Director of Public Prosecutions v Krueger (a pseudonym)

[2024] VCC 454

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENNY KRUEGER (a pseudonym)

---

JUDGE:	HER HONOUR JUDGE KARAPANGAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2024
DATE OF SENTENCE:	12 April 2024
CASE MAY BE CITED AS:	DPP v Krueger (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 454

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW - Sentencing

Catchwords:           Community corrections order – incest – mitigating factors –

rehabilitation

Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic).

Cases Cited:          Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann [2021]

VSCA 160; Rootsey v The Queen [2018] VSCA 108; R v Boland

[2007] VSCA 242.

Sentence:               With conviction, community corrections order for a period of 15 months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Paganis	Office of Public Prosecutions
For the Accused	Ms K. McKay	Doogue and George

HER HONOUR: 

1Kenny Krueger[1], you have pleaded guilty to two charges of incest.

[1] A pseudonym.

2The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.

Circumstances of the offending

3You and your victim, Sonia Newton[2], are biological siblings. At the time of the offending you were 17 years of age and she was 14 and 15 years of age.

[2] A pseudonym.

4The offending occurred in the family home.

Uncharged Acts

5On about three or four occasions, between January 2000 and December 2001, when both you and Ms Newton were children, you touched her in a sexual manner, over her clothing. These are uncharged acts.

Charge 1

6Charge 1 took place sometime between 6 May 2008 and 31 December 2008, when you and Ms Newton were home alone in the family residence. You entered her bedroom with your erect penis exposed and instructed her to perform oral sex on you.

7Ms Newton took your penis in her mouth for about four to five minutes, before you withdrew and then went straight to the bathroom.

Charge 2

8On another occasion in the same time period when again you and Ms Newton were home alone, you entered her bedroom.

9You got onto her bed and started touching her on her legs. She also touched you. You then moved your body closer to her and you and she touched each other.

10You then penetrated Ms Newton’s vagina with your penis, which lasted for about one minute. Once you removed your penis, you walked out of the bedroom to go to the toilet. She was bleeding from her vagina and you said to her 'Go and have a shower, because you're bleeding'.

Complaint and Investigation

11Sometime in late 2017, Ms Newton told her partner at the time about the offending and all the above instances.

12Sometime in 2019, Ms Newton also told her father about the offending.

13In June 2021, she first reported the matter to Police.

14On 24 June 2022, you were arrested in Wangaratta and taken to the police station for interview and you made a 'no comment' interview.

Gravity of offending

15Mr Krueger, the offending that you have pleaded guilty to is serious. You offended against a child and the law must be vigilant in protecting children from abuse. The principles of general deterrence and denunciation therefore loom large. You were Ms Krueger's older brother and the offending involves a gross breach of trust. The offending, which was repeated across the two charges, occurred in her home where she was entitled to feel safe. Not only is there a presumption of harm in these matters but there is clear evidence before the Court of long-‑term and ongoing harm caused by your offending. I am satisfied that at the time you knew what you were doing was wrong and it has not been otherwise suggested.

16These factors must, of course, be balanced with the fact that at the time of your offending you were only a child yourself, being 17 years of age.

17The proper approach to sentencing in cases such at this has been discussed by the Court of Appeal on many occasions. In the case of R v Boland[3] the Court stated:

Decisions in this Court in R v Nutter and R v Better recognise that where offences have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender’s moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity.

[3]R v Boland [2007] VSCA 242.

18In the case of Rootsey v The Queen ([2018] VSCA 108)[4] (at [14]) the Court of Appeal also relevantly stated:

In this State, because of the operative legislative regime, general deterrence is excluded from consideration in the sentencing of children. General deterrence continues to have relevance, however, to the sentencing of adults for offences committed as children, and of the offender's moral culpability, must take into account that what was done was done as a child, and not as an adult or a person of greater maturity. Thus, the sentencing judge was correct, in our view, to 'reduce the influence which the concept of general deterrence should be accorded', without altogether excluding it as a sentencing factor.

[4]Rootsey v The Queen ([2018] VSCA 108.

19Further, I have considered these principles in light of the opinion of Dr Mathew Barth, clinical and forensic psychologist, who states, at paragraph [38] of his report:

… lacking both the social skills and the opportunities necessary to seek other more appropriate partners for sexual exploration, he turned to his younger sister and sought to establish an inappropriate connection with her in an attempt to gratify and fulfil his desires for closeness. This need was made more urgent subjectively for him by the instability in his home environment and by his conflicted feelings towards the situation in which he found himself at the time.

