Director of Public Prosecutions v Krepp

[2016] VCC 529

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02253

DIRECTOR OF PUBLIC PROSECUTIONS

v

GLEN IVAN KREPP

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 April 2016
CASE MAY BE CITED AS:	DPP v Krepp
MEDIUM NEUTRAL CITATION:	[2016] VCC 529

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 F.E. Holmes
For the Offender	Ms L.A.V. Hartnett

HER HONOUR: 

1Glen Ivan Krepp, you have pleaded guilty before me to one charge of criminal damage and one charge of aggravated burglary. You have also pleaded guilty to the summary charge, which has been uplifted for hearing in these proceedings, a charge pursuant to s.145 of the Criminal Procedure Act, that being a charge of unlawful assault.

2The maximum penalty for criminal damage is ten years' imprisonment; the maximum penalty for aggravated burglary is 25 years' imprisonment; and the maximum penalty for unlawful assault as laid pursuant to the Summary Offences Act is 3 months.

3The facts underlying the offending are as follows:

4You had been in a relationship with your partner, Kirstie Lloyd, for about 13 years until about three weeks before the offending.  Together you have four daughters who, at the time, were aged in range from four to 11 years.  The two of you lived in a house in Noble Park which was owned by Ms Lloyd's parents and which you rented from them.  You had had difficulties with alcohol on and off throughout your relationship.  It appears that in the last several years there had been difficulties within the relationship and that you increasingly turned to alcohol in order to deal with those problems.  This obviously exacerbated the problems that already existed with Ms Lloyd, and about three weeks before the offending you were asked by her to leave the family home so that she could consider the future of the relationship. 

5In that three weeks you occasionally visited the family home to see the children and conduct basic maintenance, and during those visits you became increasingly aggressive and argumentative towards Ms Lloyd.

6On 24 September 2015, Ms Lloyd asked you to return the key to the house and told you that the relationship was over.  You were asked to leave the property about 20 times and Ms Lloyd told you she would call the police if you did not do so.  You became threatening towards her, saying that there would need to be 20 police to stop you, Ms Lloyd, therefore, becoming afraid to call police and instead contacting her father, who came over a few minutes later.  You said to him "I run through people's houses that call the police", but eventually left the house.

7You drove to a reserve in Keysborough, calling a friend, Brad Anderson, who met up with you, and the two of you drove to the Highways Hotel in Springvale where you drank beer and discussed the relationship, staying there for about 20 to 30 minutes.

8The two of you then went to a house in Keysborough to see another friend, who had also recently had a marriage breakdown, in order to discuss your relationship problems.  You went from that address to the Keysborough Hotel, CCTV footage from there showing you drinking a pot of beer at 12.21 am in the morning of 25 September.  You and Anderson left the hotel at about 2 am, returning to Anderson's home, where you continued drinking.  During the night Mr Anderson's partner, who was a friend of Ms Lloyd's, rang her to say that the two of you were at her place playing loud music and drinking, and Ms Lloyd went back to sleep soon after this call.

9At about 2.30 am you and Anderson decided to drive to the Noble Park house and you retrieved your nail gun from a locked trailer before being driven there.  At about 3 am Ms Lloyd was awoken by the sound of a car driving into the driveway, car doors opening and shutting and the voices of you and Anderson.  You repeatedly yelled "Open up the fucking door", at which stage Ms Lloyd became frightened about her own safety and that of the children and rang 000 to seek police assistance.

10At this stage you and Anderson were on the front porch, banging on the front door, pulling a flyscreen off the window, damaging pot plants and yelling and screaming.  This noise woke all the children, who became frightened, began screaming and cowered around their mother, who was in the middle of the house about six metres from the door.

11You and Anderson then moved around the side of the house to the back sliding door, still yelling and trying to get inside the house.  Ms Lloyd told the children to hide in her room but your eldest daughter, who was on crutches after recent surgery, was unable to move and at this stage all the children were crying and begging you to leave.

12You managed to force the rear sliding door open about ten centimetres and you and Anderson yelled into the house demanding to be let in.  You then went round to the front door, yelling "Open the fucking door.  I'm gonna kick the fucking door in."  You hit the door until the lock gave way and got into the house, at which stage you were carrying the nail gun as you entered.  You yelled and dry fired the nail gun, causing it to produce the noise it would as if it were in fact shooting nails.  No nails, of course, were loaded in the time.

