Director of Public Prosecutions v Kruger

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR 17-02521

DIRECTOR OF PUBLIC PROSECUTIONS

CAROLYN KRUGER

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JUDGE:	HER HONOUR JUDGE SYME
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2022
DATE OF SENTENCE:	7 April 2022
CASE MAY BE CITED AS:	DPP v Kruger
MEDIUM NEUTRAL CITATION:	[2022] VCC 486

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Singh	Office of Public Prosecutions
For Accused	Ms K. Argiropoulos	Galbally Parker Criminal Lawyers

HER HONOUR:

In this matter, Carolyn Kruger, you have pleaded guilty to eight charges of theft, all in similar circumstances, all relating to theft from a company which was your employer at the time of the offending. The charges are each specified in annual blocks. You have pleaded guilty to eight separate charges, that on each occasion within the year specified in those charges, at Mordialloc, you stole the amount set out in the charges and detailed in the schedule on the indictment, and that money was the property of Triangle Waterquip Pty Ltd.
The offences are contrary to s74 of the Crimes Act 1958, and the maximum penalty for each offence is 10 years' imprisonment. The charges as represented by the annual amounts that I have just referred to are as follows. i) Charge 1, dealing with the calendar year 2008, a theft in the sum of $252,335.81. ii) Charge 2, dealing with the calendar year 2009, theft in the amount of $701,440.93.
iii) Charge 3, dealing with the calendar year 2010, theft in the total sum of $509,783.31. iv) Charge 4, dealing with the calendar year 2011, theft in the total amount of $701,739.32. v) Charge 5, dealing with the calendar year 2012, theft in the amount of $666,987.39. vi) Charge 6, dealing with the calendar year 2013, theft in the total amount of $522,118.92. vii) Charge 7, dealing with the calendar year 2014, theft in the total amount of $345,371.42. And viii) Charge 8, dealing with the calendar year 2015 up until I believe the first three months of 2015, theft in the total amount of $71,896.82
In total for the record, although the charges are separate, the total amount stolen during the eight year period as comprised in the eight separate charges is $3,780,672.93.
It is noted that you have no prior criminal convictions.
FACTS
The facts relevant to the offences are as set out in the prosecution opening, and not in dispute. By way of background, you are now aged 63 and aged roughly between the ages of 49 and 57 during the course of the offending. You resided at Bonbeach. You were employed on a part-time or contractor basis as a bookkeeper by the water filtration business called Triangle Waterquip Pty Ltd.
You were ultimately given responsibility for all the accounting and administrative functions of the business. This included accounts payable and receivable and wages, and you had full access to the bank accounts of the business. Triangle Waterquip Pty Ltd operated an account with the National Bank of Australia with an account number quoted in the prosecution opening. The normal procedure for any electronic fund transfer by the company or other payments such as BPay or overseas transfers was for the transaction to be authorised by one of the two directors, being Walter or Fredrick Minkie. During the relevant time you operated various bank accounts in your name and in the name of businesses in which you were involved and they were named as Keyboard Data Services and Ontrack Accounting. They had various accounts numbers which are also included and detailed in the Crown opening.
You also had a number of accounts held in the name of Kruger. Again, details of those accounts are included without controversy in the prosecution opening. Some accounts are in your name and some in the name of businesses with whom you were associated. The evidence is that this offending involved over 400 individual instances of theft and amounted to what in practice was a course of conduct over those years, although it is acknowledged by the prosecutor that each individual offence or theft included on the schedule is less than $50,000. Therefore Part 2B of the Sentencing Act does not apply. This of course does not alter the sentencing process requitements to use the maximum penalty as a guide in the instinctive process.
The thefts were initially discovered on 12 February 2015, when another company employee discovered discrepancies. On first being approached, you told her not to worry, however further investigations occurred, and further discrepancies were discovered. You initially admitted stealing a small sum of $3,200; explaining that you desperately needed the money to meet an urgent financial commitment.
