Director of Public Prosecutions v Krause (a Pseudonym)

[2022] VCC 559

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON KRAUSE (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne (Plea)
DATE OF HEARING:	21 April 2022
DATE OF SENTENCE:	27 April 2022
CASE MAY BE CITED AS:	DPP v Krause (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 559

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti (Plea) Ms N. Burnett (Sentence)	Office of Public Prosecutions
For the Accused	Mr J. Miller	SP Lawyers

HIS HONOUR

1After a short trial in the Latrobe Valley and with a COVID-related reduced jury of 10 persons, Simon Krause[1], on 22 February 2022 you were found guilty of three charges of sexual penetration of a child under the age of 16 under your care, supervision or authority.  The maximum penalty is 15 years' imprisonment.

[1] A pseudonym.

2You faced a nine count presentment arising out of four separate incidents.  In the first incident you faced a charge of indecent act with a child under 16, and a charge of lingual penetration of a child under the age of 10, and an alternative charge of lingual penetration of a child under the age of 16.  You were found not guilty of these Charges numbered 1 – 3.

3The balance of the indictment involved three incidents of sexual penetration.  In relation to each of the incidents you were acquitted of the charge of sexual penetration of a child under the age of 10, (Charges 4, 6 and 8.)  You were found guilty of the alternative charge of sexual penetration of a child under the age of 16 – Charges 5, 7 and 9.  Each of the three charges of which you found guilty are alleged to have occurred between 21 March 2008 and 1 January 2010 when the complainant was aged between 10 and 11.

4The second incident was a charge of oral penetration – Charge 5.

5The third incident was a charge of digital penetration – Charge 7.

6The fourth incident was a charge of penile penetration – Charge 9.

7I am required to sentence you consistently with the jury verdict.

Circumstances of the offences  

8The offending occurred in the regional city of Traralgon.  You were born in 1959 and are now aged 63.  The offending occurred when you were aged between 49 and 50.  The complainant was born in 1998.  You are her step grandfather.  You were and remain married to the grandmother of the complainant.  She had two sons from a previous marriage. Your wife's son (one of the sons) was the father of the complainant.  He separated from the complainant's mother, soon after her birth.  The complainant lived with her mother and her new partner in Warrnambool.

9There were arrangements made for the complainant to stay with her grandparents during the school holidays.  These commenced when she was about eight or nine.  Her father would have the opportunity to have access visits to her while she was there.

10The arrangement involved the complainant's mother, or her partner, taking her to a suburb of Geelong where you or her father would arrange to pick her up and take her back to Traralgon for the relevant school holidays.

11At the time you were operating a picture small business.  Your wife was also working at the same premises.

12The events giving rise to Charges 1 – 3 of which you were acquitted were that the complainant alleged that while she was assisting you at the shop you had shown her a pornographic video game on the computer.  You had then sat her on the bench, removed her underwear and proceeded to lingually penetrate her.  You were acquitted of those charges.  The complainant said she was aged about 10 at the time and in Grade 4 and had been staying in Traralgon and going to school there temporarily as her mother and other family members had gone on a cruise.  She also gave evidence that a day or two after this event you gave her a ring and told her that she was a good girl and not to tell anybody.

13The other three occasions giving rise to the charges upon which you were convicted were alleged to have occurred at the family home in Traralgon.  You and your wife were living there, as was your son and his partner at that time.

14It was the prosecution case that you had shown a sexual interest in the complainant and the prosecution had filed a tendency notice in support of this.  The complainant gave evidence that one occasion she was in the shower, and you came in and proceeded to watch her shower.  On another occasion she was in bed naked with you.  Another event the prosecution alleged as showing a sexual interest was the complainant's account that when she was in the shower you had entered the room, locked the door and proceeded to show her how to shave her legs and private parts, when she was an age where this was not required.

15When the complainant stayed at your house, she had her own bedroom.

