Director of Public Prosecutions v Krelle

[2014] VCC 2250

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR -14-01697
CR-14-01698

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH PATRICK KRELLE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	13 November 2014
DATE OF SENTENCE:	1 December 2014
CASE MAY BE CITED AS:	DPP v Krelle
MEDIUM NEUTRAL CITATION:	[2014] VCC 2250

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R.M. Maxwell	Office of Public Prosecutions
For the Offender	MrJ.R.V. Kelly	Robert Stary Lawyers

HIS HONOUR: 

1Joseph Krelle, you have pleaded guilty to two charges of recklessly causing serious injury and now comes the time for you to be sentenced.

2The task here for me is further evidence of what all judges know, and what our Chief Justice has said more than once.  Sentencing is the most difficult job judges have, and the one that causes at times the most controversy.

3What cannot be escaped is the universal application of what was said in the highest court in the United States in recent times, where the court said, "It has been uniform and constant in the Federal Judicial tradition for the sentencing judge to consider every convicted person as an individual, and every case as a unique study in the human failings that sometimes mitigate and sometimes magnify the crime and the punishment to ensure."

4The crimes you committed were, on any measure, serious, violent attacks.  However, your compelling personal circumstances cannot simply be given lip service because your crimes were so serious.

5I must ensure what is mitigatory in your case is not overwhelmed because of the gravity of the offences.  I have been particularly assisted in understanding your crimes through the evidence of your mother and the expert reports that were tendered on your behalf.

6You are the first born of six children.  Your mother and father in addition to raising you and your siblings, work prospectively as a teacher and a vet in a small country town.  It became clear early on that your childhood development was impaired.  I need not detail all of the difficulties that confronted you and your parents by reason of your small country town and school being ill-equipped to help you and your parents, but things were not easy.

7While all your siblings excelled, ultimately securing places in tertiary studies in the field of medicine, engineering, business and the like; you struggled to get through ordinary schooling, requiring  special assistance throughout. 

8Your capacity to get on with others was also a problem and saw you subjected to serious bullying.  You were different, but not diagnosed with Asperger's Syndrome until you were about 11.

9You had obsessive characteristics.  Your obsession with the Geelong Football Club was innocent enough.  Your other obsession of drinking first Coca Cola and then when you turned 18, alcohol was the beginning of your downfall.

10To your credit, after school you worked in a nursery and a local horse racing stable, but things deteriorated because of alcohol.

11Your parents, it seems, moved to Melbourne to support your siblings at university.  They decided your independence was best supported by setting you up in your own accommodation in the smaller town, of Geelong.  Before that you had struggled in rental and shared accommodation.

12Ultimately, it was thought that if you had your own place and kept your drinking to your own home, you might be safe, and thereby keep out of trouble.  You had no insight into your drinking problem as you descended into alcoholism, regularly drinking yourself into oblivion and then getting up the next day with alcoholic cravings and commencing the dreadful cycle again.

13In this context of drinking a cask of wine a day, you came across another older man in Geelong who was also an alcoholic.  You commenced the sad pattern of drinking together, often at your place.  He would visit you and you would drink there with him.

14This occurred on 14 September 2013.  You were doing what you loved to do, watching football.  He for some reason, said to you that he was going to strangle you.  You saw red and flew into a rage.  You wanted him out of your house and you assaulted him inside and more severely outside, kicking him to the head and striking him with a broom handle.  Your attack was fierce and the injuries serious.  I will detail them shortly.

15Neighbours called the police and when the police arrived, you said the victim had fallen off his bike.  He was quickly found moaning and bleeding in the next-door neighbour's garden.  Police observed blood on your shoes.  You then confessed to having assaulted the victim.

16You made more detailed, frank admissions, in a police interview, describing your kicks as being very forceful, especially the last one.

17There were aspects of your interview that touched on remorse, but, as is clear from the expert reports concerning your problems, remorse is a complicated matter for you.  I will return to it shortly.

18As stated the injuries that the victim sustained were serious.  They were as follows.

19He had bruising and swelling to his right eye, multiple bruisings to both arms, grazes to his shin.  He had subdural and subarachnoid haemorrhage, that is bleeding under the skull.  He had fractures to the left and right bones of his cheek and a fracture in one of the bones of his forearm.  He also had vertebral fractures in his thoracic spine.

20You were, after the interview, charged, and then put on bail.  You said emphatically that you did not want the victim to come around again, and that was the situation for some months.  However, it was the victim who came back to your house on 7 February 2014, looking for a drink.  Unfortunately, you took up drinking with him.