Further discrepancies were discovered, and over time, it was ascertained that about $207,000 had been transferred from the company trading account without authorisation and had been transferred by you. Mr Minkie arranged for a meeting between you and company representatives. During this meeting you confirmed that you were connected to Ontrack Accounts, Melbourne IT Solutions, and Keyboard Data Services Pty Ltd. You also admitted in a recorded conversation to taking approximately $80,000 without authorisation, but you denied it was over $200,000.
Your employment with Triangle Waterquip Pty Ltd was terminated. On
26 February 2015, you admitted via email 26 unauthorised transactions made by you, totalling $207,131.80. On 29 May 2015, a deed was signed by you agreeing to repay monies to the company through the sale of several properties. The deed confirmed that if the amount of money obtained by deception by you exceeded
$1 million, Triangle Waterquip would be contacting Victoria Police to report the matter. I pause to observe that this was an unnecessary and probably generous concession by the victims.
Further investigation via a forensic accountant appointed by Triangle Waterquip revealed that the total of approximately $4.5 million had been transferred without authorisation by you between 2008 and February 2015. An internal review of the accounting software of the business revealed unauthorised transactions over many years, wherein transactions were misdescribed in order to conceal their identity. By the charges now pled to, it is clear that the prosecution accept that they can prove the sum stolen was in the order of $3.5 million, rather than the higher figure. Via your plea you accept that.
In relation as I have said to Charges 1 to 8, the total amounts referred to above and summarised by me and the schedules attached to the indictment set out each individual transaction, the date of those transactions, and the amount, and the total of those transactions on an annual basis. The charges are presented on a rolled up basis, if you like, in the manner that I've already outlined.
VICTIM IMPACT
Further in the prosecution case was the tender and the reading of the victim impact statements. Victim impact statements have been provided by Malter Minkie, Fred Minkie, and Catherine Rousel.
Not only, I observe, was the victims' business adversely impacted over many years, resulting in it existing as a marginal business for much of the time, in addition I have heard of the human cost of this offending. It had affected, according to those victim impact statements, the physical and psychological health of a family, who ran the business and continues to affect them in that way to this day. An unfortunate consequence they observed of the business existing at a marginal financial level for many years over which the offending occurred, was that the family running the business did not have enough time to pay sufficient attention to the administration of it, resulting apparently in a great deal of trust being placed in the very person who was in effect responsible for ensuring that the business remained financially marginal.
Each of the family members of this wide family have been adversely affected, I have been told. The victim impact statements remind the Court of the human cost associated with what is commonly called white collar crime. The matters are not raised as aggravating circumstances to the detriment of the offender, but are the sad and usual costs of such offending, and they simply remind the Court of that particular fact. They will not being taken into account as aggravating circumstances, but simply taken into account, as I said to remind the Court of the human cost of white collar crime.
PLEA
You were charged on 10 March 2017. You first pled guilty on 25 October 2019, after considerable negotiations, but not in those circumstances undue delay considering the number of separate theft and the rolled up nature of the charges. Inquiries were undertaken as to your fitness to plead, and some negotiations did take place before the plea was entered. This matter was originally listed for a plea hearing in October 2019, but you were unavailable. You indicated an intention through your solicitors to change your plea.
Thereafter there was considerable delay, partly while documentation was prepared on your behalf and on behalf of the prosecution, and partly due to COVID restrictions. A ruling dismissing the application to change your plea was made on 19 November 2021. Notwithstanding such delay, you are still entitled to a discount for the early plea, but that discount will be somewhat diminished as a result of the subsequent hearings, but not due to other delays caused by outside issues. I acknowledge that on the other side of the scale, the potential for delay has caused you anxiety. I also observe that you have within that time, repaid over $580,000 from the sale of property. That is in you favour.