16The event giving rise to the conviction on Charge 5 was that the complainant was in her bedroom, and you had come in and proceeded to teach her how to give you oral sex.  You were sitting on the side of the bed, pulled your pants down and let her face down to your private parts and proceeded to teach her how to give you pleasure by having her suck your penis.  You were sitting in front of her and grabbed her head and guided it towards your penis and proceeded to continually release and put pressure on her head to make it go up and down.  On her account this went for about 15 minutes.  She said she was 10 or 11 when this occurred, and it was about the same time of the incident of shaving in the shower.

17Charge 7 concerns an incident where the complainant was laying in bed.  You had come into the bedroom and removed her pants and then proceeded to put your fingers into her vagina and played with her clitoris.  She said the event occurred at 9 PM at which time your wife, who went to bed early, was in bed. She was aged 10 and the time.

18Charges 9 concerns an event when the complainant was in bed.  She was not clothed on the bottom half.  You entered the bedroom.  You also were not clothed on the bottom half.  You got into bed with her then you proceeded to attempt to place your penis inside her vagina.  She remembers that you had got it in, and you could not proceed because she was screamed.  She had blood on her underwear the next day.  She said she was about 11 and prepubescent at the time.

19Part of the Crown case was that you also sought to ingratiate yourself with the complainant by the giving of gifts to her.  She gave evidence that a day or two after the event in the shop you had given her a ring.  A photo of the ring was in evidence.  Further she also said you had given her gifts of clothing procured from Big W, and also name brand clothing.

20The complainant's mother gave evidence that the complainant returned from holidays with brand-name clothing and expensive gifts including jewellery that became more expensive as time went on.

21The complainant's visits to Traralgon ceased after an event in July 2009 when the complainant would have been around 11 years and four months old.  When the complainant returned to Warrnambool after school holidays in Traralgon, she proceeded to abscond from the family home, and boarded a train at Warrnambool heading for Melbourne.  She was intercepted by police on the journey and found to be in possession of a mobile phone and some money and said that she was to be picked up by you at Spencer Street station.  The complainant gave evidence that as a child she was convinced that her mother was not pleasant, and she wanted to be with you and her father Benjamin[2].

[2] A pseudonym.

22The complainant's mother gave evidence that she knew nothing about any plan for the complainant to return to Traralgon.

Events subsequent to the offending.

23When the complainant was in Year 8, she told the schoolfriend about what had occurred.  She told her father that something had occurred in around 2015.  She went to the local police station but declined to make a formal statement.  Subsequently she told her mother around the time of her 18th birthday and then proceeded to make a police statement on 29 November 2016.

24You were interviewed by the police on 23 March 2017 and charged.  You participated in a record of interview in which you strongly denied any sexual interest or any inappropriate sexual conduct with the complainant.  You did not give evidence at the trial.  The matter was the subject of a contested committal on 13 August 2018, and you were committed for trial.  Due to the COVID disruption the matter was not reached for trial until 14 February 2022 and you are found guilty on 22 February 2022.

Victim impact statement

25The complainant filed a victim impact statement.  In the statement she indicates that from the age of 12 she struggled to be able to lead a normal teenage life in relation to study, concentration, friendships and trust.  She would argue with her mother and stepfather and teachers over discipline and rules and run away from home.  She was also into self-harm and had an eating disorder.  She had difficulty in relationships and anger issues, depression and anxiety.  She finds that no one understands her, and she has no passion or drive for what she is doing.  She finds it difficult to work in customer service roles and has had problems managing her money, causing credit issues.  When she was 15, she was admitted to a psychiatric unit for an attempted overdose.  She finds it difficult to connect with counsellors, psychologists, friends and family, and her mental health still remains unstable.  She concludes saying, 'I'm hoping for a future of some kind but right now I am existing not living.'

26The complainant's victim impact statement is a powerful testament to the harm that arises from the premature sexualisation of children.  There is a presumption of harm, and that harm is confirmed by her own statement.

27The impact on the complainant is a matter that must be taken into account in sentencing and is relevant to the seriousness of your offending here.

Seriousness of the offences

28The three charges upon which you have been convicted are serious when considered separately and as a course of conduct.  The complainant was prepubescent and aged 10 or 11.  Her age, and the age differential between the two of you are both aggravating features.

