Director of Public Prosecutions v Kruger
[2024] VCC 801
•3 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00041
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOLLY ROSE KRUGER |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2024, 6 May 2024 | |
DATE OF SENTENCE: | 3 June 2024 | |
CASE MAY BE CITED AS: | DPP v Kruger | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 801 | |
REASONS FOR SENTENCE
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Subject:SENTENCE- CRIMINAL LAW
Catchwords: Armed robbery – category 2 offence – Sentencing Act 1991 – Verdins- homelessness – trauma – young offender – co-offender- good prospects of rehabilitation – general deterrence – rehabilitation emphasised – vulnerable mental health - delay
Legislation Cited: Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571
Sentence: Total effective sentence of 2 years imprisonment; non parole period of 12 months imprisonment 6AAA declaration – a head sentence of 2 years 10 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Pirrie | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms L. Dubroja | Adrian Paull Criminal Lawyers |
HER HONOUR:
Introduction
1Holly Kruger, you have pleaded guilty to an indictment containing one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment.
2The circumstances in which you came to commit that offence are contained in the Amended Prosecution Opening on Plea dated 13 September 2023, which was Exhibit A in your plea in mitigation of penalty. The prosecution also relied upon:
· victim impact statement of Tyson Simpson dated 14 September 2023 (Exhibit B);
· the reasons for sentence of His Honour Judge Tinney of this Court in the matter of DPP v Matthews (your co-offender) dated 22 September 2022 (Exhibit C);
· your criminal record, in respect of a subsequent matter (Exhibit D).
3I have also received the affidavit of Ms Jackie Ashmore of Justice Health dated 10 April 2024 (Exhibit E).
4In addition to the matters developed in oral argument, your counsel relied on:
· outline of submissions for plea hearing dated 14 September 2023 (Exhibit 1);
· psychological report of Ms Daniella Kocic dated 17 July 2023 (Exhibit 2);
· supplementary report of Ms Daniella Kocic dated 15 September 2023 (Exhibit 3);
· final CISP progress report dated 17 January 2023 (Exhibit 4);
·
letter of engagement from Ms Georgie Polwarth of Headspace dated
25 March 2024 (Exhibit 5);
· patient health summary and notes of Curlewis Medical Centre printed on 2 May 2024 (Exhibit 6).
5Ms Kocic also gave evidence in your plea. I have taken all exhibited matters into account in determining the appropriate sentence in your case, in addition to the evidence given and the matters developed in oral argument.
Circumstances of offending
6Your charge of armed robbery relates to your actions of intentionally assisting your co-offender, Bradley Matthews, in an armed robbery committed on 11 March 2022. You were 20 years of age at the time of your offence, and your co-offender was 35.
7Your primary victim was Nicholas O’Brien, who was then known to you through mutual friends.
8
On the date of your offence at approximately 9.35 am, Mr O’Brien was in his back shed at an address in Norlane, working on a grey 2005 BMW owned by Tyson Simpson. Mr Simpson resided at that address with Mr O’Brien. CCTV camera footage, which I have viewed, shows you and Mr Matthews walk past the front door of the house and down the driveway towards the rear gate of the fence at the property. The two of you opened the gate into the back yard and walked around towards the rear shed, where Mr O’Brien was working on
Mr Simpson’s BMW.
9Your co-offender, Mr Matthews, was wearing a black face mask, and was carrying a brown paper shopping bag and backpack. The CCTV shows an orange handle protruding from the backpack, which the prosecution alleges to be the handle of the machete used in the offending. You were carrying what appears to be a white handbag and an orange and white Myer shopping bag.
10
The two of you entered the rear shed at approximately 9.36 am. Mr O’Brien was inside the BMW when he first noticed you both. He immediately recognised you through your earlier meetings through mutual friends and he observed
Mr Matthews wearing the mask.
