Director of Public Prosecutions v Krensel
[2018] VCC 731
•23 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERIC EDWARD KRENSEL |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2018 | |
DATE OF SENTENCE: | 23 May 2018 | |
CASE MAY BE CITED AS: | DPP v Krensel | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 731 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of causing injury intentionally
Legislation Cited:
Cases Cited:
Sentence: Total Effective Sentence 340 days imprisonment together with a CCO of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Churchill | Solicitor for Public Prosecutions |
| For the Accused | Mr J Van Arkadie | Victoria Legal Aid |
HER HONOUR:
1 Eric Edward Krensel, you have pleaded guilty to one charge of intentionally causing injury, which carries a maximum penalty of 10 years’ imprisonment.
2 Your offending conduct is summarised in the Prosecution Opening (Exhibit “A”). On 16 June 2017, you went to Port Melbourne Beach. You sat approximately 2 metres from your victim, Andrew Taylor, who was sitting on the rocks reading a newspaper and drinking a stubby of beer. Your victim turned to you and stated “That’s good timing you fucking poof, I was about to leave anyway”. He then left. You became angry and followed him a short distance down Bay Street, Port Melbourne. You removed a flick-knife from your bag and put it in your pocket. You walked beside your victim and stated “Do you have something to say?” and then stabbed your victim once with the knife in his lower left back/buttock area. You left the scene and went into the Port Melbourne Life Saving Club, where you washed the victim’s blood from your hands and the knife.
3 Your victim was transported by ambulance to the Alfred Hospital. He was found to have suffered a stab wound to the left poster flank extending into paravertebral muscles and the psoas. The wound was closed with sutures in the Emergency Department, and your victim was given analgesics, a tetanus booster, and a course of antibiotics for seven days. He was discharged with instructions to be reviewed by his general practitioner in 10-12 days and to have sutures removed. No further information in relation to the victim’s condition is available and he has declined to make a Victim Impact Statement.
4 The incident had happened at approximately 12.15pm. At 12.52pm, police located you approximately 1.5 kilometres from where the stabbing had occurred. You asked police “Is he okay? I’ve hurt someone”. Police located the knife on you, and you told them that you had washed it under a tap. You were interviewed at St Kilda Police Station, where you admitted that you had stabbed your victim because he had been verbally abusive to you. You said you had gone to the beach, and before you could get out your book to read, your victim had verbally abused you, without you having even spoken to him.
5 You described yourself as having “just snapped” and then followed your victim up the road and stabbed him. You stated that you do not normally go around stabbing people, but you are sick of people being mean and unkind. You stated that you do not like hurting people or seeing them hurt. You stated that you had had the knife in its scabbard in your bag for ages. You put it in your bag because, since coming to Melbourne, you had read a lot of stories about gangs and are on your own all of the time. You agreed that there was no excuse for what you did, and you expressed the hope that your victim was okay.
6 You are presently aged 53 years, having been born on 4 September 1964. You come before the court with a lengthy criminal history dating back to 1985. The bulk of your offending is for dishonesty offences and drug offences. Most of your offending has occurred in New South Wales, where you have been given many fines and bonds and suspended sentences. However, between 1985 and 2014, you appear to have served eight immediate custodial sentences ranging from three months to a head sentence of two years. Although you have a couple of prior convictions for having custody of a knife in a public place, the only prior offence for actual violence appears to be a conviction for assault occasioning actual bodily harm, for which you were sentenced (together with some charges of dishonesty) at the Central Local Court in Sydney on 13 March 2013. On a successful appeal to the Sydney District Court on 29 April 2013, you were convicted and given a sentence of imprisonment of 12 months. The court was told that this was a situation where you were disturbed by a security guard whilst you were unlawfully on premises performing acts of dishonesty, and you punched the security guard to the face causing his nose to bleed.
7 In a plea on your behalf, Mr Van Arkadie, told the court that, after leaving school at the end of year 10 and working in a variety of unskilled positions, you had an interest in theatre and, in your late twenties, you won a scholarship to the Australian Academy of Performing Arts. Over some 10 years you performed in a variety of roles as an actor, however, your career was marred by addiction to drugs, in particular, heroin, and your many prior convictions for dishonesty were offences committed to support your drug addiction.
8 You were in a relationship for approximately four years when you were in your twenties, and have a son, Joshua, from that relationship. You separated from Joshua’s mother when he was approximately three years of age and, subsequently, spent a number of years looking after your son.