13At times you pointed the gun directly at Ms Lloyd, who, in great fear, ran to the back of the house and removed a piece of wood, preventing the sliding door from opening, and she then let in Anderson, who took the nail gun from you.

14Police arrived and came into the house, by which stage Ms Lloyd and the children had taken refuge outside the kitchen door.  You tried to run out the back door but were arrested and handcuffed after a short struggle, you saying to police "I'm not going, you will have to drag me out and it will be on.  You will need lots more cops."  You and Anderson were arrested and taken to the Dandenong Police Station.

15In a record of interview with police, you said you were at the house in Noble Park on the afternoon of 24 September to do odd jobs around the house and visit your daughters and that you and Ms Lloyd began arguing over $40 you had agreed to give her, that Ms Lloyd's father had attended, you left soon after and that you were asked to return the keys to the house but had refused.

16You told police you had gone to the nearby reserve, that you had called your friend, Brad Anderson, and that the two of you then went to the Irish bar at the Highways Hotel, then the Keysborough Hotel and another friend's house.  You told police you had only had a few glasses of beer and were not drunk.

17You said eventually you decided you needed to attend at the Noble Park house in order to get some of your tools from the shed and that when you arrived at the Noble Park house, you knocked on the front door to tell Ms Lloyd of your intentions to secure the shed and take your tools.  You said that Ms Lloyd opened the front door with force, causing it to hit you in the head, that you entered the house via an unlocked front door and that you were not in possession of the nail gun when you entered the house. 

18You have no prior convictions.

19I now turn to your personal circumstances.

20You are 36 years of age, one of two boys born to your parents.  You were raised in the western suburbs and your parents separated when you were about 11 or 12.  You reported no difficulties at school, completing Year 11 in secondary school and proving yourself to be a talented sportsman who played local football and cricket at a reasonably senior level for some years. 

21You have a solid work history.  You undertook a carpentry apprenticeship and undertook various jobs thereafter working in a meatworks unloading trucks, as an industrial cleaner and, for the last nine years, have owned your own business building fences.  You were the sole financial income earner in the house.

22You told psychologist, Carla Lechner, whose report is dated 10 December 2015, that you had had drinking problems for some years, for which you sought assistance in 2012, at which stage you went on a mental health program.  You appear to have relapsed into drinking once marital problems arose.  I might say this is very typical of men who are having trouble in their marriages and it is obvious, this has been seen in this court time and time again, that all you managed to do was make things worse, and it would appear that relations between you and Ms Lloyd were clearly at a very low ebb, if not having hit rock bottom, at the time of this offending. 

23You told Ms Lechner that around the time of this offending you would occasionally binge drink and were drinking either 12 stubbies of light beer a day or six to eight beers of normal strength along with some spirits. 

24After your arrest, bail was refused and you remained in custody for 83 days until bail was granted by the Supreme Court.  In the meantime Ms Lloyd had taken out an intervention order, which was taken out both in her name and that of your daughters, and you have not seen them since this offending in September of last year.  On your release, you  moved to live with a friend on a farm property outside of Ballarat, where you have remained. 

25You told Ms Lechner that you had learnt your lesson and have attended to your drinking problems. 

26I received also a report from psychologist, Karen Walker, on whom you have attended several times since March of this year.  She described you as genuinely remorseful, a person who engaged well and who was attending to your drinking problems, your counsel informing me that you have not in fact drunk any alcohol since your release from gaol.

27I was also informed by your counsel that you are taking what is called alcohol blocking medication in order to continue with your resolution to attend to your alcohol problem, which I am satisfied was at a considerable level at the time of this offending.

28You have also sought to undertake other assistance, attending upon a men's behaviour program in the Ballarat area in February.  You have undergone one assessment for this but have not yet been allocated to a particular group, as further assessment has to take place, and I do note that these men's behaviour programs are heavily subscribed, there is usually a waiting list and, generally speaking, there are not enough of them, but it is very much to your credit that you have had the good sense to understand that you do have issues in terms of your behaviour that you need to attend to.

