
You have the support of your brother and sister, but little or no contact with your mother. From about the age of 12, you have had no fixed home, and have relied on your friends to have somewhere to live. You have suffered periods of homelessness. You had no actual home at the time of this offending. You did have one period of stability when you and your partner had a house, but you had to leave those premises. Over that time, that is from the age of 12, you have been exposed to drug use, and you started to use drugs yourself.
You completed primary school, but on moving on to secondary school, you were expelled in both Years 7 and 8.
As you were growing up you behaved aggressively, and were diagnosed with Attention-Deficit Hyperactivity Disorder (‘ADHD’), and you were prescribed Ritalin in primary school, which you took every day. When you were 10 you were diagnosed with Foetal Alcohol Attention Spectrum Disorder (‘FASD’), Disorganised and Disrupted Attachment Disorder, and Conduct Disorder.
Mr Stanislawski, a forensic psychologist, was the author of a Target Group Assessment Report dated 1 February 2018. You had been referred to him by Natalie Anderson, who is a Koori intensive support worker with Youth Justice, for you to be assessed for intellectual disability. As a result of the examination, the Statement of Intellectual Disability dated 21 February 2018 was issued.
Although you had been remanded in Youth Justice Centres on a number of occasions, you have never been sentenced to a custodial sentence. You were found by Mr Jackson to have a full-scale IQ of 65, which placed you in the range of mild intellectual disability. If anybody is interested in that, the word ‘mild’ in the way that those diagnoses are expressed, does not mean the same as we would ordinarily use the word ‘mild’, and if you have interest in it, I recommend that you make some research about it.
You have functioned reasonably in the community. You have had difficulty with communication because of your limited vocabulary and your difficulty in understanding conversations. When you left school after Grade 6, you were functionally illiterate and innumerate. You have been trying to remedy that situation in your time in custody.
Mr Dempsey, who appeared on your behalf, provided thorough, extensive and helpful submissions on your plea. It is convenient for me to make reference to those submissions by way of summary. Under the heading, ‘Intellectual disability’, he said this:
Mr Kilpatrick has been diagnosed as having a Mild Intellectual Disability on the basis of a Full-Scale IQ of 72 at age 10, as well as a Full-Scale IQ of 65 at age 17.
He left school in grade 6 and was assessed as having an intellectual disability as a child. His academic performance has consistently been well below expected levels for his age. Mr Kilpatrick fell in the extremely low range of the Wechsler Adult Intelligence Scale–Fourth Edition (WAIS-IV) and meets the cognitive adaptive and development delay criteria as stipulated in the Disability Act 2006.
While Mr Kilpatrick can function reasonably independently within the community, he has difficulty with communication, a limited vocabulary and difficulty understanding conversations he is involved in. Mr Kilpatrick is functionally illiterate and innumerate (though he is attempting to remedy these problems whilst on remand).
His contact with Disability Services commenced only in February 2018. His Client Overview Report in March 2018 stated that Mr Kilpatrick’s limited cognitive abilities have been accountable for some of his poor decision making and his impulsive behavioural undertakings leave him vulnerable to exploitation through negative influence of others. That is a concern whilst he is in adult custody. Mr Jackson notes that while Mr Kilpatrick thinks in a very black–and–white way, and has difficulty seeing alternative ways of considering information. He does not have executive skills to consider what other prisoners are saying to him and decide whether it is accurate or there is another way of looking at things. He would be at risk of accepting things at face value, and he would be at risk of other prisoners using him to do their ‘dirty work’. He would have a tendency to carry out behaviours without considering the potential consequences of that are.
Mr Jackson also outlines the domains in which the accused is deficient. His intellectual disability has permeated all areas of his life. That topic is of relevance when considering both the context of, and his culpability for, the present offending.