OBJECTIVE GRAVITY OF OFFENDING
Matters that make the offending more serious include the fact that you were employed by the victim, therefore in a position of trust. The offending continued over an extended period of time, and that trust continued, and continued to be abused by you. Due to your position in the business, the large-scale continuous offending was difficult for the owners to detect; because of the trust they placed in you as a long term employee and friend. The offending continued over a long time, with tens of transactions occurring each calendar year.
The transaction amounts were in general I observe between just under $1,000 and on occasions up to $30,000 and occurred a few times each month, every single year. The time over which the offending occurred is an aggravating factor. You did not stop offending until you were challenged and you admitted a small degree of the theft and your employment was not surprisingly terminated. Objective seriousness takes into account the circumstances of the offending behaviour. Your moral culpability for the offending will be addressed below. I have not been addressed that there are any particular matters that is a reference to making the offending less objectively serious in this way, other than as reference to your moral culpability. Each offence is serious. The totality of the offending is significant.
PERSONAL CIRCUMSTANCES AND BACKGROUND
Detail of your background is taken from a series of self-reports by you to psychologists and psychiatrists who interviewed you well after this offending commenced. Most of the self-reporting and subsequent diagnoses of those psychologists and psychiatrists took place after knowledge of the thefts, especially the scale of them began to emerge. This must be a matter of some relevance to an assessment of whether to accept the self-reports you have given. It is observed that none of those to whom you gave a version of what has been accepted by the prosecution as being a traumatic childhood have sought to confirm any details of your version of events from those members of your family who are still alive.
This is surprising considering the circumstances in which you made certain disclosures and the proximity of the offending to those disclosures and the purposes for which you were seeking reports. None of the report writers spoke to treating psychologists of physicians about matters you reported to them. No conversations were undertaken with anyone who may be able to confirm the details you have given about your background or childhood. Notwithstanding that it seems you are still in contact with some members of your family, and some members of your family are in contact with other members of your family.
I will comment on this lack of rigour in more detail when discussing each report, but the starting position must be, that if a report is being prepared without an objective outlook at the commencement, it must be that the contents of such reports much be scrutinised carefully. By far the most relevant issue in the sentencing process is an assessment of your moral culpability, and as a result of any findings about your mental and physical health, what sentence ought be imposed. It is necessary to assess these matters to refer firstly and briefly to what you have reported to the various report writers.
You did not give evidence personally in the plea hearing, but the prosecution do not challenge the thrust of your version given. Unfortunately the versions you have given at various times to a series of report writers are not consistent at all times. It is accepted that your childhood was replete with profound deprivation, at least at the hands of your parents and siblings. You were one of three children born to your parents. As younger child your family reportedly moved around periodically as a result of your father's employment.
This had, it is reported, at the very least an unsettling effect on the family. And you reported that your mother in particular became abusive towards you. You report that you became estranged from your remaining family members except for your father and stepbrother who now reportedly reside in South Australia. You report that your parents separated when you were 14 years of age, and for a time you resided with your father. You report that your older sister Robyn died in 2007 of complications related to drug abuse. You reported that your younger sister Annette abuses drugs, and that you remain estranged from your mother and from her. It is also submitted however that perhaps some of the money you stole found its way to family members, in some kind of attempt to please them. There is no direct evidence of this.
As Robyn died in 2007 and you report you have not had contact with other family members since her death, this explanation simply does not make sense. It is but the first of a series of non-sequiturs in your various instructions to report writers to which I will refer later. You report that you are currently living alone and you have one daughter Kalia, who is now aged 28, who is reported to be supportive and I note was in Court with you on the last occasion, although again, there are reports that from time to time you have fallen out with her, as she has had contact with your immediate family members of whom you disapprove.
You reported that you suffered an extremely traumatic childhood. You reported that you suffered a childhood which was marred by significant sexual, physical, and emotional abuse, derivation, neglect and family violence. You complained of being malnourished, underweight and raised in filth. You report the physical and emotional abuse and sexual abuse was visited upon you by various members of your family, extended family, and friends. You reported witnessing violence perpetrated by family members on each other. I note in relation to your work history, you reported that you left school partway through Year 9 and gained employment eventually in computer systems after a series of jobs prior to that.