20I also accept that the Bugmy[5] principles apply in your case, as advanced by your Counsel, and that your offending occurred broadly within the context of a dysfunctional, abusive and violent home environment. Your Counsel canvassed these matters in detail, which I do not propose to repeat here. In very brief summary, your background was volatile and you were exposed to significant family violence, parental substance abuse, neglect and instability. Consequently, the Department of Human Services were required to often intervene, removing you from your family and placing you in alternative care.

[5]Bugmy v The Queen (2013) 249 CLR 571; see also DPP v Herrmann [2021] VSCA 160

21Your Counsel tendered some contemporaneous Department records of 2001 which provide significant insights into part of your circumstances growing up. The General Case Note of 29 January 2001 refers to a meeting with your parents dealing with you and your siblings exposure to a 'very traumatic incident', that is the stabbing of your father, and the Departments concerns relating to your parents’ alcohol use and 'leaving the children unattended with inappropriate persons'. Further notes of interviews conducted with you and your siblings at the time report 'mum and dad drink a lot – up to four times a week'; 'when Dad's not drunk he's okay'; 'when Mum's drunk she buys us stuff, when she's not drunk she doesn't'; 'there is no food in the unit'; 'they did not have dinner and had lollies for breakfast this morning'; 'that their father told them that they are "old enough to look after themselves"'.

22As the Court of Appeal stated in Hermann’s case (at [14], [15]) –

In assessing an offender’s 'moral culpability', the sentencing court is making a moral judgment on behalf of the community about the degree of blameworthiness to be attached to the offender for the offending conduct. Determining how harshly a particular offender is to be judged – and punished – often requires a close examination of the personal circumstances and background of the offender and an exploration of factors which may explain the offending conduct. To the extent that offending conduct can be seen to reflect the operation of factors which are beyond the offender’s control, the harshness of the moral judgment is likely to be moderated.

23I accept by application of these broad principles that you are less morally culpable then a person who has not suffered such deprivation, or rather a person who has had the advantage of a stable and regular home environment during their formative years.

24As the Court of Appeal also stated in this case:

This focus on the offender reflects no disregard of the impact on the victim(s), nor of the seriousness of the offending. It is, rather, a function of the judge's obligations to impose punishment which is 'just in all of the circumstances' and to deliver 'individualised justice'.

Victim Impact

25Sonia Newton provided a victim impact statement in which she outlines in detail the profound and ongoing impact of your offending. She also speaks of the significant adverse effect that your offending and its disclosure has had on her family relationships. She refers to the shame and fear she has experienced over the years:

This disgusting secret [Kenny] created has stolen a life from me, from my first kiss to my virginity, my friendships, family and intimate relationships throughout my life I've always felt like I was hiding this secret and I was scared and ashamed of what people would think of me if I told them and I feel like that's the reason I've near truly felt like myself. I have faked a lot in my life because of the secret I've hidden, it took me many years to realize, it's not me who should be ashamed.

26She refers to the self-destructive behaviours she engaged in to try and cope and how badly over the years her 'mental and emotional health had been impacted' by your offending. Its impact has been far-reaching; undermining her sense of security and safety, causing a strain on her relationships and experience of intimacy; triggering panic attacks and nightmares and interfering with her ability to concentrate and work and study.

27I take into account the impact that your offending has had on Ms Newton and I thank her for providing her victim impact statement.

Plea of guilty

28Mr Krueger, you entered a plea of guilty to the charges at an early stage which entitles you to an important sentencing discount. Your plea of guilty has significant utilitarian value and has spared Ms Newton the trauma of giving evidence in a trial. Your plea of guilty indicates I accept your willingness to facilitate the course of justice and to accept responsibility for your offending. Your plea of guilty – along with your actions and representations – demonstrates what I accept to be your genuine remorse and shame for your offending conduct. Your friend Ivy Doyle[6] refers to your expression of 'total remorse, sadness and compassion'. Your wife, Francis Harding[7] refers to your openness in discussing your offending and the shame it causes you to feel. She also states 'he has been devastated by the rift this has caused in the family and has taken full responsibility for his actions'. This is consistent with the report of Dr Barth, who states that you have 'reflected extensively on the noxious impact of [your] offending behaviour and [have] gained a good understanding into the profound impact on Sonia'. The recent corrections assessment report refers to your expression of 'appropriate contrition for [your] behaviour and insight into the negative impacts it has had on the victim'.

[6] A pseudonym.

[7] A pseudonym.

29While the text messages and the pre-text calls of 2021 may not represent an unequivocal admission to your offending, I consider that they also represent an acceptance of responsibility and are reflective of remorse and I take these matters into account.

Personal circumstances

30Your personal history has already, in part, been referred to and was thoroughly detailed by your Counsel, Ms McKay and also canvassed in the report of Dr Barth.

