Director of Public Prosecutions v Kregenbrink
[2019] VCC 2040
•19 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT HORSHAM
CRIMINAL JURISDICTIONCR 19-01168
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LILLY KREGENBRINK |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Horsham |
| DATE OF HEARING: | 19 November 2019 |
| DATE OF SENTENCE: | 19 November 2019 |
| CASE MAY BE CITED AS: | DPP v Kregenbrink |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2040 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Arson – possess drug of dependence
Legislation Cited: s. 76 Sentencing Act 1991
Cases Cited:Hatch v The Queen [2018] VSCA 196, Williams v The Queen [2018] VSCA 171.
Sentence:Total effective sentence of two years six months imprisonment with a non-parole period of 18 months imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Y. Hardjadibrata | Office of Public Prosecutions |
| For the Accused | Mr M. Reardon | Victoria Legal Aid |
HIS HONOUR:
1Lilly Kregenbrink, on 19 November 2019, that is today, you pleaded guilty to the following charges on Indictment J13211152:
Charge 1, arson. This charge has a maximum penalty of 15 years imprisonment.
Charge 2, possession of a drug of dependence, which was cannabis L. This charge has a maximum penalty of one year's imprisonment or 30 penalty units. The prosecution concedes your possession of cannabis was not for the purposes of trafficking.
Charge 3, possession of a drug of dependence, in this case it was methylamphetamine. The maximum penalty for that charge is five years' imprisonment or 400 penalty units. Again, the prosecution conceded you did not have that for the purposes of trafficking.
2Pursuant to s.145 of the Criminal Procedure Act, two related summary charges were also listed for hearing. You consented to the two charges being heard in this court and pleaded guilty to the following charges:
Summary Charge 7, possess an imitation firearm without a permit. That has a maximum penalty of two years' imprisonment or 240 penalty units; and
Summary Charge 8, possession of a controlled weapon without a permit. That has a maximum penalty of one year's imprisonment or 120 penalty units.
3It was requested by you and consented to by the prosecution that your plea hearing would be conducted by video link from Horsham County Court to where you are on remand at the Hopkins Correctional Facility. Your counsel,
Mr Reardon, was in court at Horsham.
Circumstances of your offending
4On 10 April 2015, you commenced leasing a unit located at 2/1-3 Ligar Street in Stawell through Monaghan’s Real Estate Agency. The unit was owned by Peter Armstrong.
5Throughout the evening of Sunday 9 December 2018, and into the next morning you removed some of your personal belongings from your unit and then you placed them on the footpath in the front of the unit with a handwritten sign reading 'Free'.
6On the morning of 11 December 2018, you attended at Monaghan’s Real Estate Agency and spoke to the property manager, Melanie Pitts. Ms Pitts observed that you appeared to be substance affected and were having trouble forming sentences. You told her that, ‘You would be going back to prison as that is where you needed to be’ and stated that you wanted to cancel your lease. You signed a 28-day cancellation notice and paid a total of $520 rent before leaving the agency.
7At 7.15 pm on that day you then left the unit and walked down southeast Ligar Street towards Scallan Street, wheeling a yellow homemade trolley. You approached the intersection and told some school children, 'Don't go down there kids, it's dangerous'. The children ran down Ligar Street and saw your unit 2/1-3 Ligar Street, was on fire. They contacted 000. That is the offence of arson. You had lit the fire at that address in Stawell.
8At about 8.30 pm, First Constable (“FC”) Jodee Nuske was undertaking watch house duties at the Stawell police station when he notified your presence in a court yard as a member of the public. FC Nuske approached the gate to the courthouse and recognised you. You were standing next to your homemade trolley. As the police approached you, FC Nuske asked you what had happened. You replied, 'Just lit my house on fire' and thought that someone had been through your things earlier on that morning.
9You indicated that you were not well and that you felt you were not receiving the assistance that you needed. During that conversation FC Nuske noticed that there was a machete at the bottom of your trolley, and removed the machete and offered to obtain a cup of coffee for you before taking the machete inside the police station. That forms the basis of Summary Charge 8, possess a controlled weapon.
10FC Nuske then returned to speak to you and advised you that he would need to place you under arrest. FC Nuske noted that you were calm and reasonable at that time. He asked you if you had anything else in your trolley that you should not have had and you disclosed to the police officer that you had all your weed in your suitcase. Another police officer arrived and spoke with you and FC Nuske searched your trolley.
11Located in your trolley were the following items:
(a) An imitation firearm, which in fact was a cap gun with an orange safety tip on it, that was Summary Charge 7;
(b) A white cotton bag containing 26 containers of green vegetable matter which is Charge 2, possession of a drug of dependence, cannabis ; and
(c) A small tin containing three Ziploc bags of white powder which you told the police was ice, and that formed the basis of Charge 3, possession of a drug of dependence, which was methylamphetamine.