21You and he started at about 5 pm and continued on into the early hours of the morning.  Each of you, you said, had drunk a cask of wine.  The victim vomited in your house and on your doorway.  You, again, lost your temper and attacked the victim, hitting him multiple times with a hefty shovel.  You threw a bin down on him, hard.  The attack was ferocious, probably more so than even the last one.

22In your interview, you frankly told the police what you had done and your own words speak for themselves in portraying this very violent outburst of rage.  You said the following:

23"He was really, really, really, really annoyed me and I cracked the shits and lost my temper and broke his arm with the shovel.  I hit him, it would have been at least eight times, four when he was standing, four when he was on the ground.  I did the baseball thing.  I stopped when I saw he had blood all over his face and when he was unconscious.  I kept going a little while after that with the shovel.  He was nearly unconscious when I hit him with the shovel and broke his arm.  I didn't hear it break, but I knew I'd hit him that many times it would have broken.  I also failed to mention before I also kicked him numerous times when he was nearly unconscious.  I sunk the slipper in, as you call the term, into the stomach.  Didn't have shoes on."

24The victim was transported to Melbourne for emergency brain surgery and repair to his broken arm.  He remained in intensive care for nearly two weeks.  His injuries were as follows:

25He had a large left acute subdural haematoma with mass effect on his brain, bleeding on the brain.  Right side rib fractures with underlying pneumothorax and lung contusion.  His lungs collapsed.  He had open right mid-shaft radius and ulnar fractures, further fracture of his arm.  A fracture to his cheekbone.  He had fractures in the thoracic and lumbar transverse areas, and a small liver laceration.

26His recovery has been managed thereafter and it has been a slow process.  He has a case manager who assisted him in writing a simple Victim Impact Statement.  That reveals that he has trouble sleeping since and still has blurred vision.  He has had to face other difficulties as a consequence of the events being published in the local paper with a particularly unkind slant.

27On any measure, these were very serious crimes.  The use of the weapon, the kicking, and the ferocity of both attacks are of concern.  Although you had never shown an aggressive side of your character before, these explosions of rage reveal you have a problem in this area.

28You have pleaded guilty to recklessly causing serious injury, thus you did not intend to cause serious injury, but foresaw that serious injury would probably occur and you went ahead. 

29I must factor in the extent of the injuries that the victim sustained, but I note it has been said here in the plea that there is no ongoing physical or cognitive problems for him.

30The broken arms indicate the victim was probably doing his best to protect himself when you hit him hard enough to break his bones.  As you say, he was, on both occasions, very quickly overcome by your greatest strength and even then you kept going.  He was helpless and hopelessly drunk. The second attack was while you were on bail for the first.

31You have been on remand since February 2014.  Your mother spoke of you ultimately settling after a significant period of moving from police cell to police cell, which is, I might say, a blight on our criminal justice system at the moment.

32Of course you have been forced to abstain from alcohol while incarcerated.  You have, it seems, with the fog of alcohol now lifted, started to gain some insight into the problems alcohol has caused you. 

33Prior to these events, you were defensive about your alcoholism, rejecting, or not sticking with any rehabilitation programs.  You are now attending Alcoholics Anonymous meetings and getting a lot from them.  It is clear your rehabilitation turns on your capacity to abstain from alcohol lifelong.

34In this regard, you have a lot going for you.  Your family support remains solid, if not heroic.  You have visits and phone calls regularly.  It is planned that you live closer to your family in Melbourne when released.  Your mother was of the view that you need intense supportive rehabilitation on release.  I completely agree and urge that parole be intensive and targeted for your particular needs.

35The community, as well as you, will be the better and safer for it if that occurs.

36Your autism is one part of your problem.  You also have an intellectual disability with an assessed IQ of 68.  However, as is often the case with those with autism, the difference between your score on the verbal scale and the performance scale is very marked.  Your intellectual disability is an important factor in my sentencing synthesis. 

37You have always struggled to accept your difficulties, railing against being seen or considered as having a disability.  This lack of insight and resistance to any help has been the cause of your failure to cope or deal with your alcoholism, and also to have any vocational advances, such as gaining some employment, or doing some regular activity.  Your only exception is your artwork.

38Importantly, your mother now sees a breakthrough in this area, with you now in prison and facing the realities of that harsh place.  You now see you need help and are more receptive to what is, or will be available, particularly with the National Disability Scheme unfolding.