29I received a victim impact statement from Ms Lloyd, which was compiled in December of last year.  There is no doubt, notwithstanding the hostility that may have existed at the time, that your actions on this night have had an ongoing deleterious effect.  She has anxiety difficulties, as do the children, which have prevented her returning to work, as she wishes to do.  As at December, she was suffering sleeping difficulties, and she described a very distressing incident involving a fireworks display where all children apparently became quite hysterical.

30Obviously there are always two sides to any story in a marital break-up, but I can make it very clear, Mr Krepp, that no matter how aggrieved you may have felt, how abandoned by your partner you may have felt, (she appears to have made new friends and lost an amount of weight and transformed her life to some extent, and many men have difficulty adapting to changes in their partners' lives), but there is no excuse whatsoever for your behaviour on this occasion.

31You may have prided yourself as being a good father, and certainly I have received written references from friends who have known you for a long time who attest to your qualities as a father.  You entirely let down your daughters on this occasion.

32To stand in a house surrounded by screaming children being confronted by a drunken man firing off a nail gun in your direction is something that no human being should ever have to endure and certainly no child ever witness, and you should be thoroughly ashamed of your actions.

33Certainly those actions have resulted in several disastrous consequences for you, the first being your placement in custody for the first time in your life, and the second being separation from your daughters for the longest time in your life since they have been born.

34The intervention order taken out by Ms Lloyd expires in September, and I think you have probably got a lot of work to do in order to establish or re-establish any bonds of trust between you and Ms Lloyd, and no matter how angry you may still feel with her, I do not know, the reports all seem to indicate some understanding on your part of Ms Lloyd's position and an acceptance that the relationship is over and the work that you have to do, but whatever feelings of resentment and anger you may harbour towards her, I advise you, sir, to put them to one side because you are never going to re-establish a proper relationship with your daughters until you can demonstrate that you can deal with your former partner in a civil and safe way over a period of time.

35It may be that there are further legal proceedings required, it may be that you can come to an understanding with Ms Lloyd where she appreciates your daughters need to have contact with you, but by the time they do have contact with you, and you will need to do some work on this, their feelings about you, I have no doubt, will be apprehensive ones and will contain an element of fear that you, as their father, are going to find difficult to handle.  You would be very foolish to go down the line of blaming Ms Lloyd for any difficulties that your daughters have with you.  You have got a lot of trust rebuilding to do in respect of them.

36It is your hope eventually to return to live with your mother in Carrum Downs.  I note that both reports, psychological reports, refer to the strong family support you continue to enjoy, as well a strong friendship group, and indeed I note that a number of people have attended court to show their support for you today.

37I have previously mentioned the written references.  They were impressive.  They were generally from people who have known you for a long time and who attest to your hardworking nature, your generally positive attributes as a father, and their description of you on a personal basis means that I do accept that your behaviour on this occasion was out of character, prompted as it may have been by your drinking, which sadly appears not to have been out of character.

38Drinking did nothing for you on this occasion in order to solve the problems in your relationship, the problems of your separation, and I can make it very clear, Mr Krepp, drinking will be of no assistance whatever to you in the future given the considerable personal relationships you have to rebuild with your family.  I hope I make that clear. 

39It was the prosecution's submission that I should deal with you by way of a sentence of imprisonment to be immediately served, and a number of cases were submitted to me.  The concession was appropriately made, in my view, by the learned prosecutor that only one of those cases had application in this case, that is the case of Gale.  It is my view, however, that given your previously very impeccable history - I note there is an old prior for .05, but that has little to do with the sentencing exercise before me, except it being a marker, if you like, of longstanding alcohol problems, and it is my view that I should accept the assessment of both psychologists, which is that your risk of reoffending is low and your prospects of rehabilitation very good. 

40One of the reasons you wish to return to live with your mother is that you believe you will be able to take up full-time subcontracting fencing work, and that is only to be encouraged.

41Ordinarily the courts are expected to take a very stern view, in particular, of aggravated burglary and aggravated burglary which involves domestic violence, as it did on this occasion.