11
In your presence, Mr Matthews produced the large, orange-handled machete from his bag and approached Mr O’Brien and demanded money. Mr O'Brien proceeded to empty his wallet and handed over $700 in cash. Mr Matthews demanded anything else of value, and Mr O’Brien replied that he did not have anything else in his possession. Mr Matthews then demanded the keys for the BMW and was told they were on the driver’s seat. Mr Matthews swung the machete towards
Mr O’Brien in a threatening manner.
12Mr Matthews then instructed you to call 'the boys' and you used your mobile phone, using words to the effect of 'tell them to wake up'.
13You and Mr Matthews then got into the BMW and Mr O’Brien was told to open the garage door, which he did. CCTV shows the two of you leaving the property in the car.
14Your attendance inside Mr O’Brien’s shed with Mr Matthews, your knowledge of Mr Matthews’ possession of the machete, the phone call that you made to the boys, and your departure with Mr Matthews in the stolen car amounts to your participation in the offence of armed robbery of the vehicle, to which you have pleaded guilty.
Investigation, arrest and interview
15
Immediately after the incident, Mr O’Brien went inside the house and told
Mr Simpson what had occurred. Understandably, at that point, Mr O’Brien felt shocked and frightened that the two of you might return, and he did not report the incident immediately.
16Later that evening, when Mr O’Brien was home by himself, he became frightened when two people walked past his address and he called Mr Simpson. Mr Simpson informed his mother, Sharon Simpson, what had happened earlier in the day, and Mrs Simpson contacted Triple 0 just prior to 9 pm.
17Police arrived at the Norlane, address and spoke to Mr O’Brien about what had occurred and the crime scene was processed and examined.
18
Police obtained the CCTV recordings and observed your attendance with
Mr Matthews.
19On 12 March 2022 at approximately 2.15 am, police observed the stolen BMW driving along Gull Street, Norlane and commenced following the vehicle. The police attempts at interception led to the BMW catching fire. Mr Matthews was observed fleeing from the car and he was arrested. A large orange-handled machete was located on the ground beside the car, which the prosecution alleges was the machete used in your offence. I have observed a photograph of this knife, which is of considerable size.
20Later that day, police executed a search warrant at an address in Corio, and located clothes consistent with those worn by Mr Matthews in the armed robbery.
21On 8 April 2022, you were arrested by police at an address in Corio and you were taken to the police station and interviewed. You falsely told police that you were not the female depicted in the CCTV, and you falsely denied knowing Mr Matthews. Police later seized and analysed your mobile phone, which confirmed that you had made the call consistent with the one that Mr O’Brien heard, i.e. that in the course of the armed robbery, you followed Mr Matthews’ direction to 'call the boys'.
Effect on the victim
22As I have observed, Mr O’Brien was left shocked and frightened as a result of your offending. This offence also deprived Mr Simpson of his car.
23I have the benefit of a victim impact statement from Mr Simpson, and he has described not only the financial loss that he has experienced as a result of your armed robbery, but of the shock and fear that you have caused him by entering his private property, which has alerted him to the fact that he is not safe from this type of offending in his home.
Plea of guilty and timing; remorse
24You were charged following your arrest on 8 April 2022 and were remanded into custody for five days before being released on bail. The matter proceeded through the committal stream of the Magistrates’ Court and you indicated your intention to plead guilty to the proceeding charge at the committal hearing on 18 January 2023, without the necessity of any witnesses experiencing the stress and inconvenience of needing to give evidence.
25I accept and take into account that your plea of guilty was entered at an early stage, and at the time of its entry it was of considerable utilitarian benefit, not only because it saved the witnesses the inconveniences to which I have referred, but it also saved the Court the considerable time and expense of a trial, which was of special significance at the point in time at which that indication was given of your intention to plead guilty, coinciding at it did with the delays to Court proceedings caused by the effects of the COVID-19 pandemic. I attach considerable mitigatory weight to the plea of guilty and the point in time at which it was entered, including this broad utilitarian benefit.
26Further, I accept and take into account that your plea is reflective of remorse, which is reflected in what you told Ms Daniella Kocic, psychologist, at the point at which she assessed you and as noted in her forensic report, that is that you feel bad for the victim and that you would take it back if you could.