Mr Kilpatrick’s Mild Intellectual Disability, severe executive impairment and severe impairment of new learning clearly impacts on his ability to exercise sound judgement and reasoning. He is easily overwhelmed and therefore has serious difficulty remembering all of the information necessary to be taken into account when making decisions and solving problems. He will make decisions and problem solve on the basis of limited information. Furthermore, his abstract reasoning and logical thinking are very poor. As a result of this, he will think in a very black–and–white way. He has very limited ability to forecast the outcomes of his behaviour, nor does he have the ability to make plans for the future, apart from very basic needs.[1]
[1]Outline of Submissions on Plea filed 16 October 2019, [14]–[19].
Those submissions were based on material received from Youth Justice and the various reports to which I have referred, and I am satisfied that they fairly summarise that material.
It was further submitted that you have a history of mental illness, which involves self-harm, but you have reported no psychotic symptoms for two years and do not present with a mood disorder, depression or anxiety.
Your substance abuse has been significant. You have been abusing substances since you were 12, including alcohol, methylamphetamine and marijuana. When living with your grandmother, substance abuse was common in the household. You have been a heavy user of marijuana from age 12 until your remand and methylamphetamine from age 15, having been an occasional user of that drug from the age of 13. You had also used prescription drugs such as Seroquel and Valium on a daily basis from age 15. Not surprisingly, on occasions you have had adverse reactions to the drugs you have been taking.
You have spent the last 18 months - probably not quite 18 months - in adult custody almost entirely in the Salamander Unit at Port Phillip. That unit is designed for those with intellectual disabilities. You are a billet in the kitchen, trying to improve your literacy and have enrolled in a hospitality course.
At the time of offending, your life was somewhat aimless. You have never engaged in paid employment. You were spending your time stealing motor cars and driving around the neighbourhood. TA arranged to meet Mr Yaqubi, offering sex for money. You and SW decided to rob him. There were two of you and I suspect you imagined that it would be easy to rob Mr Yaqubi. It was not and it led to fatal consequences.
I accept that you thought not much force would be necessary and although I find that you were prepared to use force to achieve your robbery, that you did not expect consequences in any way as serious as they turned out. I accept that the death of Mr Yaqubi was an unintended consequence of your action and I have already noted that I accept that you regret that he was killed.
I accept that you are young, and your prior court appearances are not such that I would conclude that your youthfulness is diminished as a sentencing consideration. Although your prior court appearances are relevant, they do not equate to similar conduct, but you were on a Youth Supervision Order and adjourned bond at the time of this offending, that is you have not taken the opportunity which the criminal justice system has offered you.
Because of your youth, you have in law the presumption in your favour that it be a major purpose of sentencing to have regard to your rehabilitation.
Your background can properly be described as deprived, not only as the law understands it, but as ordinary people would understand it, and that is an important sentencing consideration in your favour. Your intellectual impairment is such that it also plays a significant part in your sentencing.
Although I am satisfied that illicit substances may have played a part in your offending, I am satisfied that there are features of your intellectual impairment which would bring you within established principles. In combination, your deprived background, together with your intellectual impairment reduce your moral culpability and moderate the significance of both general and personal deterrence.
Although the consequences of the death are very grave, because of the nature of the case, I do not regard this as a particularly serious example of the crime of manslaughter.
I am not prepared to say that you are hopeless. I am not prepared to say that you have no prospects of rehabilitation. It is, however, almost impossible to assess your prospects. You appear to have done well enough in custody for it to be said there is hope for the future.
I am obliged to have regard to just punishment, retribution, and general and specific deterrence in the way that I have already described, sensibly moderated. I am satisfied that your intellectual impairment will make your time in custody more onerous than for a person without your impairment.
I had you assessed for a Youth Justice Centre sentence, and you were found to be unsuitable. That report was somewhat bleak. I would not take so bleak a view of your future.
I was urged to give you a longer period on parole than usual, but I regard that course as potentially dooming you to failure. I regard the period of just under two years, which will be available under the sentence which I will impose, to be both practical and sensible in the circumstances.
If you would stand up for a moment, Dyllon Kilpatrick?
On indictment C1812007.2 on Charge 1, attempted robbery, you will be sentenced to imprisonment for six months.
On Charge 2, manslaughter, you will be sentenced to be imprisoned for five years.
