Director of Public Prosecutions v Krauklis
[2019] VCC 456
•9 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02369
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER KRAUKLIS |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2019 | |
DATE OF SENTENCE: | 9 April 2019 | |
CASE MAY BE CITED AS: | DPP v Krauklis | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 456 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Family violence related offending – assaults, criminal damage and illicit drug use by offender with pre-existing mental health issues – need for general deterrence – aggravated by breach of Family Violence Intervention Order and adjourned undertaking – early and remorseful guilty pleas – rehabilitation a significant sentencing principle – total effective sentence of 8 months’ imprisonment followed by 2 year Community Correction Order.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Joosten | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms E Ramsay | Victoria Legal Aid |
HER HONOUR:
1 Alexander Krauklis, you have pleaded guilty to two charges of criminal damage, each of which carries a maximum penalty of 10 years’ imprisonment; one charge contravening a Family Violence Intervention Order, which carries a maximum penalty of five years’ imprisonment; one charge of burglary, which carries a maximum penalty of 10 years’ imprisonment; and one charge of assaulting an emergency worker on duty, which carries a maximum penalty of five years’ imprisonment.
2 In addition, you have consented to the transfer of two summary offences to be heard in this Court, and pleaded guilty to those offences. They are Summary Offence 12, unlawful assault, which carries a maximum penalty of 15 penalty units or three months’ imprisonment; and Summary Charge 16, resisting police, which carries a maximum penalty of 60 penalty units or six months’ imprisonment.
3 All of your offending occurred on 5 September 2018 and is summarised in the Summary of Prosecution Opening (Exhibit “A”).
4 You had been residing in an apartment located at a block of flats in Heidelberg. There had been some complaints received by the property manager, Mr Scuderi, from other residents concerning events at the flats the previous evening and he wished to speak to you about them.
5 At approximately 9.40am, he went to your apartment, the door of which was open, and noticed broken glass on the floor. He called out to you and, upon not receiving a response, he entered to see if you were alright and found you in the bedroom. He stated that he wanted to speak to you and offered to come back in 15 minutes. You told him to “fuck off” and then got out of bed and began to push him in the throat towards the door and then spat in his face before walking away.
6 Mr Scuderi left your apartment and called 000. While he was on the phone, you came out of the apartment and tried to push him over the railing of the staircase, and then pushed him against the wall. This conduct comprises Summary Charge 12, unlawful assault.
7 A few minutes after the assault, you left your apartment carrying a wooden stick, and used it to strike a number of vehicles parked in the nearby car park, and actually caused the rear window of one vehicle to break. The vehicle belonged to Mr Scuderi. This conduct comprises Charge 1, criminal damage.
8 At 10.15am, you drove to your parents’ house in Bulleen. Your parents had taken out an Intervention Order against you at Heidelberg Magistrates’ Court on 30 October 2017. You were present in court and the conditions were explained to you. The order was still in place on 5 September 2018. You rang the intercom at the front fence, and your mother stated that she did not wish to speak with you and refused to get your father so you could speak with him. You continued to ring the intercom, and your mother went outside to disconnect it. As she did this, you jumped the fence and rushed towards the front door. Your mother tried to pull the door shut but you managed to enter the house. Your father came downstairs and the two of you went out into the street where you argued. You began verbally abusing your mother and then rushed at her. Your father tried to restrain you, but he fell to the ground, and your mother then called 000. You got back into your car and rammed the steel front gates of the house three times, causing the gate to come off its rollers and collide with your mother’s car, which was parked in the driveway. This conduct is part of Charge 3, criminal damage.
9 You got out of your car in an agitated state. By this stage, two police officers had arrived and you ran to the rear of the house. You picked up a chair from an outdoor setting and used it to smash the glass door at the back of the house. You entered the house and went into the garage, where you picked up a hammer. This conduct comprises Charge 4, burglary with intent to commit damage.
10 Using the hammer, you smashed two holes in the plasterboard of the hallway inside the house. This conduct, together with the smashed glass door, also forms part of Charge 3, criminal damage.
11 By attending your parents’ home on this day intending to cause them apprehension or fear and to damage property, you breached the Family Violence Intervention Order. This conduct comprises Charge 2.
12 You came out of the front door of the house holding the hammer, and charged at one of the police officers, Senior Constable Thorne, who had retreated to the front fence. Senior Constable Thorne directed you three times to put the hammer down, and you ultimately threw it at him from about 3 metres away, narrowly missing his knee. Senior Constable Thorne then grabbed you and pulled you to the ground. You attempted to gouge Senior Constable Thorne’s left eye, causing pain and a scratch below the eye. This is the conduct comprising Charge 5, assault of an emergency worker on duty.