42There is reference by the Court of Appeal in a number of cases to the seriousness of aggravated burglary or offending of a violent nature around an intimate relationship and the particular notice the courts must take of this. 

43In a case involving domestic violence, general deterrence is the primary sentencing principle that a court must have regard to.  That is, it must send out a message to other men in the community that domestic violence is extremely serious and will not be tolerated. 

44Courts are expected to hand down stern sentences for aggravated burglary, which essentially amounts to a home invasion, and the aggravated burglary in your case involved the breaking into the house being armed with an offensive weapon.

45On balance, however, I have decided that it is not necessary that I impose a sentence of imprisonment to be immediately served. 

46A community corrections order has been appropriately described by the Court of Criminal Appeal in Boulton's case as a disposition which has application to a wide range of offending including serious offending.  Because, in my view, the principles of specific deterrence, that is, dealing with you in a way which will deter you from behaving in a like fashion in the future, community protection, are not issues in this case, that is, I am satisfied this was out of character offending, that you are remorseful, (and I note that you made a plea of guilty at the earliest opportunity, which was conceded by the prosecution), that you are a person with very good prospects of rehabilitation, that you are unlikely to offend in the future, it is my view that a community corrections order can appropriately express both the punitive aspects required in cases such as this as well as dealing with the positive and mitigatory features of this case.

47I do have the power to impose a community corrections order combined with a gaol sentence of up to two years, and I must say that given the nature of this offending, it is, in my view, appropriate that a gaol sentence be attached to a community corrections order, but it will be a sentence which reflects the amount of prison time, or the time that you have spent remanded in custody.  That was 84 days.

48So I intend to place you on - and I am going to do this on an aggregate basis, all the offending arising as it does out of the one occasion.  I am going to sentence you to a term of imprisonment of 84 days, which I declare has already been served by way of pre-sentence detention, and then release you on a community corrections order. 

49I can only place you on a community corrections order, sir, with your consent, so I need to explain to you the conditions that apply to the court.

50You can stand up, please, sir.

51Before I tell you about the conditions, I need to tell you this.  Many men, in particular, who come to court expecting they may receive a term of imprisonment and who leave this court instead placed on a community corrections order, tend to take the attitude "My problems are over, it's all behind me."  What lies ahead of you, in fact, and what lies before you are the conditions of the community corrections order, which you need to make a priority in your life.  Do you understand?

52OFFENDER:  Yes.

53HER HONOUR:  So you will go back, you will start working, you will be keen to work as many hours as you can.  There will undoubtedly be financial obligations placed upon you in relation to Ms Lloyd and your children, and many men take the view that work is the most important thing in their lives and everything else comes second.  If you take that attitude and, as a result, do not abide by the conditions, you will breach that order, you will end up back in front me and, if you breach the order, I have the power to re-sentence you in relation to this offending.  Do I make that clear?

54OFFENDER:  Yes, Your Honour.

55HER HONOUR:  So the order, which will last for three and a half years, is one that should take first place in your list of obligations.  Do you understand?

56OFFENDER:  Yes.

57HER HONOUR:  You are no use to your kids if you are in gaol, all right? 

58So the core conditions, or the fundamental conditions of any community corrections order are these: 

(1)       You must report to a Community Corrections Office within two working          days of the making of this order, that is, by Tuesday of next week;;

(2)       while you are on this order, you may not leave Victoria without the                permission of the Community Corrections Office;

(3)       you must inform the Community Corrections Office of any change of                  address or employment within 48 hours of that change;

(4)       whilst you are on this order, you must not report to or attend upon the           Community Corrections Office under the influence of drugs or alcohol; (5)     you must report to and receive visits from Community Corrections as        directed; and

(6)        you must obey all lawful directions of the Community Corrections Office.

59There are some special conditions that I am going to impose. 

60I am going to order that you undertake 250 hours of unpaid community work; you are to be assessed for and receive treatment for alcohol difficulties, for alcohol abuse; and you are to undertake assessment and treatment for mental health difficulties.  That is, I want you to attend for therapy, quite frankly, and you are going to need it because not only does this relate to the difficulties that you have had, this has been in some ways a traumatic time for you.  You have been in gaol for an extended period for the first time in your life, your relationship with Ms Lloyd has ended very abruptly, you have had no contact for some time, it is going to be a very difficult exercise for you emotionally re-establishing contact with her and your children, and it is really important that you have got someone to talk to about how best to manage that.  Do you understand?

