DPP v Kilpatrick [2025] VCC 1405

1. Your personal circumstances were outlined in defence submissions.
2. You were born in 1995 and are now 30 years old. You spent your early years living with your parents and two brothers on a property on the banks of the Murray River. Unfortunately, your father died from leukaemia when you were only five years old. Your mother never remarried and raised you as a single mother. When you were 13 years old you moved to Euston for your mother's work. You had a good relationship with your mother and brothers growing up, and still do, although you attribute the poor decisions you made in early adulthood to the absence of an older, positive male role model during your upbringing.
3. You have Māori heritage on your mother's side and often travelled to New Zealand to visit family in your youth.
4. You completed the Year 12 TAFE pathway. You have not done any other formal training or education but have worked for most of your adult life including in construction, mining and farming.
5. You started drinking alcohol when you were 16 years old and used cannabis between the ages of 16 and 21. You started using methylamphetamine when you were 21. You claim to have abstained from drug use for lengthy periods and that you want to be abstinent in the future as you know that when you use drugs you mix with the wrong people.
6. You have no mental health issues and are in good physical health.
7. You had a short relationship when you were 26 years old which resulted in a daughter now aged three. You have maintained contact with your daughter and her mother. Whilst you have been on remand your daughter was taken into foster care as a result of her mother's drug use. You have video calls with her once per week and you say that your daughter provides strong motivation to improve your life.
8. Whilst in custody you have worked as a billet and completed all available educational courses and programs. You are in the process of doing a 12-week 'Positive Lifestyle Program' that contains modules focusing on self-awareness, anger, depression, loneliness, stress, grief and loss, assertiveness, self-esteem and future direction. You also attended six sessions with Narcotics and Alcoholics Anonymous and have abstained from using drugs.
9. Upon release you intend to return to Mildura to live with you mother, older brother and other family members. You want to find employment and work towards having your daughter returned to your care.

Objective Gravity of your offending and moral culpability

1. The objective gravity of the offending and the moral culpability of the offender are critical to any sentence.
2. If there was any doubt about the inherent seriousness of your offence of carjacking, the maximum penalty and mandatory sentence of imprisonment make it clear.
3. Mr Dogger submitted that your particular instance of carjacking fell towards the lower end of the spectrum of seriousness for the offence. He submitted there were a lack of a number of aggravating features such as premeditation, sophistication, financial motivation and there were no serious injuries. He pointed out that the offending was of short duration, and although it took place in the victim's home, at least it meant she was not stranded in a public place without means of help.
4. The fact it is possible to envisage worse case scenarios does not detract from the seriousness of what you did. Although you were obviously carrying a bandana on the night, I accept that your offending was relatively spontaneous in the sense that you saw an opportunity and took advantage of it. Accepting that you may not have known whether anyone was actually in the car when you started walking towards it, you very soon after would have realised that someone was. In any event, given the overhead garage lights were on, the headlights were on, and the engine was running, you would have realised that the driver was not far away if not actually in the car. I am satisfied that you were determined to take the car no matter what, and that is what you did. Further, upon seeing that your victim was a woman, and not a youthful woman at that, you would have realised that she was an easy target. You gave no thought to her or her emotional or physical wellbeing. It was cowardly, violent and selfish behaviour and all because you wanted to drive to Mildura for the night. Further, although your offending was naïve in some respects, the fact you threw Ms Newland's mobile phone away indicates a level of sophistication. It is worth noting that it was ultimately located by the 'find my iPhone app.'
5. As far as the fact your offending took place in the offender's home rather than a public place is concerned, this is probably a case of comparing apples with oranges. Both scenarios are bad for different reasons. In this case you shattered the victim's sense of security in her own home.
6. All up, I consider your offending to be a midrange example of both offences. There is nothing in your background or personal circumstances to reduce your moral culpability and I find it to be high.

1. Ms Newland's victim impact statement clearly illustrates how far-reaching the impact of your crime has been. There have been emotional, physical and financial effects, not to mention a great deal of inconvenience.
2. Ms Newland now feels scared, unsafe and vulnerable even in her own home, a place that was once her sanctuary. Before this she was an active and engaged member of her local community enjoying socialising and time with family. Now she describes herself as a nervous anxious person who no longer is confident to go out alone, particularly at night.
3. She suffered a large graze and bruising to her back from falling, and she also had red welts and swelling and bruising to her arm.
4. On 30 January Ms Newland was examined by a doctor. That doctor said that the victim, Ms Newland, had right shoulder and right elbow pain, bruising to the upper right forearm and decreased range of motion in her right shoulder. Further, she had left shoulder pain, right hip pain on standing and low thoracic back pain with bruising and grazed evidence on examination.
5. These physical injuries were enduring and Ms Newland was still feeling the effects at the time of writing her victim impact statement, particularly her right arm and shoulder which suffers from reduced mobility.
6. There was also a considerable financial burden on Ms Newland due to her not being able to work for some time and needing to replace her car and all the other items that she lost. She had to replace her car because you destroyed the diesel engine when you filled it with unleaded petrol. Insurance only paid for part of the replacement cost, and she had to hire a car in the meantime. Quite apart from all the inconvenience and time involved, Ms Newland put her out of pocket costs at around $27,000.
7. Ms Newland also lost the $100 note from her mother, which was an item of considerable sentimental value.
8. Ms Newland describes now feeling angry and negative. She is having difficulty regaining her confidence and her ability to trust. Instead of her 'twilight years' being filled with peace and happiness, they are now marred by fear, social withdrawal and anxiety because of what you did.