On Charge 3, theft of a motor vehicle, you will be sentenced to be imprisoned for 14 days.
On indictment C18120071A, on Charge 1, theft of a motor vehicle, you were sentenced to be imprisoned for 14 days.
On Charge 2, theft of a motor vehicle, you were sentenced to be imprisoned for 14 days.
In relation to Charge 3 on indictment C1812007.2, and on Charges 1 and 2 on indictment C1812007.1A, any licence to drive a motor vehicle you hold is cancelled, and you are disqualified from obtaining a licence for three months. For avoidance of doubt, all sentences are to be served concurrently.
I declare that you have already served 485 days by way of pre-sentence detention, and I fix a period of three years before you will be eligible for parole. At the end of the remarks I have to make about SW, there are some other things I will say about that, and you may sit down. I will try and explain that in a bit more detail for you.
I am obliged in relation to Charges 1 and 3 on indictment C1812007.2, and in relation to both of the charges on indictment C1812007.1A, to make a declaration under s 6AAA of the Sentencing Act 1991 of what sentence I would have imposed had it not been for the plea of guilty.
On the charge of attempted robbery, I would have sentenced you to have been imprisoned for 12 months, and on the charge of theft of a motor vehicle on that indictment, for a period of 28 days. And in relation to the two charges of theft of a motor vehicle on indictment C1812007.1A, I would have fixed a period of 28 days in relation to each of those matters.
SW, on your plea I also received a detailed, thorough, careful and helpful outline of submissions, and the following matters were provided to me and marked as part of the exhibit:
(a) a chronology;
(b) a report from Dr Peter Dowling, neuropsychologist, dated 15 January 2018;
(c) a report of Dr Aaron Cunningham dated 16 October 2019;
(d) a Department of Health and Human Services intake report;
(e) a Department of Health and Human Services Cultural Support Plan;
(f) certificate of completed courses; and
(g) a letter from Parkville College.
You are now 18 years of age. You are a Yorta Yorta man. Your mother is of Aboriginal descent; your father is not. You have never had a relationship with your father. You have a younger brother and two younger half-brothers. You have over a long period of time been involved with child protection because, as your counsel Ms Clark set out in her submissions:
DHHS child protection have had longstanding involvement with SW and his siblings due to neglect, exposure to Mother’s alcohol abuse; family violence; physical abuse; and illicit substance use by family members.[2]
[2]Outline of Plea Submissions on Behalf of [SW] filed 18 October 2019, [8].
It follows that your care has frequently been in the hands of your extended family, particularly your grandmother, up until her death in 2011. After that, you lived with your uncle and his partner, with occasional visits from your mother. After your uncle’s relationship broke down, you were cared for by different family members, including an aunt, your grandfather, and your mother.
In December 2018 you were placed under a ‘Care by the Secretary Order’, which continued until you turned 18 earlier this year. Under the order you lived with your uncle Neville in 2016, when you were placed with your girlfriend’s family. You were then placed in residential care, because of your involvement with the criminal law, which I will come to shortly.
At the end of 2017 you were placed in Baroona Healing Centre for a period of four months. You lived in residential care in Shepparton, where you had many absences, having gone back to your mother.
You attended Mooroopna Primary School, where you struggled with literacy and numeracy. You attended Mooroopna Secondary College and remained enrolled until the first term of Year 10. You have done part time work for about five or six months in 2016 on a dairy farm, which apparently you enjoyed, and you have played football with several clubs for recreational purposes.
I have dealt with your prior convictions.
Your counsel usefully summarised the matter relating to your intellectual disability as follows:
Intellectual Disability
SW was assessed when he was 7 years old and 9 years old, and found to be functioning in the mildly intellectually disabled range.
He was assessed again in 2013 and was found to have a full-scale IQ of 56, which placed him at the lower end of the mildly intellectually disabled range. The overall finding was that [SW] met the criteria of the Department of Education and Early Childhood Development for consideration of the Program for Student with Disabilities (Intellectual Disability).