13 Senior Constable Thorne tried to stop you gouging his eye by punching you to the face and then sprayed you with OC spray. Additional officers arrived at the scene and subdued you. However, 15 minutes after you had been handcuffed, you stood up and kicked Senior Constable Thorne to the left calf. Whilst being taken to the divisional van, you struck another police officer, Sergeant Morgan, to the neck and right shoulder and also spat on him. This conduct comprises Summary Charge 16, resisting police.
14 You are presently aged 24 years, having been born on 22 April 1994. You come before the Court with one prior court appearance. On 2 February 2018, you appeared before Ringwood Magistrates’ Court charged with contravening a Family Violence Intervention Order which had been taken out by your parents, criminal damage and making a threat to kill. Without conviction, the offences were adjourned to 1 February 2019 with a note that you were to continue to see Dr Alan Blandthorn, who was your treating psychiatrist.
15 You are the only child of your mother, Suzanne Krauklis, and your father, Eric Krauklis. Your mother has suffered from chronic depression both prior to your birth and afterwards, for which she is medicated. Your father, who is a former police officer, suffers from depression and Post-Traumatic Stress Disorder and is also medicated for these disorders. You, too, have suffered depression and, at age 18, you were diagnosed with Autism Spectrum Disorder (“ASD”) and were classified as having “high functioning Asperger’s Syndrome”. Over the years, you have been treated by your general practitioner, a psychologist and a couple of different psychiatrists. You completed Year 12 and then studied Japanese at RMIT for 12 months and holidayed in Japan during 2013. You returned to live in Melbourne in February 2014 and, for a time, carried out various unskilled work in order to save to return to Japan. You lived with your parents and there was a great deal of tension in the house. It appears this was related to you being financially dependent upon your parents and being reluctant to assist with any household chores. You were using cannabis (which you had commenced taking at age 18) and amphetamine (which you commenced taking at age nineteen).
16 In 2015 you travelled to Japan. You had been prescribed the medication, Lexapro, for depression but ceased it after you had been in Japan for one month. Your psychological state deteriorated and you began to drink alcohol to excess. You began to suffer auditory and visual hallucinations and were suffering paranoia and began self-harming by cutting yourself. Your mother had become increasingly concerned by your manner exhibited in phone conversations and ultimately travelled to Japan to bring you home.
17 Upon returning to Melbourne you saw two psychiatrists. The first commenced you on medication by way of Duloxetine and Olanzapine and the second increased the dosages. You began consulting Dr Alan Blandthorn, psychiatrist, for treatment on 21 October 2016. It would appear that he saw you with some regularity over the next year. Initially you were prescribed Duloxetine, 90 milligrams daily, and Olanzapine, 5 milligrams at night. By May 2017 you were free of depressive and psychotic symptoms, your weight was stable and you had ceased using alcohol at home and were seeking employment, so Dr Blandthorn reduced your dosage of Duloxetine to 60 milligrams daily, but continued the same dosage of Olanzapine. Unhappily, in September you ceased taking your medication and your mother reported to Dr Blandthorn that you had become lazy, selfish and narcissistic. Dr Blandthorn noted that you were more miserable and withdrawn and had lost weight. Tensions continued in the family home. Dr Blandthorn requested that you have some biochemical tests and an ECG and consider alternative medications but, unfortunately, you ceased to see him and your life went completely off the rails. Reports of Dr Blandthorn dated 24 October 2016, 24 May 2017 and 25 October 2017 were tendered as Exhibit ”7”.
18 Unfortunately, your cannabis use by age 20 had become heavy to the point where you smoking 7 grams a day, and although you reduced your formerly problematic alcohol consumption, you replaced this with use of amphetamine. By the date of offending you were consuming 1 gram of methamphetamine daily, as well as abusing prescription medication (Xanax and Codeine) and ecstasy. Your parents’ inability to cope with your behaviour resulted in them asking you to leave their home and taking out the previously mentioned intervention order on 30 October 2017. It appears that you were residing in a flat which your parents had found for you, but were living a feckless existence and abusing drugs on a daily basis with associates who were leading a similar useless and miserable lifestyle. It was in this context that your criminal offending occurred.
