Director of Public Prosecutions v Kroon
[2021] VCC 794
•11 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-00360
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRODEN LEON KROON |
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JUDGE: | HER HONOUR JUDGE DAWES |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 June 2021 |
DATE OF SENTENCE: | 11 June 2021 |
CASE MAY BE CITED AS: | DPP v Kroon |
MEDIUM NEUTRAL CITATION: | [2021] VCC 794 |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Conduct endangering persons; prohibited person in possession of a firearm.
Legislation Cited:
Cases Cited:
Sentence: Total Effective Sentence of 2 years and 10 months imprisonment, with a non-parole period of 2 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Holmes | Ms A Hogan, Solicitor for Public Prosecutions |
For the Accused | Mr S. Ranjit | Papa Hughes Lawyers Pty Ltd |
HER HONOUR:
1Broden Leon Kroon, you have pleaded guilty to:
·one charge of conduct endangering persons. This is a rolled-up charge, incorporating the discharge of a firearm on two occasions. The maximum penalty for this offence is five years' imprisonment; and
·one charge of being a prohibited person in possession of a firearm. The maximum penalty for this offence is ten years' imprisonment.
2The circumstances of your offending have been provided in the prosecution opening. A general summary of the facts is as follows.
3On 25 March 2019, at approximately 6.08pm, you were outside the Heritage Springs Shopping Centre (‘the Shopping Centre’) in Pakenham, in the company of an unknown male. Two males, Clayton Foelmli and Thomas Ertl and a female came out of the Shopping Centre. You engaged in a verbal argument with the two males. In the course of the altercation, you produced a sawn-off .22 longarm rifle, from the waist area of your pants. Foelmli took off his jumper and dropped it on the ground, confronting you.
4You ran away and were chased around the corner by Foelmli. Ertl also followed, but he was some way behind. As you were running on the road, you turned back and looked at Foelmli who was running on the side of the road, next to the Shopping Centre. You lifted the sawn-off rifle and pointed towards him, before firing a shot in his direction. You were approximately 15 metres away from him when you fired the weapon.
5You both continued to run along Heritage Boulevard before you fired a second shot towards Foelmli, when you were between the Shopping Centre and the local Primary School. You were captured on CCTV footage inside the school grounds. You were last seen at 6.13pm, running towards the address of your partner.
6Police commenced an investigation and located two .22 spent shell casings in the vicinity where you fired the shots. Police assessed the point of impact as being at waist height, on the west side of the Shopping Centre. The firearm has not been recovered.
7You did not hold a firearm licence. You were a prohibited person at the time, as you had served a term of imprisonment of 12 months for an indictable offence, within the five years prior to this incident.[1]
[1]Firearms Act 1996 (Vic) s3(a)(v).
8Media coverage regarding this incident resulted in your mother contacting Police. She made a statement and identified you as the offender. She later retracted that statement. Similar clothing that you wore at the time of offending was observed in a photograph of you, on your sister's social media account. The photo also showed you holding a red iPhone.
9On 6 August 2019, police executed a search warrant at your partner's address. You were arrested and taken to the Pakenham Police Station, where a record of interview was conducted. You answered “No comment” in relation to the offending itself.
10When you were shown pictures from the CCTV footage, you stated, “I don't think it looks like me … this guy has got no tattoos.” You told the police that your tattoos have been there for at least 12 months and that they had been done by mates in the backyard. When asked whether you had been to any tattooist in Pakenham since the offence was committed, you said that you had not.
11Further investigation revealed, however, that on 12 July 2019 you had attended a Tattoo Studio, to have a tattoo put on your right hand. You had also attended there in the past to have your face and arm tattooed.
12A red iPhone was seized during the execution of the search warrant and analysed by police. Cell tower records showed that your phone was in the area of the offending at the relevant time.
13A victim impact statement has not been provided. Clearly, the circumstances regarding the altercation and subsequent conduct have not been fully disclosed. As the verbal altercation progressed, you produced your firearm. No explanation has been provided as to why you were armed with a firearm at the time or why it was loaded. Despite the presence of the rifle, Foelmli confronted you and you ran away. I am told that you felt very concerned for your safety when you were chased by him. He was not deterred by the firearm or the fact that it was discharged by you. The prosecution agrees that Foelmli acted aggressively when he confronted you and then chased you. It was in those circumstances that you fired the gun. The prosecution accepts that the particular circumstances in this case make it a rather unique example of this type of offending.