Dr Peter Dowling, clinical neuropsychologist assessed [SW] in December 2017, and he then scored at the upper end of the mildly disabled range overall, with a full-scale IQ of 69. Even with this slightly higher score, however, Dr Dowling notes that [SW’s] functioning is in the bottom 2 per cent of the population.
Dr Dowling conducted comprehensive testing, identifying several limitations in [SW’s] functioning. He noted in particular that [SW] has very limited abstract reasoning skills in the verbal domain.
Dr Dowling states, ‘Certainly it should not be assumed that he understands basic concepts pertaining to the courts, such as justice, community standards, or acting as a deterrent. Moreover, it’s most unlikely that he has any conceptual overview of the reasons for this offending behaviour’.
[SW] was also assessed by Dr Aaron Cunningham, psychologist, on 26 September 2019. He administered the SPN and found his performance placed him in the intellectually impaired range of non-verbal fluid intelligence, consistent with the prior neurological testing. Dr Cunningham also emphasised that [SW] would not have the same ability to foresee consequences of his actions as an individual of average intellect. Dr Cunningham reflects that [SW’s] assertion that he did not in fact foresee the consequences is consistent with his intellectual impairment.[3]
[3]Ibid [22]–[27].
And further, under the heading ‘Substance Abuse’:
In approximately 2012, aged 11, [SW] started smoking cannabis.
In 2014, aged 13, [SW] commenced drinking a substantial amount of alcohol, 12 cans per day on two days per week.
He started using methylamphetamine occasionally in 2016; by early 2017 he was smoking this drug daily.
He stopped using both cannabis and methylamphetamine in August 2017 and remained drug free whilst he was in Baroona Healing Centre for four months on a therapeutic program.
Unfortunately, he has returned to drug use, methylamphetamine, at the time of his offending.[4]
[4]Ibid [28]–[32].
You are prescribed Mirtazapine because you were seen to be significantly depressed after your conviction by the jury.
There are some outstanding matters about an incident at Malmsbury, which appeared to be an attempt to escape by stealing a staff member’s pass, which escalated. Although the alleged offending is serious, it did not seem to have about it any matters of premeditation and seem to have been just on the spur of the moment. It is important to note however, that when you were assessed for your suitability for a Youth Justice Centre Order, that matter was known, and you were nonetheless found to be suitable.
I received a letter from three of your teachers at Parkville. They regard you as having been engaged and motivated in school work, including cultural activities and I received, as I already noted, a copy of a Cultural Support Plan which was done in June 2019. I am satisfied that your recent behaviour in Parkville has been good and I was impressed by the fact that the unit supervisor, Ms Lakshmi, came to Shepparton on your plea. You have achieved ACE gold, a way of assessing the behaviour of young persons at Parkville. That is regarded as being a significant achievement in your case.
I have set out what I say about the circumstances of offending. I repeat that I regard this as not the most serious example of the crime of manslaughter, but a man is dead, and the consequences of his death are very serious.
I have taken into account your youth. You were a child in the eyes of the law at the time of the offence. I have taken into account your intellectual disability and your deprived background. They are all matters which operate in your favour. I am satisfied that because of your intellectual disability and your deprived background, in particular your moral culpability is reduced, and general and specific deterrence are to be moderated.
I accept that your term of incarceration will be harder than it might be for a person without your disability, but because it will be in a Youth Justice Centre, that moderates that consideration to an extent. I accept that you regret what happened to Mr Yaqubi and accept that it was an unintended consequence of your conduct.
I had you assessed as to suitability for Youth Justice Centre Order and you have found to be suitable. That however, is not the end of the matter. There are at least two other considerations. You have been convicted of manslaughter, which is a Category A serious youth offence and I must not make a Youth Justice Centre Order unless I am satisfied that exceptional circumstances exist. It is trite to say that exceptional circumstances may be made up of a number of factors which alone, would not be exceptional but in their totality are. In this case, I regard the following matters when taken together, as amounting to exceptional circumstances.