29You were in a position of trust as her mother had entrusted her to you during the school holidays as she was on the other side of the state.  You had ingratiated yourself to the complainant by the provision of various gifts.  You were thus in a position to exercise some psychological influence over her.  This is evidenced by the fact that she sought, with your assistance, to run away from home in Warrnambool back to Traralgon.  You had provided her with a phone and money to facilitate this.

30In submissions your counsel submitted that your acquittal on Charges 1 – 3 meant that the jury must have rejected her account, of being given the ring as some form of bribe.

31I am unable to accept that submission.  It was undisputed that you had been provided her with various items of jewellery and clothing.  The learned prosecutor submitted that the provision of various gifts showed that you were exercising psychological influence over the complainant, and I agree.

32Your counsel submitted that the various gifts were innocent expressions of grandparent affection and thus did not take the question of your moral culpability any further.  I reject this as the depth of your psychological influence can be seen from the fact that she was prepared to run away from her home without any reference to her mother.  Further, the offending encompassed three separate incidents.

33Your offending was a grave breach of trust, and this is an aggravating factor.  Sexual contact with a child is akin to a crime of violence.  You exerted some force in relation to the event giving rise to Charge 5.  There was pain and a scream in your attempt to sexually penetrate the complainant in Charge 9.  You are only to be sentenced for the three discrete acts of penetration and not for the conduct relied upon by the prosecution in its tendency notice.  The other contextual evidence and the tendency evidence is relevant however to an assessment of your moral culpability for the offences which I regard as high.

34I turn now to matters personal to you.

35You have admitted prior appearances in the Magistrates' Court in 1979 for trespass where you were fined.  Further, in October 2012 for damaging property, the matter was adjourned without conviction.

36I regard these prior matters as not having any relevance for sentencing purposes.  Further, you led significant evidence as to your good character, and there was a good character direction given, and I will refer to that in due course.

Personal circumstances

37You are now aged 63.  Your personal circumstances are set out in your defence plea submission which I incorporate by reference.  You were born in Vienna, Austria as an only child.  Your mother was a seamstress and father a truck driver.  The family migrated to Australia in 1960 speaking little English and Anglicised their name.  The family moved around before settling in Victoria and you were sent home from kindergarten at age four as you did not have enough English to get by.  Your mother was forced to pick up English and obtained employment as head seamstress in a fashion house.  Your parents separated when you were seven and you and your mother moved into a flat in St Kilda with virtually nothing.  You helped out as best you could.  She suffered health problems.  You went to school in St Kilda and then Prahran Tech studying electrical, wood, and mechanical work.  You left school young but got a job at GMH with your school skills.  Your mother's health problems lifted, and you returned to study and matriculated at age 17.

38Your father returned to your life at age 17 and persuaded you on the promise of money to join him in operating a general store in Ararat.  While in Ararat you married your first wife at age 18.  There were no children.  You were driving a truck to Melbourne to obtain produce and doing everything in the store except bookkeeping.  Your father did not deliver on his promise to put away money for you and disappeared with the money, the car and his new wife.  You then moved back to Melbourne with your mother.  She had had another heart attack.

39You bought your first house in Oakleigh to look after her and divorced your first wife and started driving interstate trucks and doing furniture removals.  Your mother had another heart attack and required major surgery.  In your early 20's you suffered a knee injury at work, it forced you off work for six months and resulting in continual chronic pain.  He then worked in other occupations including as a handyman, as manager of a bumper bar manufacturer, and also you obtained a security license.

40At that point you met your current spouse and married in 1989.  You left your mother in Oakleigh and you then purchased with your spouse a business.  The business failed and you lost the business as well as the house.  You worked hard in other jobs and eventually moved to the Latrobe Valley in 1995.  You worked in service stations and also at the secondary College in the integration department.  In 1997 you opened a small business in Traralgon.  You bought a café in Orbost in 2009 but as the takings had been misrepresented this was sold after a year.