You reported that you commenced your own business supplying accounting packages, and later computer hardware and software. In 1997 you commenced working as a part-time contractor for Triangle Waterquip Pty Ltd. You report that during that time, you continued to expand your own businesses. After the theft was discovered and your employment with Triangle Waterquip Pty Ltd was terminated, you report that you continued performing bookkeeping for other businesses.
PSYCHOLOGICAL AND PHYSICAL HEALTH
You were involved apparently in a very serious motor vehicle accident in 2016, and your physical health is reported to have suffered significantly as a result. The consequences will be referred to below. In considering your mental ill health, which is the subject of many reports before the Court, it is submitted by your counsel that your psychological and/or psychiatric history and diagnoses is complex, although and I quote, "Clearly interconnected with and caused by your traumatic childhood and upbringing." (Defence submissions paragraph 31.)
In assessing the reliability of each report, I have initially referred myself to the County Court practice notes on expert reports, which replicates the Supreme Court Practice Note 7 on the same topic. Some experts who have presented reports claim to have read the requirements contained therein. Some agree to be bound by it. And some specifically acknowledge its requirement and their duty to the Court contained therein.
This is a matter of some significance as the practice note outlines an expert's duty to the Court as, 'Impartially, by giving an objective, unbiased opinion on matters within the expert's specialised knowledge.' This duty overrides any obligation to the commissioning party or to the person by whom the expert is paid. Importantly, and expert is defined in those practice directions as a person other than a treating practitioner who prepares expert evidence for use at a sentencing hearing regarding the mental functioning of the person who is to be sentenced.
It is obvious from the contents of some of the reports, that some of those writers cannot be so classified. This practice note is a simple and clear document. It sets out an explanation of the various levels of qualifications for psychologists and psychiatrists. In addition, paragraph 6 of the practice direction contains several requirements for an expert report's contents, including paragraph 6.4; 'An expert report should not simply rely on diagnostic labels, simply record opinions or conclusions or uncritically repeat statements by the subject about prior psychiatric or psychological diagnoses or treatment.'
Paragraph 6.5 notes the use and reporting of psychometric testing, and paragraph 7 notes regarding the requirements for reports which may be relevant for a Court which is considering among other things, moral culpability or effects of a custodial sentence, and a requirement to state as precisely as possible the basis for opinions as to how a condition may be related to the offending behaviour, and how if relevant, any condition is likely to impact on an experience of punishment.
It is with these considerations in mind that each of the presumed expert reports that have all been tendered by consent will be assessed.
ANGELA SCANLAN
The first investigation into any psychological condition or psychiatric illness being ascribed to Ms Kruger occurred either as a result of and certainly after the 2016 motor vehicle accident. The reports are as follows; report prepared September 2018 (I note three years after these offences occurred.) That report was prepared for Peninsula Injury Lawyers, presumably in order to support a motor vehicle claim after that 2016 accident. The second report from Ms Scanlan is a report prepared January 2022 for the current sentencing hearing.
Neither report has set out her relevant qualifications to provide the opinion she did. The second report does note that Ms Scanlan has read the Supreme Court practice note that I just referred to above, but nowhere in that report does she undertake to comply with it. Indeed, she has not. She cannot be regarded as an objective expert. She is, as she openly says in her report, a treating psychologist, and she is a psychologist who continues to treat Ms Kruger.

Ms Scanlan has now provided a CV. It shows that she graduated with a degree in behavioural science in 1989, and thereafter obtained a diploma of applied psychology in 1994. She became a member of the Australian Psychological Society in in 1997. She expresses her main areas of interest being chronic pain, trauma, and anxiety, however I note she has worked in private practice, presumably self-employed, and has not undertaken any postgraduate work in order to expand her knowledge. She says that she regularly attends seminars and peer-reviewed meetings. She is primarily, according to her own CV, a counsellor, and she is an approved supervisor with APRA in that field. She holds memberships of other associations, but her professional background is largely, it would appear self-informed.