One, your youth and the fact that you were a child at the time of offending. You have an intellectual disability. You have grown up in extremely deprived circumstances. It is desirable to keep you out of adult prison and you have been making at least reasonable progress where you are. As I have already observed, I do not regard this offending as being of the upper end of the range. It is my intention on that basis, to sentence you to a sentence in a Youth Justice Centre.
I, though, need to have regard to whether or not the maximum of four years that I may impose, would be a suitable sentence. I would not regard it as have being sufficient, as was urged on me on the plea, I can though have regard to the fact that you have pre-sentence detention of about 14 months and if I do not give you the credit for the whole of that pre-sentence detention, I can arrive at a sentence which I would regard as being sufficient for your conduct. That is, a sentence within the range for offending of this kind.
It is an unusual step and I do it because as I already just noted, I think it is undesirable to send you to an adult prison if that can be reasonably avoided.
If you would stand up, SW.
On indictment C1812007.2, on the charge of attempted robbery, you are sentenced to be detained in a Youth Justice Centre for six months;
On Charge 2, manslaughter, you are sentenced to be detained in a Youth Justice Centre for four years;
On Charge 3, theft of a motor vehicle, you are sentenced to be detained in a Youth Justice Centre for 14 days;
On Indictment C1812007.1A, on Charge 1, theft of a motor vehicle, you are sentenced to be detained in a Youth Justice Centre for 14 days;
On Charge 2, theft of a motor vehicle, you are sentenced to be detained in a Youth Justice Centre for 14 days;
On Charge 3, possession of a drug of dependence, you are sentenced to be detained in a Youth Justice Centre for seven days.
On the summary offences, Charge 8, driving whilst unlicensed, you are convicted and discharged.
On the summary offence, Charge 10, prescribed illicit drug in the fluid sample, you are convicted and discharged.
On Charge 3, on indictment C1812007.2 and Charges 1 and 2 on indictment C1812007.1A, you are disqualified from obtaining driver’s licence for three months.
On Charge 10 of the summary charges, you are disqualified for a period of six months, that is disqualified from obtaining a licence to drive.
To make matters clear, I declare that in relation to both indictments, all sentences are to be served concurrently, and I declare that I have taken into account that you have already served 120 days by way of pre-sentence detention.
In relation to Charges 1 and 3 on indictment C1812007.2, I declare pursuant to s 6AAA of the Sentencing Act 1991 that I would have sentenced you to one year’s detention on the attempted robbery, and 28 days’ detention on theft of a motor vehicle had it not been for your plea of guilty; and on indictment C1812007.1A I indicate that I would have sentenced you to be detained in a Youth Justice Centre for 28 days on Charges 1 and 2, and 14 days on Charge 3, had it not been for your plea of guilty.
Because you are standing up, I can deal with you first. What does it all mean? That means that from today, from this day, you will be obliged to serve four years in a Youth Justice Centre, minus 120 days, because I have given you the benefit of that. What that means is that you are now in the hands of the Youth Parole Board, and at any time in relation to your sentence, they may choose to grant you parole. Whether you get parole or not, when and in what circumstances, will depend largely on how you go.
Because you are a youth, and because of the way that Youth Justice Centre programs works, there is no fixed time at which they are obliged to consider parole.
If I can come back to you, Mr Kilpatrick, for a moment? You can sit down, thanks.
Mr Kilpatrick, you have got four years to serve from today, but because I have fixed a non-parole period of three years, in two years from today you will be eligible to apply for parole. But whether you get parole or not is a matter that is in the hand of the Adult Parole Board, and again I can only emphasise to you that your behaviour whilst in custody will have by far the most compelling effect on whether or not you will get parole at that time, all right?
I just say to the members of the Cox family, there is not a lot I can say, really, because I have not been in your position. It is no good people like me sitting up here and saying, ‘I know how you feel’, because we do not. We do not, and we cannot. We sort of try and do our best, that is all, and I just wish you the best in the future, that is all. And I cannot emphasise enough to say, please do not blame yourselves. Please do not. And I say that on behalf of the community, really. I do not just say it as me. I say it with the weight of my office. Just do not blame yourselves.
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2
0
0