9 In 2015, you moved from Sydney to Melbourne to try and start your life afresh. At that stage, your son, Joshua and his partner were living in Melbourne. In June of that year you came before the Melbourne Magistrates’ Court for dishonesty and criminal damage charges, for which you were fined. Apparently, since coming to Melbourne, you have been on a Suboxone program and, also, you have been treated by Dr Jogoda for depression. He prescribed the anti-depressant, Zoloft in a daily dose of 50mg.
10 Your counsel stated that you felt that you had suffered depression for most of your adult life and had been “self-medicating” with illicit drugs and, up until you were well into your forties, had not sought treatment for depression. At the time of offending you had run out of Zoloft medication and had not taken it for three or four days. You had actually made an appointment to see Dr Jagoda on 22 June 2017, the week after the offending occurred. By that date, you had been remanded in custody for this offence. However, whilst in custody, you have been taking anti-depressant medication and have also been participating in a Methadone program and Hepatitis C program.
11 A report from Mr Jeffrey Cummins, forensic psychologist, dated 20 November 2017 was tendered at the plea hearing as Exhibit “1”. Mr Cummins took a history that you were raised in a loving and caring family and, after leaving school at the end of Year 10, had worked in a number of jobs in the hospitality industry. He noted that you had become dependent on heroin at age 17, but weaned yourself off it in your mid-twenties and managed to obtain the previously mentioned acting scholarship, completed an Associate Diploma and worked for some 10 years as an actor. In your late thirties, you trained as an assistant nurse and also completed a Certificate in Childcare but, again, became dependent upon heroin. Before coming to Melbourne in 2015 you had last worked at the fruit markets in Sydney in around 2005, and, obviously, you completed a number of periods of imprisonment over the ensuring 10 last years. After arriving in Melbourne you worked for a short time as a kitchen hand at a restaurant and then volunteered at “Lentil as Anything” café at the Abbotsford Convent.
12 Mr Cummins considered that you presented as being of at least high average intelligence and did not speak in an antisocial or antiauthoritarian manner. You told him that you lived a fairly isolated life and had not been taking Zoloft for a few days prior to the offence, and should have been able to deal with the provocative words spoken by your victim, but just snapped and used the knife that you carry around with you for protection. You stated that you had definitely overreacted by stabbing the victim and deserved to be punished for it. You stated that you felt genuinely ashamed, shocked and remorseful, but felt that you had been depressed for much of your life and had been put down and denigrated by people. You told Mr Cummins that you tended to isolate yourself from others and had always felt different to other people.
13 Mr Cummins considered that you had probably suffered a recurrent Major Depressive Disorder of moderate severity over many years dating from your mid-teenage years when you started using heroin. He stated that there may have been some nexus between your offending behaviour and you having ceased to take your anti-depressant medication, but he was unable to be more definitive about this. Mr Cummins noted that you have remained free of illicit drug use whilst in custody, but considered that you would do well to seek mental health treatment in the form of psychotherapy, and the risk of you resuming illicit drug use would most probably increase if you spent a longer time in custody. He thought it appropriate and necessary that you participate in an anger management program and that your risk of committing a further violent offence was moderate.
14 Mr Krensel, to stab your victim in the manner that you did is obviously a frightening and antisocial act. You apparently understand the fear of being attacked because such fear has caused you to carry a knife for self-protection. The insult that your victim hurled at you could never justify such a violent response, and you seem to realise this. I accept that you had gone down to the beach with the intention of reading and doing crosswords, as was evident from the material found in your bag. (Exhibit “2”). However, although I am satisfied that there was no premeditation of the offence, it is of concern that you followed your victim, who had removed himself from the area where you were sitting. It would appear that you suffer some problem in regulating your anger, although I do take into account that you had failed to take your anti-depressant medication at the time. Nevertheless, the court must denounce your conduct and place emphasis upon general deterrence, so that others who might be minded to think that they can randomly lash out at people and commit acts of violence will know that they will be appropriately punished.
15 In the light of your lengthy criminal history, there is also some need for specific deterrence, although I do note that this type of offending is not typical of your prior drug-related and dishonesty record.
16 Mr Krensel, the court does not often see a person aged 53 years who has had such a lengthy history of drug-related criminal offending. That is usually because long-term drug addicts have died before your age. You are clearly a person who had considerable creative talent, but that has been wasted by a life of drug addiction and crime. You present as a somewhat bitter, isolated individual with a chip on your shoulder. Having said that, the court recognises that overcoming a long-term drug addiction is a huge task. You appear to have tried to do something about it by getting away from Sydney and starting a new life in Melbourne and looking after your health by engaging in the Suboxone program, treatment for depression, and monitoring of your Hepatitis C condition.