39This is also important in my assessment of your prospects for reform.  In this case, I have no difficulty in finding that your impaired mental functioning, that is the term that is used in sentencing; that your impaired mental functioning - that is, your autism and your intellectual disability, are realistically connected to your offending on both occasions.

40You could not, with your difficulties, reason and cope with the circumstances, and you exploded.  Thus, your moral culpability is to be seen as less than otherwise would be the case.  As a consequence, I will not visit the full weight of denunciation on you.

41Also because you are different and because of the nature and severity of your impaired mental functioning, I consider the community would not be comfortable with you being used as an example to deter others. 

42The weight to be given to general deterrence will be suitably moderated.  Likewise, the weight to be attributed to deterrence to you personally will be moderated.  You have some prior criminal matters which seem to me wholly arise because of alcohol and you being unable to cope with others considering you disabled.

43That said, your prior history is, in the circumstances, much thinner than one might expect, but in the end I will moderate the weight to be attributed to specific deterrence.

44Though you are now settled in gaol, it still presents you with problems that those with autism intellectual disability find especially hard to cope with.  If routines change, and then things will be more onerous.  I have factored that into the equation in your favour.

45Your early plea of guilty means your sentence will be much less, or much lower than otherwise would be the case.  The vexed area of remorse and empathy for those with autism is not as bleak in your case.  Your mother recognised the usual problems of empathy, but has seen in you recently, a real concern for the victim, contrition, and a determination not to do anything like what you did in September and February ever again.  Your remorse is important and operates to mitigate.

46Your counsel urged that I sentence you to no more time in prison than you had already done and that I utilise the option of the more expanded availability of a community-corrections order and utilised its targeted programs to help you rehabilitate.

47The prosecution argued the time you had spent in gaol was insufficient to meet the gravity of the crimes, notwithstanding the list of mitigatory matters evident in your case.

48In my view, although there is much that would push me towards emphasising your rehabilitation, I must also not lose sight of the gravity of what you did, and did twice.  The second time, notwithstanding the warnings that came from your arrest after the first assault.

49In the circumstances of two violent offences, a sentence of imprisonment must be imposed, and one that prevents me from considering a community-corrections order.

50To facilitate your rehabilitation, I will rely on parole or conditional release into the community when the parole authorities consider that you are ready.

51I will allow for a significant period of potential parole as the mitigatory matters do require recognition.

52I emphasise, of course, that all sentencing considerations, mitigatory and otherwise, have operated in the fixing of the head sentence and the minimum term.

53I have ensured that the sentence meets the totality of the two crimes you committed, no more and no less.   There must be some level or measure of cumulation in respect of the fact that there are two crimes.

54Doing the best I can, Mr Krelle, I would ask you to stand.

55For committing the crime of recklessly causing serious injury on 14 September 2013, you are sentenced to two years' imprisonment.

56For committing the crime of recklessly causing serious injury on 7 February 2014, you are sentenced to three and a half years' imprisonment.

57One year of Charge 1 is to be cumulative upon Charge 2.  That gives a total sentence of four years' and six months' and I fix two years as the minimum term before you are eligible to be released on parole.

58Had you pleaded not guilty to these two offences and been found guilty of them, I would have imposed a total sentence of six years with a minimum of four years.

59You have already served a significant number of days in prison.  I was told what that was on the last occasion and I now need it updated. 

60MS MAXWELL:  296 days, Your Honour.

61HIS HONOUR:  Mr Krelle, you have already spent 296 days in prison, and I will reckon that those 296 days to be part of the sentence that I have just imposed.

62I am sure that this declaration is entered into the records of the court so that the authorities are left in no doubt that you have already served 296 days of the sentence that I have imposed.

63There is an order that has been made by the prosecution to dispose of certain items that arise out of the crimes and I will sign those orders.

64You can be seated, Mr Krelle.  Is there anything further required?

65MS MAXWELL:  No, Your Honour.

66HIS HONOUR:  The arithmetic is right, obviously. 

67Mr Krelle, you will now have to go with the people from the security, or the prison officers now, the court is not the place that you can talk or have time with your family.  Some other arrangements will have to be made with you, perhaps in this court house, perhaps at the prison.

68I think counsel for their very significant assistance in this case.

69MR KELLY:  Your Honour pleases.

70MS MAXWELL:  Your Honour pleases.

71(Offender removed.)

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