This is an observation of some importance, as it is Ms Scanlan's so-called diagnosis that has been taken into account in a large number of subsequent reports, and it is her observation of Ms Kruger's presentation of multiple personalities that has been accepted by other professional report writers, some without question. I see in Ms Scanlan's CV and in her reports no relevant training nor experience for being able to diagnose a mental health condition or a personality disorder. She is simply not qualified to do so.
In addition, she has apparently administered some tests. There is nothing in her CV or in the testing results that she purports to include in her report that indicates she is qualified to either administer or interpret such tests. There is no indication in her report or in her CV that she has undertaken training to do so. Other concerns with her report are, as I observed, her initial report was for a motor vehicle accident claim. It also makes claim to make observation as to Ms Kruger's physical health. Ms Scanlan has no qualifications to comment on her physical health either.
Her propensity to comment in areas in which she is completely unqualified diminish even further any weight that might be given to her observations and her report.
Ms Scanlan purports to provide opinions as to a mental health diagnosis, and to the consequences of a custodial sentence. No reasoning is provided for either of those opinions. As a psychologist with basic qualifications, she is not qualified to do so. The statement of diagnosis in both reports is not accompanied by any reasoning, nor any indication that the practitioner is qualified to administer the testing she undertook, let alone draw conclusions.
Ms Scanlan throws no light on her reasoning process for the so-called diagnosis, apart from the fact that she saw Ms Kruger as part of her transport accident commission therapy and during the course of the therapy provided, she administered some EMDR - rapid eye movement treatment, which Ms Scanlan purports is an evidence-based treatment for post-traumatic stress disorder. The psychologist reported that the EMDR therapy produced many suppressed memories and without further explanation stated that, 'Carolyn exhibited distinct signs of a dissociate identity disorder.' As a result Ms Kruger was referred to a psychiatrist, Dr Ruwan Haputhantrige, whose report is referred to below. Nowhere is it acknowledged that this therapy and diagnosis is subject to some professional dispute, as qualified practitioners refer to later
In her second report dated January 2022, Ms Scanlan simply repeats the treatment of Ms Kruger following the MVA, simply repeats her belief that Ms Kruger requires treatment for dissociative identity disorder. Again no reasoning is supplied for this diagnosis. Ms Scanlan is a counselling psychologist. She provides she says psychological support and counselling for ongoing legal proceedings, and medical issues and in learning to set boundaries with her daughter and her mates, according to her report.
Ms Scanlan opines that a custodial environment will be, 'severely detrimental to her psychological state' without any cogent reasoning apart from a reference to one of the assumed identities protecting her. There is no information that
Ms Scanlan has made inquiries as to what is available in the custodial setting.
In summary then, unfortunately Ms Scanlan, who no doubt is a very helpful treating psychologist or counsellor is not qualified to make a diagnosis under the DSM-V manual.
She is a treating psychologist or counsellor, therefore she is not an expert as defined in the practice notes I read out earlier. She is not able to provide an objective report to the Court in fairness to her, she does not pretend to be objective. That is not her role. Her report and so-called diagnosis contained therein, is of little assistance to the Court. An explanation for the potential furtherance of the multiple personalities apparently now experienced by Ms Kruger, may well have its genesis in the treatment provided by this practitioner.
The observations of Dr Sullivan and Dr Haputhantrige support this observation, but are not relevant to an assessment of Ms Kruger's moral culpability at the time of the offending. I'll refer to those reports a little further on. Unfortunately the stated diagnosis by Ms Scanlan has been taken as a fact by other treating professionals and report writers. Of course, the fact that such a diagnosis is accepted and repeated by others without investigation does not make it more valid. The acceptance of this diagnosis by an unqualified practitioner is disappointing and must result in scrutiny of those subsequent reports.