27Furthermore, I note that you were bailed to appear at the County Court at Geelong for your plea hearing on 24 April 2023. However, the matter did not proceed as a plea before me until February 2024, which has led to a period exceeding two years between your commission of the offence and this sentence. I accept and take into account, as your counsel has submitted, that the uncertainty of the sentence to be imposed during this period of long delay has weighed heavily upon you, in circumstances where your only subsequent matter was an offence committed prior to this arrest. In other words, you have demonstrated your capacity for rehabilitation during this period of delay. I therefore also attach considerable mitigatory weight to the delay between your indication of your willingness to plead guilty to this offence and this sentence.
Personal circumstances
28You are now 23 years of age and were 20 at the time of your offending. At the time of your offence, you had no prior criminal history and were a person of good character, to which I attach considerable weight in mitigation of penalty.
29I have the benefit of two reports from Daniella Kocic, psychologist, as well as her oral evidence, and have I drawn heavily from that material, as well as from your counsel thorough submissions, and understanding your background, history, and presentation.
30You were the eldest of three children, born in Western Australia.
31
I am sorry to say that you experienced a chaotic and unstable childhood, which was marred by early exposure to substance use, physical and verbal abuse, and neglect, which you have been unwilling and unable to discuss in detail with
Ms Kocic owing to the sensitivity of those memories.
32You reported to Ms Kocic a loving and supportive relationship with your extended family, including with your uncle and first cousins, but unfortunately you learned at a young age that this uncle had committed sexual abuse upon your cousin, which eventually led to his imprisonment. I can understand how this has affected the way in which you viewed what appeared to be a supportive extended family relationship when it turned out that that was just a veneer.
33Unfortunately, in 2020, another cousin committed suicide.
34After your uncle was imprisoned in 2014, when you were aged 13, your family moved to Melbourne, where your father commenced work as a landscaper and your mother in a pub.
35Your father treated your mother very poorly and you would try to stand up for your mother.
36When you were 14, your father kicked you out of the house, and you have led a transient lifestyle since then. You couch-surfed with friends, you stayed at an aunt’s home, you stayed in hotels, and you have stayed in homeless refuges.
37
I am very pleased to note that recently your father left the family home and you have taken the opportunity to commence mending your relationship with your mother. You have now opened up with her about issues that you have experienced, and you feel supported. You now live with your mother at
St Leonards, and you have very much enjoyed your mother’s company since you were bailed to that address in April 2022.
38You attended four primary schools due to constant relocation and completed Years 7 and 8 at a high school in Perth. You were suspended a number of times for disciplinary issues. When you moved to Melbourne, you attended Bellarine Secondary College and completed Year 10, but left school at the age of 16 after a close friend’s death.
39You have been in and out of casual employment ever since, including work at a few fish and chip shops, a pizza shop, and doing kitchen work at a pub. You last worked in 2020 but you were terminated due to the effects of the pandemic.
40I understand that you were in a relationship which you have since described as “toxic” for two years on and off from 2020 and were in fact pregnant at the time of your offending in the context of this relationship. Following your offence, you made the decision to terminate that pregnancy. You were introduced to your co-offender in the context of this destructive relationship.
41You have used substances to cope with your traumatic background, in that you commenced smoking cannabis at the age of 14 and were smoking daily by the age of 16. You first consumed alcohol at the age of 16 and by the age of 17 you were drinking excessively.
42You began using methylamphetamine at the age of 16, which continued until you were 18, at which point you ceased usage for two years. However by 20, you were again addicted and were a regular user of methylamphetamine due to issues with your relationship, which I note again coincides with your commission of this offence.
43Fortunately, you last used methylamphetamine around the time of your offending.
44From the age of 20, you started using GHB, coinciding with your relapse into methylamphetamine use, but again fortunately you left this behind you after your commission of this offence.
45You found withdrawing from the substances very difficult during your short time on remand. I am pleased to note that you engaged in alcohol and other drug counselling via ACSO, and you benefited from a CISP condition on your bail.