12You were then escorted to the Stawell police station cells where FC Nuske placed you under arrest and seized the contents of your trolley. A short time later you became distressed and expressed suicidal ideation. You were then subsequently transported to Stawell Hospital where you underwent a psychological assessment.
13You were then returned to police custody in the early hours of 12 December 2018, and conveyed to the Stawell police station, where a record of interview was attempted but terminated a short time later and you were then remanded in custody.
14A forensic examination of the burnt-out unit revealed a single area of origin in the centre of the lounge room at the end of the couch in the unit. Ignition was thought to be by a match or a cigarette lighter. The total damage caused by the fire was $223,321.51. You also lost property in the fire, including family photographs, musical instruments of yours and personal papers.
15This matter resolved to a plea of guilty on 18 June 2019, six days after the committal hearing. From the time of your arrest to your plea hearing you have served a total of 342 days of pre-sentence detention, not including today.
Your personal circumstances
16At the time of the offending you were 38 years old, you are now 39. You have been diagnosed with gender dysphoria and are transitioning from male to female. You have been treated by the Monash Gender Clinic. You have been receiving treatment for gender dysphoria since approximately 2013. You are prescribed Premarin, a hormonal medication, and you take that medication.
17You were born in Wondai, which is regional Queensland. Your parents separated when you were three years old after you had been assaulted by your father. Your older sister was killed in a car accident when she was 13 years old. You have an older half-brother who lives in Yaapeet. You have a younger brother who lives in Queensland. You are estranged from that younger brother since the beginning of your transitioning from male to female.
18You completed your formal education to Year 9. You describe yourself as a slow learner. After school you mainly worked as a deckhand on prawn trawlers in Queensland. In 2005, you gave up your work as a deckhand to become the carer for your grandfather. You remained as your grandfather's carer until his death in 2010, a period of some five years. You have had limited employment since that time.
19You have two children, a son aged 13 and a daughter aged nine. They have different mothers. You still have contact with the mother of your daughter and intermittent contact with your son and his mother.
20You moved to Victoria from Queensland in 2015. You moved to Horsham initially and lived with your mother and stepfather. You then moved to Stawell and the unit where the offending occurred some four years later.
21Whilst in custody you are engaged in a cleaning role, but due to your personal safety you had to give up that job. You have undertaken courses in cleaning, Take Stock program, the Adapt program and Learning For Life program whilst in custody. You have a clear, as in a negative result to a urine test for drugs. Due to the harassment from other prisoners you were withdrawn from your billet position and now largely spend most of your time in your own single cell.
22You have been assessed by Dr Nicholas Owens, a consultant psychiatrist, for the purpose of this plea. He prepared two reports dated 29 April 2019 and 12 September 2019. You have stated to Dr Owens that you have no recollection of starting the fire the subject of the arson charge. You told him you are pleading guilty to the charge because that will lead to your earliest release from prison. Dr Owens diagnosed you as suffering from an adjustment disorder with anxiety and depression. Dr Owens' opinion is that at the time of the offending you were suffering stimulant-induced psychosis. Dr Owens' opinion is that you fulfil the criteria for transsexualism, you are receiving the appropriate treatment for your gender dysphoria.
23I accept due to your transition to female and the reaction, harassment and threatening behaviour towards you by other prisoners that that will make your time in custody more difficult than other prisoners in a male prison. In his first report Dr Owens states as follows:
'Owing to Ms Kregenbrink's gender dysphoria as well as ongoing symptoms of psychosis, I think that a term of imprisonment would likely weigh more heavily on her than on someone without these problems.
Ms Kregenbrink appears to be interested in the involvement in educational and/or therapeutic activities judging by her report of having participated in some of these already while she has been in prison. This seems to be a good prognostic sign for her willingness to be involved in rehabilitative activities as a prisoner'.
24On your report to Dr Owens, you have a long-term history of cannabis and methylamphetamine use. You have had negative urine tests, as I stated, whilst you have been in the protective environment of a prison.
Sentencing Considerations
25The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.
26I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
27I am also required to take into account current sentencing practices in fixing your sentence. That inquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for the sentences at the time. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.
28The learned prosecutor referred me to the case of Hatch v The Queen [2018] VSCA 196. In that case the Court of Appeal approved a term of imprisonment combined with a five-year community corrections order as an appropriate sentence for the charge of arson.