61OFFENDER:  Yes.

62HER HONOUR:  It is not going to be easy rebuilding those relationships and you are going to find it frustrating.  You may find indeed that Ms Lloyd is 40 times more hostile to you than she has ever been before as a result of what occurred on 25 September and you may feel that is not fair, you were part of this, look how the relationship broke down, it is your fault, so forth, so on, all right?  So you have got a difficult road to hoe, basically, and you are going to need some assistance in how to handle that properly, how to do it in a way that best benefits you, that ensures that you do not reoffend, that ensures that at times of stress you do not resort to alcohol use.

63I am probably stating the obvious to you, but the effect of alcohol, Mr Krepp, is it is disinhibiting.  That is, when people drink, the normal social safeguards that they have in place about appropriate behaviour fly out the window, and men are particularly good at this, and every angry emotion that you have ever had will rise up like a tidal wave, sweep over you and lead you to behave in the very violent way that you did in September of last year, and it seems to me that you have possibly turned to alcohol use as a means of coping with difficult times in your life and you have still got some difficult times to come. 

64You are not going to be in gaol.  As you know, you are going to be re-establishing yourself employment-wise, financially-wise and, most importantly and in the most difficult sense, relationship-wise, particularly with your daughters, who are probably the most important people in the world to you, and you are probably going to get quite a shock about what a rupture has occurred in your relationship with them, and that is going to hurt you and you are going to find that difficulty.  It can be overcome, and if you do the right thing over - it is probably going to be an extended period of time, you will re-establish that relationship, but it is going to take a lot of patience, a lot of forbearance and a lot of effort on your part over a long period of time.  All right?

65OFFENDER:  Yes.

66HER HONOUR:  Are you prepared to enter this order?

67OFFENDER:  Yes, I am.

68HER HONOUR:  Thank you.  Now I do not see the need for a s.464 sample.  This is a man with no prior criminal history ‑ ‑ ‑

69MS HOLMES:  I understand that, Your Honour.

70HER HONOUR:  ‑ ‑ ‑ and very good prospects of rehabilitation, and I am not prepared to grant that application at this point in time.  I will, of course, sign the disposal order.

71MS HOLMES:  Thank you, Your Honour.  Also, could Your Honour please exhibit the defence documents, because I don't think that they were exhibited.

72HER HONOUR:  Yes, I do exhibit then.

73MS HOLMES:  Thank you.

74HER HONOUR:  In referring to the authority which I have conceded was relevant to the sentencing exercise before me, that was a case which, in my view, involved more actual violence and it followed on a period of stalking ‑ ‑ ‑

75MS HOLMES:  Yes.

76HER HONOUR:  ‑ ‑ ‑ and a breach of an intervention order which was in existence, and there were - the circumstantial scenario was notwithstanding that I think the actual confrontation following the aggravated burglary was only a matter of minutes, it was clear there was a live cattle prod used in that case.  The Court of Appeal said that the consequences could have been disastrous.  There had been a period of stalking involving the covert installation of GPS and other tracking devices in the vehicles and home of the accused's former partner and there was a threat made to hurt the accused's wife's new partner immediately following the attendance of police.  As I said, in my view, the sorts of matters the court had to deal with there were, to an extent, more serious, more wide-ranging and a little more difficult in terms of resolving, for example, where the offending sat in the range, and one is always very reluctant to term domestic violence as anything but serious, but the confined nature of this offending, its impetuous nature, the prior history of Mr Krepp, his subsequent behaviour and remorse and the psychological material that I have received have led me to the conclusion that the disposition I have decided upon is the correct one.

77MS HOLMES:  As Your Honour pleases.

78HER HONOUR:  The other thing to remember is your daughters saw you kicking and screaming and drunk, being dragged away by a number of police.  All right?  Youngest was four; is that right?

79OFFENDER:  Yeah, that's right.

80HER HONOUR:  Oldest was 11 on crutches.

81OFFENDER:  Yes.