31In brief, you are now 33 years of age. You are an Aboriginal man from the Gunaikurnai people. Your mother was part of the stolen generation and has struggled with her identity as a result, no doubt, of the grief and trauma experienced. In turn, while you were raised with an awareness of your Aboriginal heritage it was not until later in life that you have had the opportunity to forge a greater connection to your culture. You have actively sought to re-establish ties in your community, including by playing football in wholly Indigenous football teams, such as the Fitzroy Stars.

32You are the oldest of four children; there are two younger brothers and also your sister, Ms Newton.

33Your childhood was a tumultuous one and, as I have already referred to, you were exposed to violence, instability and neglect. Given your family's housing instability you moved schools on at least 10 occasions which made it difficult to fit in and significantly disrupted your education. You moved around Gippsland, Tecoma, Collingwood, Ballarat, Heathmont in Victoria, Renmark in South Australia and also Queensland.

34You suffer additionally from hereditary hearing loss which is sensorineural in nature, first detected when you were nine. You were often teased at school because of this and your use of aids, along with your generally impoverished circumstances, made it difficult to fit in. As confirmed by audiologist Alix McManus you were first fitted with hearing aids under the Hearing Services Community Service Obligation Program in 2000 and have continued to wear them since.

35In 2007, at the age of around 17 you left the family and moved alone to Christie Downs in South Australia to play football. You lived on a property owned by the South Australian Aboriginal Housing Authority and you enrolled yourself in Christie's Beach High School. You returned to Victoria in May 2008 and completed Year 11 by VCAL. Thereafter you commenced an apprenticeship in painting and have successfully pursued this trade as your career. Currently you work eight hours a day Monday through to Friday for an employer and in afternoons and weekends for yourself, often as a subcontractor.

36Given your traumatic upbringing, you have experienced periods of depressed mood since your early teenage years however have never been diagnosed with or treated for a mental illness. In his recent report Dr Barth refers to your current depressive and anxiety-related symptoms and opines that these symptoms 'are not sufficiently severe at this time to warrant the diagnosis of a psychological disorder'. He estimates your intelligence to fall within the normal range.

37As submitted by your Counsel your immediate family is now significantly fragmented. Your parents separated in 2021 for good and you assisted your mother to establish some stability, which, it was submitted, caused resentment on the part of your father. The disclosure and nature of this offending has also caused further strains and the severance of your relationship with your siblings. Your mother currently resides in Western Australia and has remained supportive of you.

Mitigating factors

38Mr Krueger, I have already referred to several mitigating factors advanced on your behalf, including the Bugmy principles, your young age at the time of the offending and the significant delay in this case. You were 17 years of age at the time of your offending and you are now 33. You were first arrested in June 2022 and you report experiencing 'a relatively intense emotional reaction after being charged for this matter'. You have no prior criminal history or any subsequent matters. I accept, as your Counsel submits, that you have spent these intervening years 'demonstrating a dedication to being a productive member of society and, more recently, husband and father'. You are married, as I have already noted, to Francis Harding, whom you have been with since 2017. You live together with your four-year-old son and she has offered her unwavering support of you.

39I take into account all the submissions that have been made and all of the material filed with the Court.

Prospects of rehabilitation

40I accept your Counsel's submission, Mr Krueger, that in all the circumstances, you do present with excellent prospects of rehabilitation. Notwithstanding the significant challenges you have faced during your formative years you have demonstrated a long-term commitment to pursuing a productive and positive life.

41The character references collectively speak of you as someone who is well respected and regarded within your local community. They refer to you as hardworking, generous and family orientated. In her reference your wife states that:

…despite [your] extremely tough upbringing, [you have] beaten the system and broken through a world where [you were] surrounded by drugs, alcohol, abuse and neglect on such an extreme level to grow into a strong hardworking, kind, loving husband, father and stepfather.

42She speaks of the care and guidance you also provide to her two teenage children.

43While you are experiencing a moderate level of depression and anxiety in respect of your offending and this process, you do not suffer from any addictions, cognitive deficits or limitations that might impede your ongoing rehabilitation. In his assessment of you, Dr Barth noted that there were no signs of deviant cognitions with regards to sexual behaviour with underage individuals and there was no evidence of other indirect factors typically associated with sexual deviancy (at [39]) or problematic sexual adjustment (at [46]). Dr Barth opines that:

… as far as can be ascertained in the current context, Mr Krueger's offending against his sister represents a severe outworking of the emotional and interpersonal impacts of his abusive and unstable home environment rather than the outworking of psychosexual deviance (at [48]).

44Formal risk assessment indicated that you are a 'low-risk' of sexual recidivism (at [41] and [45]). Dr Barth identifies your primary rehabilitative need is to receive ongoing treatment to address the emotional and interpersonal consequence of your abusive childhood. He further considers that 'offence-specific treatment ought ideally to be integrated within this treatment to further improve his understanding into the motivations of his conduct' (at [48]).