46I understand that you were diagnosed with anxiety and depression at the age of 14 by a general practitioner in Bellarine and in your assessment by Ms Kocic in May 2023 you reported anxiety symptoms such as over-thinking, feeling on edge, somatic symptoms, and general worry and fear. You also reported historic and current symptoms of feeling down, low mood, lack of motivation and feelings of helplessness.
47You have engaged with the organisation Headspace, including in 2017 when you were 16 years of age following the death of your family member. You had also been prescribed fluoxetine as an antidepressant but were non-compliant with the medication. As at the time of Ms Kocic’s first assessment of you, you have not engaged in psychological treatment since 2017.
48At the time of that assessment, Ms Kocic administered relevant empirical testing and concluded, as a result of your adverse childhood experiences and resulting disruption in personal circumstances ever since, that you have symptoms of post-traumatic stress disorder ('PTSD'), with intrusive symptoms, hypervigilance and a threat perception. You have engaged in avoidance, withdrawal and isolation to suppress and manage these symptoms and you were unable to elaborate on specific adverse life experiences that you had endorsed.
49As a result of your forced exit from the family home, you have experienced isolation, perceived neglect and abandonment, and ongoing instability. Ms Kocic notes that you reported the use of Xanax, methylamphetamine, and GHB at the time of your offending, and you were anxious and depressed at the time. At the time of her assessment, she provided a diagnosis of major depressive disorder, characterised by persistently low mood, lack of motivation, and feelings of hopelessness.
50I share Ms Kocic’s opinion that your psychosocial circumstances in 2022, including your homelessness, your volatile relationship, your association with antisocial peers and your polysubstance use at the time, compromised you and contributed to your offending which, as I have stated earlier, I consider to be out of your general character at that time.
51Ms Kocic provided a supplementary report dated 15 September 2023, in which a further opinion was provided with respect to the impact of further time in custody upon you. In her opinion, it is likely that a period of imprisonment will trigger a deterioration in your mental health, as a result of your high vulnerability to further episodes of depression and heightened anxiety. She observed in you suicidal ideation. She expressed concern that any trauma that you are exposed to in the custodial environment may exacerbate your existing symptoms of untreated PTSD. In her opinion, an individual with depression, anxiety and symptoms of PTSD, such as yourself, is at a substantially higher risk of reacting disproportionately to the volatile prison environment than a person who does not experience these conditions.
52Ms Kocic expanded upon the opinions proffered in the reports with oral evidence in your plea. In her opinion, your lack of adaptive coping mechanisms and strategies and the severity of your mental health condition will mean that the reception into custody will weigh very heavily on you, and that such an environment may cause a deterioration in your condition. I will foreshadow that I accept that this is the case, and I intend to mitigate your sentence in recognition of the increased hardship that you will experience in prison as a result of your psychological condition, and also impose a less severe sentence as I find there to be a considerable risk that imprisonment could have a significant adverse effect on your mental health.
53Ms Kocic testified that her understanding of the services available in custody is that it may take time for you to be assessed and treated, and that you may attract a lower priority in allocation of services than other prisoners. You may also be required to participate in group sessions, which would not benefit you as much as individual sessions with a clinician with whom you may have developed a relationship of trust.
54Ms Kocic’s concerns led to the provision of an affidavit from Jackie Ashmore, clinical director, Adult Health Services, at Justice Health. Ms Ashmore is a registered nurse with a Masters in Mental Health Nursing and a Masters in Health Services Leadership. She provided a comprehensive outline of available health services in the prison system, including that a prisoner will be subject to physical health and mental health reception assessments upon entry. Treatment plans and integrated healthcare plans are developed to manage prisoners’ healthcare needs, including the prescription of medications as clinically indicated. Unsurprisingly and regrettably, there is a significant number of prisoners in Victoria with complex and chronic health conditions, but prisoners have access to primary health and mental health staff who monitor their mental health status. There is a clear referral mechanism to general health services and secondary healthcare services. Amongst the secondary mental health services provided by Forensicare on an inpatient basis within the prison system by a multidisciplinary team, including psychiatrists, psychiatry registrars, nurse practitioners and mental health nurses and Allied Health, there is a unit in Dame Phyllis Centre for intensive treatment for female prisoners with mental illness. There is a process of assessment undertaken in respect of prisoners who show signs of suicide or self-harm. A prisoner can also request a review with a mental health professional to address their mental health, including emotional needs, at any time.