1. I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both. I was not referred to any comparable cases, but I have had a look at the most recent Sentencing Advisory Council Statistics of the higher courts for the five years up until 30 June 2023 for both your offences.
2. They indicate that almost 94 per cent of charges of carjacking for those five years resulted in a term of imprisonment ranging in length from just over a month to five years, with two to three years being the most common sentence at 31 per cent.
3. Of course, statistics never tell you anything about the details of the case. That said, the range of terms of imprisonment could be expected to broadly reflect the full spectrum of seriousness of the cases involved. It is also likely that some of the sentences would have been reduced because of the combined effect of the Worboyes' principle and the increased burden of imprisonment during COVID.

1. You are entitled to a significant discount in your sentence for the fact you pleaded guilty and did so at a very early stage. In fact, as I have outlined, you were even prepared to, and did actually plead guilty at committal, to the more serious charge of aggravated carjacking, which is to your credit. In pleading guilty you facilitated the course of justice and took legal responsibility for your crimes. You have also spared Ms Newland and other witnesses the ordeal of coming to court to give evidence and going through the court process.

1. You have a relatively limited prior criminal history dating back to 2014 when you would have been 19 years old and mostly consisting of family violence matters and some other violence and dishonesty offences. You have been sentenced to fines, Correction orders, suspended sentences and three terms of imprisonment totalling less than one month.
2. Mr Dogger submitted your priors are mostly for offences not obviously relevant to the present matter. It is true they were of a different type, but unfortunately what they demonstrate is that you have not been deterred by the sentences previously imposed. Not only have you not been deterred, the current matter is a significant escalation in your offending. The fact you were prepared to commit such a serious crime for such a trivial reason is concerning.
3. You have a number of things going for you that many people who come before the courts do not have. You have had a relatively good employment history, including in prison, and have supportive family and have no mental health issues. You also now have the motivation to abstain from illicit drugs given you want custody of your daughter.
4. All up, I consider your prospects to be reasonable. You do have the ability to make something of yourself upon your release if you choose to do so.

1. In determining the appropriate sentence, I must consider the impact of a term of imprisonment on you. I accept that you are finding imprisonment difficult because of the worry about your daughter and the fact you only have limited contact with her. Other than that, it does not appear that there is any particular burden on you over and above any other prisoner.

1. I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required. Of course, that sentencing principle has been modified somewhat by the mandatory sentencing provisions applicable to you which I have already outlined.
2. The sentencing principles of general deterrence and denunciation are important for offences of carjacking. The punishment must be such as to deter people who are tempted to commit such offences from doing so. Further, given your history, the principles of specific deterrence and community protection also have a role to play. I do not consider it appropriate to order a term of imprisonment on the carjacking and a Correction order on the assault charge. Not only is such a sentence somewhat artificial given the overlapping elements, your offending is too serious. Nothing other than a term of imprisonment involving a head sentence and non-parole period is called for. That said, I will accede to Mr Dogger's submission that I fix a relatively low non-parole period to account for your prospects of rehabilitation.
3. Finally, to avoid punishing you twice for the same behaviour and because your two offences are founded on the same facts, I am imposing an aggregate sentence on them.

1. I convict and sentence you on the two charges to an aggregate term of imprisonment of three years, and in respect of that sentence I fix a non-parole period of two years.
2. I declare you have already served 226 days of imprisonment, not including today, in respect of that sentence, and I order this declaration be entered in the records of the court and the period deducted administratively.

1. I recognise that cancellation of a licence is a form of punishment and that it is particularly onerous in country areas. The prosecution submitted that your offending, in particular the carjacking, was a serious motor offence under s87P of the Sentencing Act because you were alcohol-affected at the time. If that was the case the minimum disqualification period of 12 months under the Sentencing Act was applicable. Mr Dogger, on the other hand, submitted there was insufficient evidence to make that finding. As I said to Mr Dogger, it is not necessary for me to make that determination as in my view I should cancel and disqualify your licence in any event for at least 12 months. Driving is a privilege, not a right, and if you choose to steal another person's car with force or threat of force, it is only right that you forfeit that privilege. The non-parole period that I have imposed will mean your earliest release date will be sometime in February 2027. I will cancel and disqualify your licence under s89A of the Sentencing Act for 12 months effective from 1 February 2027. Of course, it is not up to me whether you are released at the end of your non-parole period, that is up to the Adult Parole Board.

Section 6AAA

1. If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of four years with a non-parole period of three years and six months.
2. Mr Kilpatrick, do you understand the sentence I have imposed.
3. ACCUSED: Yes, Your Honour, thank you.
4. HER HONOUR: All right. Anything else.
5. MR O'DOHERTY: No, Your Honour, no.
6. MR DOGGER: Not from me, Your Honour.
7. HER HONOUR: Thank you, I'll leave the bench.

[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.

[2] I am required to take into account is the impact of your offending on your victims and their personal circumstances - Section 5(2)(daa), (da) and (db).