19 A report from Ms Carla Ferrari, consultant psychologist, dated 27 March 2019 was tendered as Exhibit “1”. She considered that you had an increased vulnerability to mental health issues as a result of social and emotional difficulties from childhood. She noted that you were ultimately diagnosed with Autism Spectrum Disorder at age eighteen. She stated that you continue to exhibit features consistent with Asperger’s Syndrome (high functioning Autism Spectrum Disorder). She considered that this increased your risk of unreasonable actions and subsequent criminal misconduct, and that your feelings of anxiety, depression and isolation may have led to you adopting ineffective coping mechanisms by substance abuse. She considered that, at the time of offending, you were suffering from an Amphetamine-type Use Disorder (specifically methamphetamine) and Cannabis Use Disorder. She considered that the severe nature of your methamphetamine abuse increased your risk of psychotic symptoms, anxiety, paranoia, hostility and aggression. However, she considered that it was difficult to establish whether distinctive clinical symptoms associated with either your ASD or depression were operational at the time of offending, as your illicit drug use could also impair judgment and rational decision making.
20 After being arrested by police, you were found unfit to be interviewed and were remanded in custody where you have remained to the present time. Whilst in custody, you have remained abstinent from illicit substances. Letters written to the Court by each of your long-suffering parents (Exhibit “2” and Exhibit “3” respectively) note the very substantial change for the better in your physical appearance, mood, communications and outlook on life, which have occurred during the time that you have been in custody. When first taken into custody, you were a gaunt, unhealthy-looking drug addict weighing approximately 60 kilograms. However, with exercise, a better diet, self-care and abstinence from drugs, you have now gained some 22 kilograms and are much healthier. You have apparently engaged in considerable reflection and self-examination and have realised that you were not a “nice person” and were immature and naïve, selfish and narcissistic. Your parents have visited you regularly in custody and state that you have been very remorseful and have apologised for all the grief that you have caused them over the last four years, and, particularly, for the events for which I must sentence you. They speak of seeing your decent, thoughtful character emerge again and, whilst they know that you have a long path of rehabilitation, they have indicated that they are prepared to have you back into their home once you are released from custody. You have indicated that you want to lead a drug-free lifestyle and are concerned to seek professional help to get back into mainstream life. You have stated that you are now willing to assist at home in a decent, loving and respectful way.
21 Ms Ferrari notes that you have expressed remorse and have used your time in prison to reflect on your behaviour and the impact that this has had upon your parents. She states that you have reached a level of insight, where you understand the wrongfulness of your actions and that your behaviour and substance abuse were out of control. She notes that both your Amphetamine-type Use Disorder and Cannabis Use Disorder are in remission, but that you will require strong social and professional support in order to continue along the road to recovery. Nevertheless, Ms Ferrari considered that there are number of positive factors in favour of your rehabilitation. These consist of you having abstained from illicit drugs whilst in custody. I here note that a report of urinalysis dated 8 February 2019, which shows that you tested negatively for illicit drugs, was tendered as Exhibit “5”. In addition, whilst on remand you undertook a number of courses. These related to drug abuse, a healthy balanced life and money management. Certificates in relation to those courses were tendered as Exhibit “4”. Further, Ms Ferrari noted that you had expressed a wish to continue rehabilitation and have the ongoing support of your parents and, also of some friends. I here note that both parents and two friends were in Court to support you at the plea hearing.
22 Mr Krauklis, although this Court acknowledges that you have had some very tough challenges in your life with depression and being diagnosed with Autism Spectrum Disorder, and have, at times, been suicidal. However, as I stated at the plea hearing, there appears to be little doubt that this offending was primarily related to your substance abuse. It is a measure of just how bad it had become that your parents needed to take out an intervention order against you in October 2017. This must be one of the saddest and most devastating things that a parent is ultimately driven to do in relation to a child whom they have nurtured and loved.
23 Unfortunately your violent, antisocial behaviour is very typical of what these courts see on a regular basis from drug abusers, particularly abusers of methamphetamine. It is a pernicious drug which is rapidly addictive and often hypes users up to a state of highly energised aggression where they lack empathy for fellow human beings. This is what your conduct involved on 5 September 2018. Whilst in the grip of regular cannabis and methamphetamine use and leading a self-indulgent, useless lifestyle with others who were doing the same, you behaved in an unpredictable, agitated and brutal fashion towards the property manager of the apartment where you had been staying. Although Mr Scuderi has not made a Victim Impact Statement, he was clearly sufficiently concerned to call “000”. He had done absolutely nothing to deserve your frightening assault upon him or the wanton act of criminality in smashing the window of his car.
24 You then went to your parents’ house and entered their house on a violent rampage. You not only breached the Family Violence Intervention Order but also the adjourned undertaking upon which you had been placed for the earlier breach of an Intervention Order, upon which you had been placed at Ringwood Magistrates’ Court only seven months beforehand. These are aggravating features of your offending. It is pitiful to think that your parents, at their age and stage of life and suffering their own psychological problems, should live in fear of their own son. You were in an uncontrollable rage this day and showed no respect for anyone or anything. You used your vehicle to ram through the steel gates into your parents’ property like something out of a horror movie and then proceeded to behave belligerently towards your parents and smash your way into their home. It is fortunate that police arrived and managed to get the situation under control, because the injury or damage that you may have inflicted with the hammer does not bear thinking about.