55I was provided with a summary of the assessments and screening processes that you might undertake if you were detained in custody as a result of the sentence that I must impose, and Ms Ashmore deposed that, in general terms, “it is not uncommon for the mental health staff to effectively manage the treatment of prisoners diagnosed with major depressive disorder, generalised anxiety disorder, and symptoms of post-traumatic stress disorder”.
56A number of sentencing principles are relevant, given your personal circumstances.
57First, given your relatively young age at the time of your offending, I observed and find that you then lacked the degree of insight, judgment and self-control that is possessed by an adult, and you may not have fully appreciated the nature, seriousness and consequences of your criminal conduct. I also recognise your potential to be redeemed and rehabilitated, and I intend to attach more weight to rehabilitation than general deterrence. Secondly, I find that the effects of your traumatic background linger upon you, and I attach mitigatory weight to this trauma in moderating the sentence which would otherwise be appropriate (Bugmy v The Queen [2013] 249 CLR 571).[1] As I have mentioned, I also infer that your mental health increases the hardship that you may experience in prison compared to a person who does not experience this hardship, which I have taken into account both in mitigation of sentence, and also in my careful consideration of an appropriate and proportionate penalty in your case. Paradoxically, your depression in particular may contextualise why you have been so reserved about seeking treatment in the community, which necessitated an adjournment of your plea hearing for my somewhat forceful encouragement for you to seek that treatment, which resulted in you attending upon your GP on 12 March and 7 April this year, which led to you commencing the antidepressant escitalopram, and attending upon Headspace on 8 March this year which resulted in you being placed on a waiting list. In the meantime, I was reassured as to the services available in the prison system, which had earlier been the subject of concern expressed by Ms Kocic and your counsel.
[1](2013) 249 CLR 571.
Objective gravity of your offending; moral culpability
58Ms Kruger, I accept the prosecution contention that this is a serious example of the offence of armed robbery. You accompanied Mr Matthews to the private home of a person known to you but not him. You were present while Mr Matthews produced a very dangerous and frightening weapon and demanded the car. You followed the direction to muster others. You accompanied him as you both drove away from the scene in the car. The offence was brief in time but was of lasting effect upon your victims. Your role was subordinate to Mr Matthews who was not before me, but you were still an active participant in the offending.
59In respect of moral culpability, I accept and take into account that this offending was out of your generally good character at the time, that you were relatively young, you were and had been living a turbulent lifestyle owing to your homelessness, trauma and drug addiction and use.
60I am prepared to infer that your involvement was situationally motivated by your age, your use of drugs, and your poor associations at the time, and that during the long period of delay between your commission of this offence and today’s date, on which I must impose sentence upon you, that you have brought your life closer into order both with respect to re-establishing a close relationship and residence with your mother, and recovering from your addiction to drugs. You are now more than two years older, and more mature than you were at the time. Your short time on remand has had a frightening effect upon you, and the prospect of returning to custody has haunted you ever since. The court proceedings and sentence I am obliged to impose will have a powerful salutary effect upon you and act as their own deterrent from future offending. I consider your prospects for rehabilitation to be good.
Relevant sentencing principles; sentencing submissions
61In respect of this charge, the case is one in which the need for general deterrence is high. In other words, I am required to send a message to the community generally through imposing a sentence, to deter others from engaging in this type of behaviour. I am obliged to give emphasis to this objective of sentencing, as well as to the need to denounce your behaviour and punish you for your offending.