82HER HONOUR:  That is not something any child should ever see, and their mother probably sobbing and screaming in the middle of it.  No matter how angry you might be with her, you have created a terrible picture that those girls are going to carry around in their heads for some time and it all relates to you, so you could not have behaved more unwisely or more damagingly insofar as your domestic situation is concerned.  You really need to take that on board.  It has got nothing to do with "She did this, she did that, she provoked me", it is to do with how you responded.  You got drunk, you behaved incredibly violently and you ended up terrorising your daughters, whether you meant to or not.  That is what happened.  You need to wear that.  You need to take that on board and you need to go away with that. 

83You know, all the good bloke stuff in the world, all the, you know, hours of - and I note there was one reference that talked about the thousands of hours you have given to a particular netball club.  That is all to the good, but that does not excuse - you do not turn around - "I'm a good bloke that was pushed to the edge."  You were not.  You were not a good bloke that night.  You were a man in marital difficulties who responded with extreme violence and you have traumatised your daughters in the process.  All right?  Do not ever forget that.  And that is the basis that you work from, the people who take responsibility for what they do, who then manage to kick on and build something positive in their lives.  If you leave this court going "It's not fair, poor me", this order will not work.

84The other condition that I am going to impose is, I am going to order judicial supervision.  That will be every six months.  You will be coming back in front of me, I will receive a report from Corrections as to your progress under Corrections, and that will be ongoing for the time that you are on the order, so we have not seen the last of each other, Mr Krepp, all right?

85OFFENDER:  Yes.

86HER HONOUR:  Thank you, sir, have a seat, we will prepare the documentation.

87MS HARTNETT:  As Your Honour pleases.

88MS HOLMES:  Under s.6AAA, Your Honour, because there's imprisonment ‑ ‑ ‑

89HER HONOUR:  We don't have to.

90MS HOLMES:  ‑ ‑ ‑ because there's imprisonment ‑ ‑ ‑

91HER HONOUR:  Because of the imprisonment?  I thought the CCO meant I didn't have to do that.

92Pursuant to s.6AAA, had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two and a half years and I would have ordered that you serve a minimum term - no, it would have been more than - it would be more like three years, and I would order that you serve a minimum term of 18 months.

93COUNSEL:  As Your Honour pleases.

94HER HONOUR:  Thank you.  We will just get that documentation.  I had better sign these.  Is there anything else that I need to attend to that I haven't, Ms Holmes?

95MS HOLMES:  I don't think so, Your Honour, thank you.

96HER HONOUR:  I will not thank you if I come off the Bench and go "Oops", get everyone back.

97MS HOLMES:  I'll email quickly if that happens, Your Honour.

98HER HONOUR:  Thank you.  All right, thank you.  I forgot to state that one of the core conditions is whilst you are on the order you must not commit any offence punishable by imprisonment, all right?  And that does not mean you have to be gaoled.  That simply means you could be charged with something - stand up, sir - that for which you could be gaoled.  An example is, you steal a box of matches from Woolworths, theoretically you could be gaoled for that, and that will be a breach, so will driving offences, all right?  Good.  Have a seat, thank you, sir.

99I have not made an order that you attend a men's behavioural change program, but I would advise you to get in one if you can, all right?  That sort of support is helpful.  You will have other men in the same situation and you can all, you know, keep a bit of a restraint on each other about this.

100OFFENDER:  Yes.

101HER HONOUR:  All right, thank you.  The other thing that might be worth doing, but you have got to be careful when you are doing it because of the intervention order, is writing a letter of apology to your wife and children, forwarding it to the informant, who will enquire whether or not she wants to hear it, but it may set the ball rolling, and it would be very sensible if it included things like, you know, "I understand that it will take a long time to rebuild trust.  I am not going to pressure you in any way", so forth and so on.  Does that make sense to you?

102OFFENDER:  Yes, it does.

103HER HONOUR:  You seem to have a lot of very sensible nodding friends.  Hopefully they will assist you in the process, and your mother.  Thank you very much.  Yes, I think that is everything.  Thank you very much. 

104Good luck, Mr Krepp, we will see you in six months' time.

105OFFENDER:  Thank you.

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