25 Police officers have a very tough job in dealing with agitated, irrational and violent behaviour like yours. It was more good luck than good management that you did not hit Senior Constable Thorne’s knee with the hammer and, then, he had to contend with you trying to gouge at his eye. It is a very serious thing to assault anyone, but where you have someone responding to an emergency like this, being attacked by you, it shows just how appallingly out of control you were. Even after you had been sprayed with capsicum spray and handcuffed, you still lashed out at Senior Constable Thorne by kicking him to the left leg and struck Sergeant Morgan to the neck and right shoulder. You also spat on Sergeant Morgan just as you had spat on Mr Scuderi. This is the sort of behaviour one expects from a wild animal, not from a civilised human being. Nobody should have to tolerate it.
26 In sentencing for these offences, the Court must denounce your conduct and place particular emphasis upon general deterrence. In particular, domestic violence is something which has reached alarming proportions in our community. A strong message must go out to those in the community who show no respect for their family, even when Intervention Orders are in place, that this conduct will not be tolerated and will be appropriately punished. There is also a need for some emphasis upon specific deterrence because you have breached an Intervention Order once before, although I consider that the need for emphasis upon specific deterrence now is considerably reduced after you have spent some seven months in custody and are now abstinent from illicit substances and have taken some steps towards rehabilitation.
27 Mr Krauklis, you are extremely fortunate that your parents have stuck by you. Many drug addicted persons who commit criminal offences come before this Court in a condition of total social isolation because their anti-social conduct has destroyed the bonds between them and their family and friends. Your parents’ letters to the Court leave me in no doubt about the dreadful toll of illicit drug taking, which effectively transformed you into a different person from the son they knew and loved. Fortunately, your abstinence whilst in custody has enabled you to reflect on your wasted, miserable and disrespectful life and to decide that you would like to do something about it. Your parents are very generous in being prepared to have you back home again when you are released from custody.
28 You are entitled to credit for your early pleas of guilty and I regard them as remorseful pleas. You are thus entitled to a high discount on the sentences which otherwise would have been imposed. It is also to your credit that you have managed to abstain from illicit drugs whilst in custody because, unfortunately, it seems that there is no end to the ingenuity of unscrupulous persons who still manage to traffick drugs within prisons. You have also indicated a willingness to engage in rehabilitative programs and to resume treatment with Dr Blandthorn. However, you need to be aware of your vulnerability. It is a common state of affairs that a person who needs mood stabilising medication can believe that he is well after a period of time on that medication and, then, against doctors’ advice take himself off such medication. I do understand that some mood stabilising medication can be unpleasant in that it causes weight gain and lack of energy and motivation. This is a very tough state of affairs and I do take into account that you have been dealt an unlucky hand in life with your particular condition of autism and Asperger’s syndrome. However, Dr Blandthorn was prepared to undertake some biochemical tests and an ECG to consider alternative medication. Unfortunately, you simply did not follow through with this. When you have a vulnerability which requires mood stabilising medication, the worst thing that you can do is take illicit drugs like cannabis and methamphetamine, which are known to be associated with psychosis. You need to be aware that with some people, once a psychosis has been triggered, it can be very, very difficult to control, especially if illicit drug use continues. You cannot afford to go anywhere near illicit drugs again. If you do so, I predict that you will, again, spiral out of control, commit further antisocial offences and be a menace to society and that your life will end up being a miserable and wasted one.
29 At this stage I consider that, given the attitude that you have indicated towards re-engaging with rehabilitative services for your mental health and substance abuse and given that you have had only one prior appearance before a court and have secure accommodation and support available from your parents, it is appropriate to give you a combination sentence by way of a term of imprisonment and a Community Correction Order. I consider that when not using illicit drugs, you have capabilities and the strength of character that can be built upon to enable you to turn your life around and to have a useful contributing and fulfilling existence. You clearly have some talent, especially in relation to the Japanese language, and it may be, with the appropriate support and motivation on your part, you can achieve some vocational goals which will enable you to work in fulfilling employment. I sincerely hope that you can do this.