Sentencing purposes

45The basic purpose for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

46In terms of general deterrence, it is important that the Court express the denunciation of the community for such serious offending, even when committed long ago[8]. However, given the unique factors in your case, in particular that you were a child aged 17 at the time of the offending, as I have already referred to, I do accept that general deterrence should be significantly moderated. Also, I consider that specific deterrence, along with community protection, have a reduced role to play in the sentencing exercise due to your lack of prior convictions, your genuine remorse and the rehabilitation you have demonstrated since the offending occurred. You have no subsequent criminal history and have been a law- abiding citizen.

[8]DPP v Toomey [17].

47I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant in your case. I also take into account the principles of proportionality, parsimony and totality. Further, I have taken into account that each charge carries a maximum term of 5 years imprisonment.

48I must also have regard to 'current sentencing practices' which relates to practices as at the date of sentencing[9] The principle of equal justice also requires that regard be had to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time. Your Counsel notes that establishing sentencing practices at the time of the offending is a difficult task and referred to the Sentencing Advisory Council report.[10]

[9]Stalio v The Queen [2012] VSCA 120.

[10] See para 38 defence submissions of 25 March 2024.

49On your behalf your Counsel submitted that a community corrections order ('CCO') should be imposed. The prosecution agreed that a suitably tailored order was within range and could adequately reflect the seriousness of the offending, along with the significant mitigatory factors advanced on your behalf.

50You were assessed for an order and found suitable, and certain conditions were recommended. The Mental Health Advice and Response Service (MHARS) report also recommended ongoing assessment or treatment for your mental health. In all the circumstances I accept that a community corrections order is the just and appropriate punishment in your case.

51In deciding how to exercise my discretion as to whether or not to record a conviction, s8 of the Sentencing Act 1991 requires that I have regard to all of the circumstances of the case, including the nature of the offences, your character and past history, and the impact of recording a conviction on your economic or social wellbeing or on your employment prospects. I have given this matter very close and careful consideration.

52Taking the entirety of the circumstances of your case into account and having full regard to the matters raised by Ms McKay on your behalf, ultimately
Mr Krueger, I consider that your offending requires a conviction to be imposed. Weighing up all relevant considerations, I have come to the conclusion that a non-conviction disposition would fail to adequately reflect the seriousness of your offending or its serious impact.  Could you stand please.

Sentence

53On both charges Mr Krueger, you are convicted and sentenced to a community corrections order of 15 months' duration with the following conditions: 

·I order that you undertake community work and that is in the amount of 130 hours pursuant to s48CA(2). I offset 50 hours of this work against treatment.

·I order treatment and rehabilitation for mental health; and

·I order treatment and rehabilitation for programs to reduce reoffending.

54I will not, as I have already indicated to counsel, impose a supervision condition, guided largely by the recommendation of Corrections.

55Given the disposition a s6AAA declaration is not required and I do not intend to make a declaration but can I indicate this, had you not accepted responsibility and entered a plea and dealt with this matter in the way in which you have, your sentence would have been of greater severity. That is the purpose of a s6AAA indication is to indicate that a person does receive a discount for pleading guilty and accepting responsibility which in your case Mr Krueger is important. You can take a seat.

56Counsel are there any ancillary orders?

57MS McKAY:  I don't believe so, Your Honour.

58MS PAGANIS:  No, Your Honour, there's not.

59HER HONOUR:  We will have in a moment the order printed and you or your instructor, Ms McKay, can approach Mr Krueger to ensure that he understands it.

60You will be required within two working days to attend Shepparton Community Corrections.  You will be required to follow their lawful directions.  You will be required to inform them and seek permission in respect of certain matters, and importantly the order commences as of today for the period stipulated, a 15-month period.

61You can breach an order if you do not comply with a condition, or if you commit another indictable offence within that period of time.  If you breach the order then you come back to the court, before me.  You can be dealt with for the breach and also re-sentenced for the original charges.  Do you understand?  All right, you can take a seat, thank you.

62Thank you, can we have a copy also for Ms Paganis and then Ms McKay and/or her instructor can approach Mr Krueger with that order.  It looks correct to me.

63Ms Paganis, no issues?

64MS PAGANIS:  No issues, Your Honour.

65HER HONOUR:  Thank you.  I will sign it.  Mr Krueger and counsel will be provided with a copy of this order before leaving court and it will also be emailed to counsel.

66Ms Paganis, Ms McKay, can I thank you both for your assistance in this matter.  And Ms Newton, again if I can thank you for your participation and acknowledge the courage and strength that it has taken.  We will adjourn.

67COUNSEL:  As Your Honour pleases.

- - -