41Your small business was the subject of a fire in 2013.  By the time the insurance payout occurred a competing business had been established and you did not re-establish that business.

42In 2015 you along with a couple of others assisted in setting up a children's academy of modelmaking.  You assisted your co-founders in teaching children card modelmaking.  The feedback from teachers and students was excellent.  After you were charged you lost your working with children certificate and could no longer take part.

Your health problems

43In 2017 at the age 58 you had a number of heart attacks requiring major surgery; you have been unable to work since then.  You have been on a disability pension although you took some time to accept that you are suffering a significant disability.  Your son provided a reference as to the support he has providing you given your various conditions.

44On the plea your counsel tended a medical report from your general practitioner indicating that you have a number of severe medical conditions and are on multiple medications.  You have heart disease, arthritis, fibromyalgia, chronic pain, morbid obesity, insomnia, anxiety and stress.  Your conditions were described as relatively stable but could deteriorate without regular reviews.  The medical material has been provided to the authorities.

45On the plea a report from the Latrobe Valley Community Mental Health Service indicates that you told them that you believed that you had a life expectancy of five to six years.  The medical basis for this opinion was not elaborated.  You clearly have significant health conditions which in all likelihood will compromise your life expectancy, but on the material before me I am unable to determine your current life expectancy.  I am, however, mindful in sentencing you that any sentence should not be crushing.

46It is clear from the medical reports, however, that imprisonment will be a significant burden upon you at your age and with the various medical conditions you have.  I take that into account in mitigation.

47At the trial and on the plea your counsel led evidence as to your good character and tendered a number of written references.  Evidence was led from two witnesses who have known you for many years and supported you at the trial and in the plea hearing.  They testify to your high regard in the community, and your contributions to your family and local community.  Your son also gave evidence as to your character, provided a reference as to the support you provide to your wife and to the community and your general character.

48On the plea your wife of 33 years filed a letter in support testifying to your strong support for her as a husband and as a family man.  She has supported you throughout the proceedings but due to ill health was unable to be present on the plea.

49It is clear that a term of imprisonment will be more onerous in circumstances where you are unable to provide psychological and physical support for your ailing spouse.

50Also on the plea that are other written references from family members, and I take them into account in your favour.

Delay

51On the plea your counsel emphasised the delay in this matter.  It is now just over five years since you were interviewed and charged.  You have thus had this matter hanging over your head for that period.  There are always delays in the criminal justice system, particularly in circuit matters, however, this period is substantially longer than usual, and has clearly been lengthened by the pandemic and the resultant suspension of jury trials.

52As a matter of fairness, I must take this delay into account in your favour.  It has clearly impacted on you.  As I indicated, in evidence was a report from a mental health nurse indicating that earlier this month you attended the Latrobe Valley Community Mental Health Service suffering from anxiety.

53The delay is also relevant in that the informant gave evidence that you have no matters outstanding against you.  Your prior good character and lack of offending since you were charged indicates that, notwithstanding your plea of not guilty to the charges, your prospects of rehabilitation are good.  Considerations of specific deterrence in the circumstances of your age, the circumstances of the offending, the delay, and the lack of subsequent offending are therefore less salient here.

Sentencing submissions

54Your counsel accepted that a term of imprisonment was the only appropriate sentence.  He submitted, however, that any term should not be crushing.  He emphasised the delay and the effect on your mental health of this delay and having the matter hanging over your head.  He also submitted that there was a low risk of reoffending.  He submitted that the COVID pandemic would make imprisonment more burdensome.

55The prosecution did not dispute these matters, and I take them into account in your favour.  The extent to which COVID might affect imprisonment in the future is uncertain, but I am prepared to accept that it is likely to cause further issues for people in custody for the next indefinite period.

56The learned prosecutor, however, emphasised the aggravating features of your offending including the age of the complainant and that this was a serious breach of trust.  The learned prosecutor also referred the court to the case of Tones[3] which referred to the different ways in which delay is to be considered.  There are two aspects here.  There is the delay in that the case has hung over your head for some five years.  I take that into account as I have indicated.  In addition, there is the fact that you have not committed any further offending. This also is to be taken into account.  There is, however, no remorse in the matter, insight or reformation.  These are not aggravating features in the sentencing synthesis, and you are not to be additionally punished for taking the matter to trial.