30 I have received a report from Community Corrections dated 4 April 2019 which assesses you as suitable for a Community Correction Order. Although I had considered that judicial monitoring may be merited, the assessing officer considers that this is not necessary. However, it is appropriate to order conditions of supervision, as well as drug and alcohol and mental health rehabilitation and unpaid community work. Mr Krauklis, you need to be aware that I cannot make a Community Correction Order unless you agree to it. Are you prepared to do so?
31 In sentencing you, on Charges 2, 3 and 4, I take into account that the conduct of criminal damage and burglary took place as part of the same episode of conduct whereby the Family Violence Intervention Order was contravened. Thus, I propose to order only modest cumulation on these charges, even though each one of them is serious.
32 On Charge 1, criminal damage of Mr Scuderi’s vehicle, you are convicted and fined $200.
33 On Charge 2, contravention of a Family Violence Intervention Order, you are convicted and sentenced to be imprisoned for a period of 4 months.
34 On Charge 3, criminal damage at your parents’ house, you are convicted and sentenced to be imprisoned for a period of 4 months.
35 On Charge 4, burglary, you are convicted and sentenced to be imprisoned for a period of 5 months.
36 On Charge 5, assault on an emergency worker, you are convicted and sentenced to be imprisoned for a period of 4 months.
37 In arriving at the sentence which I intend to impose, I am mindful of the principles of totality.
38 The base sentence is that of 5 months imposed on Charge 4. I order that 1 month on each of Charges 2, 3 and 5 be served cumulatively upon the sentence imposed on Charge 4 and upon each other, making a total effective sentence of 8 months’ imprisonment. In addition, on these Charges 2, 3, 4 and 5, you are sentenced to undertake a Community Correction Order for a period of 2 years commencing upon your release from custody.
39 The terms of the Community Correction Order are as follows:
(a)You must not commit, whether in or outside Victoria, an offence punishable by imprisonment.
(ab)You must comply with any obligations or requirements prescribed by the regulations.
(b)You must report to and receive visits from the Secretary during the period of the order.
(c)You must report to the Community Corrections Centre specified in the order within 2 clear working days after the order coming into force.
(d)You must notify the Secretary of any change of address or employment within 2 clear working days after the change.
(e)You must not leave Victoria except with the permission either generally or in relation to a particular case of the Secretary.
(f)You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
40 In addition, I impose the following conditions in relation to the Community Correction Order:
(1)You must perform 150 hours of unpaid community work over the term of the order.
(2)You must be supervised, monitored and managed as directed by the Secretary.
(3)You must undergo assessment and treatment for drug abuse or dependency.
(4)You must undergo assessment for treatment for alcohol abuse or dependency.
(5)You must undergo mental health assessment and treatment which may include psychological or psychiatric treatment.
(6)You must undergo any other program to address your offending behaviour.
(7)You must undergo any other treatment or rehabilitation including employment, education, or personal development programs that are consistent with the purpose of the treatment and rehabilitation condition.
41 Do you understand these terms and conditions?
42 Do you agree to abide by an order with those terms and conditions for a period of 2 years after you are released from custody?
43 I declare a period of 216 days pre‑sentence detention to be reckoned as time already served under the sentences imposed this day.
44 Pursuant to s6AAA, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 2 years’ imprisonment with a non-parole period of 18 months.
45 On Summary Charge 12, assault of Mr Scuderi, you are convicted and fined $300.
46 On Summary Charge 16, resisting police, you are convicted and fined $300.
47 Mr Krauklis, you must understand that if you do not obey the terms and conditions of the Community Correction Order, then you will have contravened that order and that, in itself, is an offence punishable by 3 months’ imprisonment. In the event that you do not perform your obligations under this order, you will be brought back before me and the high likelihood is that the order will be cancelled and you will be sentenced to a further term of imprisonment.
48 Pursuant to s464ZF(2) of the Crimes Act 1958, you are to undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub Division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I regard this order as warranted by reason of the seriousness of the circumstances of the offending.
49 Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the property referred to in the schedule of this order, namely one wooden table leg, one steel hammer and one zip lock bag containing white powder. And I further direct that such property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings, where it may be tested and/or analysed and then destroyed.
50 Mr Krauklis, the forensic sample order involves you putting a cotton bud inside your cheek so that a sample of saliva is obtained. You need to be aware that if you do not cooperate with the making of the order, then police are entitled to use reasonable force to ensure that the forensic procedure is conducted.
51 Obviously you’ll be released from custody in a few weeks’ time, once the eight months sentence is up. You’ve already served 216 days, somewhat in excess of 7 months, so it should be about another 3 weeks that you have in custody. This Court sincerely wishes you well with your rehabilitation. I hope that you take advantage of this opportunity, because if you don’t and you are brought back before me, I will not show you any leniency. Do you understand that? I do wish you well.
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