17 I accept that the fact that you were found not very far from where the offence was committed, your comments to police expressing concern about your victim’s welfare, and your cooperation in the record of interview, demonstrate that you are genuinely sorry for what you have done. You made admissions to police and pleaded guilty at the earliest opportunity. I am satisfied that your plea is a truly remorseful one and, for this reason, you are entitled to a high discount on the sentence which, would have been imposed, otherwise.
18 You obviously have a long-term vulnerability in terms of depression and drug dependence, and I am concerned that Mr Cummins considers that your ability to remain free of illicit drugs, which you have done so far during your period in remand, may weaken the longer you are in custody.
19 You have now been free of illicit drugs for some time prior to going into custody and, also, during the 341 days in custody. This is very much to your credit, given your long-term addiction. You told the court that you tried to keep to yourself in custody, you read and do crosswords, and have completed an Occupational Health and Safety course and a Food Handling course, as well as working as a head of unit billet. You obviously have some positive attributes, including at least a high average IQ. However, you need every possible support to try and remain off drugs and keep your mental health condition in check, and contain your anger.
20 The prosecution has conceded that a combination sentence of immediate custody and a Community Correction Order is within range in your case. I consider such concession to be appropriately made. You have had no visitors during the time that you have been on remand, although your son, who lives in Yarrawonga, phones you weekly. You will need substantial support upon your release from custody.
21 I have been told by your counsel that the rental accommodation in which you were living in Kensington prior to being arrested on 16 June 2017 will be made available to you upon your release, but only for a period of 5 days. Beyond this period you propose to move to Yarrawonga to live your son who has indicated that you may reside with him for as long as required. In these circumstances, I consider that it is appropriate to make a disposition which enables you to return to the community and build upon the rehabilitative gains which you have made, even though your prospects of rehabilitation must remain guarded in the light of your lengthy history. It seems to me that, if you are prepared to cooperate with supervision and continue to engage with treatment for your drug abuse and mental health issues, then a Community Correction Order will promote your rehabilitation and, ultimately, be the best way of protecting the community. I have received a report dated 14 May 2018 which assesses you as being a suitable person to undertake such an order (Exhibit “D”)
22 On one charge of intentionally causing serious injury, you are convicted and sentenced to be imprisoned for a period of 340 days, together with a Community Correction Order of two years.
23 I declare a period of 341 days pre-sentence detention to be time already served under the sentence imposed this day.
24 The following terms are attached to the Community Correction Order:
(a) you must not commit, whether in or outside Victoria, during the period of the order an offence punishable by imprisonment;
(b) you must comply with any obligational requirement prescribed by the regulations;
(c) you must report to and receive visits from the Secretary during the period of the order;
(d) you must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force;
(e) you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f) you must not leave Victoria, generally or in relation to a particular case, except with the permission of the Secretary;
(g) 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.
25 In addition, the following conditions are also attached to the Community Correction Order:
(i) you must perform unpaid community work for a period of 150 hours;
(ii) you must be under the supervision of a Community Corrections officer;
(iii) you must undergo any assessment and treatment for drug abuse or dependency;
(iv) you must undergo mental health assessment and treatment;
(v) you must undergo any other programs to address your offending behaviour, including an anger management program.
26 Mr Krensel, I am unable to make this order unless you consent to it. Do you consent to it?
PRISONER: Yes, Your Honour
27 I declare a period of 341 days pre-sentence detention to be time already served under the order made this day. Hence, you are eligible for release forthwith. However, you must ensure that you report to the Office of Corrections within two days of this order. This will need to be at the Carlton office of Corrections, who will then arrange for your case to be transferred to Wangaratta, which is the nearest office of Corrections to Yarrawonga.
28 Mr Krensel, you need to understand that if you breach the Community Correction Order then that, in itself, is a criminal offence which carries a maximum penalty of three months’ imprisonment. In the event that you do not comply with the order, or you breach it by further offending, you will be then, most likely brought back to court before me and dealt with for the breach and may be resentenced on the original charge. This means that the Community Correction Order may be set aside and you may be ordered to serve a further period of imprisonment. Do you understand that?
PRISONER: Yes, I do.
29 Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of one flick-knife and leather scabbard. I further direct that it 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.
30 Pursuant to s6AAA of the Sentencing Act 1991, I state that had it not been for your plea of guilty, the sentence imposed would have been three years’ imprisonment with a non-parole period of two years.
31 Mr Krensel, the Court hopes that you will succeed in making a fresh start away from Melbourne, with the support of your son and the office of Corrections. The Court wishes you well with your rehabilitation.
PRISONER: Thank you, Your Honour.
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