29The prosecutor also referred me to the case of Williams v The Queen [2018] VSCA 171 which is the authority for the calculation of time in respect of time served and its effect on s.44(1) of the Sentencing Act. I do not in this case find that a community corrections order is an appropriate disposition or part of a disposition for your sentence.
30You have pleaded guilty to this charge. Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community.
31Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your part.
32Whilst I note you take responsibility for the charge of arson by your plea of guilty, you still maintain to Dr Owens that you have no recollection of lighting the fire. You have not been explicit in any statements of remorse and I find it is limited to your plea of guilty.
33You have a limited criminal history in Victoria. You have two separate court appearances in Stawell Magistrates' Court for traffic-related offending. I note in the first report prepared by Dr Owens that you told him that in the year 2000 you received a partly suspended gaol term for violence and property offences at Toowoomba District Court. In 2001, you were sentenced to imprisonment for acquisitive offending, as it was described, at Ipswich District Court. Between 1997 and 2014 you had court appearances for drug-related offending.
34I assess your prospects of rehabilitation as guarded due to your admitted long-term use of cannabis and methylamphetamine. You have had other court appearances in the past for violence and dishonesty. The charge of arson is the most serious in this indictment. The factors that indicate the seriousness of this offence are as follows.
(1) the fire destroyed the home in which you lived;
(2) the fire caused damage to the extent of $223,321.51;
(3) that the fire by its nature is not a discrete and confined offence;
(4) there is no motive or explanation for your offending;
(5) there is no suggestion of personal gain by you as a result of this fire; and
(6) it was just a wanton act of destruction.
35The drug possession charges are consistent with the observation of Ms Pitts at the real estate agency and of police officer Nuske when you effectively turned yourself into the police for the arson offence. The amounts of the drugs are small and not for the purpose of trafficking. Your sentences for the drug offences will be concurrent with the sentence for the arson charge. The charge of the possession of the cap gun, which was obviously a toy, will be dismissed pursuant to s.76 of the Sentencing Act. The charge of the possession of the machete is without the circumstances of threats and assaults which ordinarily accompanies such charges.
36I take into account your time in custody will be more difficult and possibly have an adverse effect on your mental health as a result of other prisoners' reactions to your gender dysphoria and your treatment for it. This is supported by the opinion of Dr Owens and his diagnosis of your adjustment disorder.
37Your counsel appropriately conceded that your mental health status did not reach the requisite standard to substantiate a reduction in your moral culpability nor the weight to be given to general and specific deterrence in this sentencing process.
38Arson is a very serious crime. A person convicted of arson can expect to receive a significant term of imprisonment which is to be served immediately. General deterrence looms large as a sentencing consideration.
39Taking into account the matters particular to you and the sentencing considerations of general and specific deterrence, protection of the community and denunciation of your offending, the only just sentence is a term of imprisonment with a fixed non-parole period.
40I sentence you as follows:
41In respect of Charge 1, the arson charge, you are convicted and sentenced to two years and six months' imprisonment. That is the base sentence.
42In respect to Charge 2, which is possess cannabis, you are convicted and sentenced to seven days.
43In respect of Charge 3, possession of amphetamines, you are convicted and sentenced to 14 days' imprisonment.
44In respect of Summary Charge 7, which is the cap gun, that charge is proved and dismissed pursuant to s.76 of the Sentencing Act.
45On Charge 8, that is possession of the machete, you are convicted and sentenced to seven days' imprisonment.
46That is a total effective sentence of two years and six months. I fix a non-parole period of 18 months' imprisonment and I declare that you have served 342 days pre-sentence detention not including this day.
47Pursuant to s.6AAA but for your plea of guilty, which I find is significant in this case, you would have been sentenced to four years' imprisonment with a non-parole period of two years and nine months and I have signed the disposal order.
48Is everything attended to?
49MR REARDON: Yes, Your Honour. May it please the court.
50MR HARDJADIBRATA: Yes, Your Honour.
51HIS HONOUR: Thank you. Do you understand what that sentence amounts to, Ms Kregenbrink?
52OFFENDER: Not quite.
53HIS HONOUR: All right. I will leave the link open for Mr Reardon so he can speak to you when I am not here in the courtroom, just in a minute. I will adjourn and I will leave the link open so you can talk with him directly, all right?
54OFFENDER: Yes, Your Honour.
55HIS HONOUR: But the sentence is this. The top of the sentence is two years and six months, the non-parole period is 18 months, and you have served 342 days of that sentence.
56OFFENDER: Yes, Your Honour. Thank you very much, Your Honour.
57HIS HONOUR: Good luck in the future with your treatment and everything else when you get out.
58OFFENDER: Yes, Your Honour. Feeling very lonely here.
59HIS HONOUR: I will adjourn now but I will leave the link open.
---
0
2
0