14You accept that your offending was serious and reckless. You should not have had a firearm in your possession. You discharged it, twice, in the vicinity of a shopping centre, in a suburban area. Fortunately, there were no other civilians present on the road or footpath and at risk of being seriously injured. You are fortunate that more serious charges did not proceed and that the outcome of this incident did not result in anyone suffering injury.
15You were charged 7 August 2019 and have been on remand since that time. You denied your offending and identification was the primary issue. A contested committal, where two witnesses were called, was conducted on 28 February 2020. You were committed to stand trial and entered a plea of not guilty.
16Your trial was initially fixed on 21 September 2020, although the date was vacated as a result of the COVID-19 pandemic. The trial was adjourned to an administrative holding date of 30 July 2021, although there is no certainty as to whether it would have proceeded at that time.
17There have been some discussions between the parties in relation to ongoing pre-trial issues. As a result of the sentence indication hearing, on 7 June 2021, an updated indictment was filed and you then pleaded guilty.
18All the relevant evidence has been available for approximately 18 months. The delay in the resolution of this matter is not only due to the problems associated with COVID-19, but also due to the fact that you disputed that you were the offender. While it has not always been so, you have now accepted responsibility for your offending conduct. I take your plea into account in your favour.
19Notwithstanding the timing of your plea of guilty, it has a significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial. In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that. This is particularly relevant as jury trials have been substantially delayed in light of the current pandemic. You have also entered your plea of guilty, knowing that a term of immediate imprisonment would follow, where the circumstances of your time on remand have been extremely onerous.
20You have admitted your criminal history. You have a number of relevant prior convictions for offences of violence, as well as a range of dishonesty and driving matters.
21On 15 July 2014, you were placed on a 12‑month community correction order by the Benalla Magistrates’ Court, for a consolidated plea hearing. The order included conditions that you were to participate in treatment and rehabilitation for (i) drug abuse or dependency and (ii) offending behaviour programs. A breach of that order was proven on 14 June 2016.
22On 8 September 2016, you were sentenced at the Wangaratta County Court to a combination disposition, being 12 months’ imprisonment followed by a two‑year community correction order, for one charge of aggravated burglary with an offensive weapon and one charge of intentionally causing injury. The order included conditions to undergo assessment and treatment for drug and alcohol abuse or dependency, mental health treatment and to undergo programs to address factors related to your offending conduct. I have obtained and read the sentencing remarks of Judge Mason. You were released from custody on 16 April 2017, the two-year community correction order commencing thereafter. The current offending occurred in the course of that order. You have admitted and already been dealt with for its’ contravention.
23You were born on 2 April 1992 and raised in Devonport, Tasmania. You are now 29 years of age. You experienced an unstable and dysfunctional childhood. Your mother worked as a prostitute and you were raised in brothels and in motorcycle clubhouses, never having stable accommodation. You attended a variety of primary schools and your access to education was limited. Your mother had a series of partners and a substance-use disorder. You were, therefore, exposed to illicit substance use from a young age.
24When you were thirteen years old, you and your mother relocated to Benalla in Victoria. You attended Benalla College up to year 10. You left home at the age of 15 and were essentially homeless for 2 years, before returning to live with your mother. Since that time, you have had sporadic employment, working at McDonald’s and assisting your stepfather as a boilermaker for two years. At the time of your offending, you were unemployed and in receipt of Centrelink benefits.
25You do not currently have a good relationship with your mother. In the past, your stepfather was your most stable and reliable role model. He was involved in a motorcycle accident in 2020 and died as a result of his injuries. His loss weighs heavily on you, especially as you were unable to attend his funeral as you were in custody.
26At the time of these offences, you were in a relationship. While you have been in custody it has ended, although you still maintain an amicable relationship. You have two children together, who are now aged two and one, respectively. Your youngest child was born soon after you were remanded. Given the COVID related restrictions, you have only seen the baby once since birth. You also have a child from an earlier relationship who is now aged eight years, although you have no contact with him at the moment.
27You have a history of illicit substance use from when you were around 13 years of age. At the age of 18, you started to regularly use methylamphetamine, developing an addiction. You state that at the end of 2018, you were undergoing financial and relationship problems and for several months prior to your arrest, you had regularly been using cannabis and methylamphetamine. It was in that context that these offences occurred.