62On the other hand, I have found this offending to be situationally motivated and out of your general character. Accordingly, I am prepared to attach more modest weight to specific deterrence in imposing sentence, and I intend to emphasise rehabilitation in the sentencing exercise. Your circumstances, including your lack of prior history, your disadvantaged background, your vulnerable mental health, your relatively young age, your indication of an intention to plead guilty during the aftermath of the pandemic when the court was experiencing significant delays, the delay in listing your plea in mitigation in the interim, and your rehabilitation since the offending, I find justify a disposition which is very specific to its circumstances and which is at the lower end of the range properly available to me in the proper exercise of my sentencing discretion.
63Your co-offender, Mr Matthews, pleaded guilty to armed robbery in September 2022 before another judge of this court in the context of an indictment alleging other offending. He was much older than you and admitted an extensive prior criminal history. On that charge, he was sentenced to three years and ten months’ imprisonment as part of a total effective sentence of four years and four months’ imprisonment with parole eligibility. Whilst I am bound to apply the parity principle of sentencing, I intend to make considerable allowance for the differences between your role and personal circumstances in imposing sentences upon you on the same charge.
64The offence of armed robbery is a Category 2 offence under the Sentencing Act1991 (Vic). A term of imprisonment must be imposed upon you unless one of the exceptions in s5(2H)(a)-(e) can be established. Your counsel has made a careful and compelling submission that there may be reasons that are substantial, compelling, exceptional and rare that do justify a departure from the obligation upon me to impose a sentence and for the court to exercise its full sentencing discretion. Specifically, it was submitted that your symptoms of post-traumatic stress disorder, your major depressive disorder, and your cannabis, stimulant amphetamine-type and sedative, hypnotic, anxiolytic, use disorder, amounted to impaired mental functioning that would result in you being subjected to substantially and materially greater than the ordinary burden or risks of imprisonment. This was disputed by the prosecution.
65I have reflected very carefully upon this submission, but in my view it is a point that is unnecessary for me to decide, as, even if I were to find those circumstances in your cases, having regard to all of the matters that I need to take into account, the only available proportionate sentence to be imposed is a period involving immediate imprisonment. This is the position that has been urged upon me by the prosecution, and one which I must accept in all of the circumstances of this case. The secondary submission was a period of further deferral of sentence to allow you to continue with the very early stages of treatment for your condition that you have at last sought in the community, following a period of adjournment of this plea for you to do so. There have been two attendances upon your GP, and one attendance upon Headspace. I am unwilling to defer sentence.
66Nonetheless, as I have mentioned, I have reached a conclusion that the relatively unusual circumstances of this case justify the imposition of a sentence upon you that is at the lower end of the range of sentences properly available to me in the exercise of my discretion. Further, your good prospects for rehabilitation allows and justifies my imposing a long period of parole eligibility in respect of you.
Sentence
67On your charge of armed robbery, you are convicted and sentenced to two years’ imprisonment, and I order that you serve 12 months before parole eligibility. Were it not for your plea of guilty in this case, had you proceeded to trial resulting in a guilty verdict, I would have imposed a head sentence of two years and ten months’ imprisonment. I reckon and declare five days' pre-sentence detention as served. Mr Pirrie, I understand that there might be an ancillary order sought in this case. Just one moment please, Ms Kruger, I just need to get through my reasons for sentence. You have rights available to you after I finish, but I just need to finish these reasons and then I will let you have a chat to Ms Dubroja.
68Now, Mr Pirrie, it was a forfeiture order or a disposal order?
69MR PIRRIE: I think it was a disposal order, Your Honour.
70HER HONOUR: Yes, I understand. Ms Dubroja, I understand that you might have been served with that notice. Is there any necessity for you to make submissions on that?
71MS DUBROJA: No, Your Honour.
72HER HONOUR: Thank you. I will make that order as requested. Mr Pirrie, are there any other orders sought?
73MR PIRRIE: No, Your Honour.
74HER HONOUR: Thank you. We will now adjourn sine die and the accused is remanded into custody.
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