[3]Tones v The Queen [2017] VSCA 118

57Further, you are to be sentenced as a serious sex offender in relation to the third count, with a presumption of cumulation.  The prosecution, however, did not seek a disproportionate sentence.

58Both counsel referred to a number of cases that may illustrate the current sentencing practices for this offence.[4]  I have considered each of the cases and do not find it necessary to refer to them in any detail.  The Court of Appeal has noted in the recent case of Howard[5] that any sentence is not a precedent, and that all cases differ in relation to the circumstances of the offence, the age and impact on the complainant, whether there is a plea of guilty and the circumstances of the offender.  The Court of Appeal has also emphasised the presumptive harm on child complainants as a result of intra-familial sexual abuse.  Denunciation is an important sentencing consideration.

[4]Smith v R [2018] VSCA 258; Deacon (a pseudonym) v R [2018] VSCA 257; Robbins (a pseudonym) v R [2017] VSCA 288; Simmons (a pseudonym) v R [2015] VSCA 339; DeSilva v R [2015] VSCA 290; O'Brien v R [2014] VSCA 94; CMG v R [2013] VSCA 243; PCR v R [2013] VSCA 224;

[5]DPP v Howard (a pseudonym) [2021] VSCA 298

59The offence carries a maximum sentence of 15 years' imprisonment which in itself indicates the seriousness with which Parliament regards this offence.

Purposes of sentencing

60The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

61Here, it is clear that your offending has had a major impact on the complainant.  I have found that there is a high degree of moral culpability involved.  The complainant was a prepubescent 10 or 11 year old girl.  Your conduct involved a gross violation of trust.  In sentencing, considerations of general deterrence and denunciation are very important.  The sentence of the court must vindicate societal values which include the protection of children and the denunciation of those who breach the trust of those entrusted to them.

62Weighed against those matters must be all the matters put by your counsel, including the delay, your prior good character, your medical conditions, your age, the burden of imprisonment during the COVID pandemic, and the burden on you where you are not in a position to care for your wife.

63Weighing these competing considerations is not without difficulty.  Could you please stand.

Sentence

64The sentence of the court is as follows.

65On Charge 5 you are sentenced to 5 years' imprisonment.

66On Charge 7 you are sentenced to 5 years' imprisonment.

67On Charge 9 you are sentenced to 5 years' imprisonment.

68I direct that Charge 5 is the base sentence.  I order that nine months of the sentences on Charges 7 and 9 be served cumulatively on the sentence on Charge 5 and on each other, making a total effective sentence of 6 and a half years' imprisonment.

69I direct that you serve a period of 4 years before being eligible for parole.

70I declare six days presentence detention not including today.

71I declare that I have sentenced you as a serious sexual offender on Charge 9 and order that it be entered in the records.

72Consequent on your convictions for these offences you are to be placed upon the Sex Offender Register.  The reporting period is life.  The relevant paperwork will be forwarded to you at the prison, and I would ask Mr Miller after I leave the Bench, if he could just explain the reporting obligations associated to you.  You will be required to sign the paperwork when it is provided to the prison.  Are there any other matters, Ms Burnett?

73MS BURNETT:  Your Honour, just in terms of the Serious Sexual Offender provisions, it should be on the second and third charge, is my understanding.

74HIS HONOUR:  Well, I clarified that with Ms Pezzimenti, and she indicated that it was only the third charge.

75MS BURNETT:  I will withdraw that, thank you, Your Honour.

76HIS HONOUR:  I want to thank Mr Miller for his assistance in the plea and the trial, and the witnesses who gave evidence, Ms Pezzimenti in prosecuting the trial, and Ms Burnett today.  Adjourn the court temporarily, and I will leave the link open, and we will have the sex offender paperwork forwarded.

77MR MILLER:  As Your Honour pleases.

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