28You had been given the opportunity to address your rehabilitation in the community at that time on a therapeutic corrections order. Regrettably, your compliance with the order was not satisfactory. Your engagement in assessment and treatment for drug use was sporadic and you continued to use drugs of dependence. You then reoffended.
29I accept that your drug use provides a context for your offending conduct. You have now spent a significant period of time on remand at the MRC for these offences and I am told that you have been abstinent from drug use while in custody. You have undertaken and completed some educational and vocational courses, including a drug rehabilitation program. You have also worked, firstly in the laundry, and for the past five months, doing welding. You have achieved a sense of satisfaction being able to maintain employment in custody, as it gives you “something to do”.
30Your goals when released are to continue with your drug rehabilitation. You will reside with your ex‑partner and hope to develop stability in your life. You look forward to spending time with your children and building a positive relationship with them.
31While your counsel acknowledged that the charges here are serious, it was submitted on your behalf that a term of imprisonment, in combination with a structured Community Correction Order would adequately address all relevant sentencing considerations.
32The prosecution submits that a term of imprisonment with a non-parole period is appropriate.
33In light of your demonstrated non-compliance with corrections orders, coupled with your ongoing drug use and reoffending, I am not persuaded that there is any utility in the imposition of a further order, as they have not been a sufficient deterrent in the past. In light of the objective gravity of the current offending, I am satisfied that a term of imprisonment is the only appropriate disposition. I consider that the current offences demonstrate an ongoing seriousness in your criminal misconduct.
34I am cautious of your prospects of rehabilitation. Hopefully, the fact that you have become a father to another child and that you anticipate rebuilding your life may increase your motivation to deal with your issues. A period of supervision provided by parole will form part of this sentence, which will be of benefit both to you and to the community. Subject to the decision of the parole board, I hope that you will soon be able to access parole and so facilitate your rehabilitation.
35I accept that the disruption in your family life and exposure to significant drug use when you were young is likely to have impacted on your personal development. These factors appear to continue to play a part in your lifestyle choices. The relevance of social deprivation does not diminish over time, notwithstanding your prior convictions. It is submitted on your behalf that these factors are a mitigating factor. The prosecution agrees that that this is a relevant consideration.
36While I am required to give weight to the principles of general deterrence, specific deterrence, denunciation and just punishment for your offending behaviour, your moral culpability is to be moderated in light of those factors. This is counterbalanced, however, by the principle of community protection, which remains a relevant sentencing consideration, particularly as this case involves the carriage and use of a firearm.
37I take into account that measures taken by Corrections to deal with the COVID‑19 pandemic have added to your hardship as a prisoner. You have been in custody for the duration of the pandemic. You have been subject to long and random periods of lockdown throughout this time. I do not provide any specific sentencing benefit for this, or for the possibility that lockdown may occur again. As I understand it, when this occurs you may receive sentence reductions as a result of the administrative decision of prison authorities.
38The emotional impact of being unable to have any personal visits for most of that time, and again for the foreseeable future, results in increasing the burden of imprisonment. Overall, the hardships that have occurred as a result of the pandemic, justify a sentencing benefit. The prosecution concedes as much
39I take into account the maximum penalty for these offences and current sentencing practices. The principle of totality is relevant, and I have taken care not to doubly punish you for these offences. Balancing these factors as best I can, I sentence you as follows.
40Charge 1, you are convicted and sentenced to two years' and six months' imprisonment.
41Charge 2, you are convicted and sentenced to 12 months' imprisonment.
42I direct that Charge 1 be the base sentence. I direct that four months of Charge 2 be served cumulatively upon the base sentence.
43That is a total effective sentence of two years and 10 months. I fix a non-parole period of two years.
44I enter in the records of the court that you have served 662 days of pre-sentence detention.
45The indication under s6AAA is that but for your plea of guilty I would have imposed a sentence of three years and six months, with a minimum term of two years and nine months.
46HER HONOUR: Thank you. Mr Ranjit, would you like to speak with your client on the link once I leave the Bench?
47MR RANJIT: No, thank you, Your Honour. I have already got Jaba booked with him later this evening.
48HER HONOUR: All right, thank you.
49MR RANJIT: Thank you.
50HER HONOUR: Is there anything further?
51MR RANJIT: Nothing further from defence, Your Honour.
52HER HONOUR: Ms Holmes, is there anything further?
53MS HOLMES: No, Your Honour, thank you.
54HER HONOUR: Thank you both very much. I'll adjourn the court.
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