DR RUWAN HAPUTHANTRIGE
The next series of reports is by Dr Haputhantrige who has provided a report dated 21 February 2022, and an addendum report setting out details of medication as prescribed. He is a treating psychiatrist for Ms Kruger, so again not an expert as defined in the practice note. He curriculum vitae is now available, indicating that he obtained his doctor of medicine, psychiatry at the University of Colombo in 2004. He successfully completed a supervisors' workshop at the Royal Australian and New Zealand College of Psychiatrists in 2009. He currently holds a consultant psychiatrist position in private practice at a private hospital, and a consequent consultant liaison psychiatrist position at La Trobe regional hospital. He was a senior registrar in psychiatry at the North-western Area Mental Health Service prior to his admission to the college of psychiatrists.
Again, I observe that the psychiatrist's qualifications, while adequate for that of a treating psychiatrist, do not comply with the definition of an expert, although
Dr Haputhantrige indicates that he has read the Supreme Court Rules' requirements. He cannot be bound by them because he is a treating psychiatrist. Nevertheless, his observations are useful. This doctor said in his report that he initially assessed her on 17 May 2017. He proffered various diagnoses, including post-traumatic stress disorder, recurrent depression, comorbid with an alcohol use disorder and dissociative identity disorder.
Contrary to the above practiced directions, unfortunately this doctor also gives no reasoning process and simply labels a series of diagnoses. Later in his very brief report, he indicates that he has been treating Ms Kruger for recurrent depression, and post-traumatic stress disorder over a period of four and a half years and he observed the symptoms of dissociative identity disorder, which he says, 'Got worse with the manifestation of new identities since December 2021.' Later in his report however, he observes that he has limited clinical experience in relation to dissociative identity disorder. One wonders then how he believes himself supposedly able to confirm such a diagnosis.
This doctor also opines the custodial environment may have an adverse impact on Ms Kruger's mental state, but fails to explain why or how. There is no information that the has made inquiries as to what is available in custody. His report is of some use to the Court with respect to his observations. It does not, as is submitted, confirm a diagnosis of dissociative identity disorder. It simply confirms that somebody else made this diagnosis, and that other person is apparently Ms Scanlan.
The next reports are those of Dr Solinski, dated 15 May 2020, 27 June 2020,
18 August 2020, together with the transcript of her evidence, when she gave evidence on 13 August 2021. Dr Solinski's curriculum vitae sets out that she obtained a medical degree in 1988; a master of psychological medicine in 1998, and was admitted as a fellow of the Royal Australia and New Zealand College of Psychiatry in 1991. She was awarded a law degree in 1999. However this is no evidence that she has ever completed any forensic specialisation, and appears to have been a consultant rather than a forensic psychiatrist.
Nevertheless, her observations of her client who she has seen on numerous occasions, may be of some assistance. Otherwise by reference back again to her CV, she is a member of various organisations, and describes herself as being the convenor of the dissociative identity disorder special interest group of the College of Psychiatry between 2003 and 2015. No further information relating to the activities or training for that group is contained anywhere in the information before me.
Dr Solinski has contributed to a few publications and presentations, none of which are relevant to the current consideration. She proclaims in her CV that she has given evidence in Court prior to her involvement in the current case. That claim was the subject of cross-examination in previous proceedings. In her first report, Dr Solinski agrees to be bound by the Supreme Court practice rules and agrees to provide a report that addresses Ms Kruger's diagnosis of dissociative identity disorder. This report contains considerable theoretical information on the disorder, its theoretical background, and theories of treatment. It does not contain any reasoning for the diagnosis, which is simply again noted as having been made.
In the second part of her report, Dr Solinski refers specifically to the background for Ms Kruger as it was relayed to her by Ms Kruger over a series of interviews. It is from this information reported to Dr Solinski that much of the background has been relayed to the Court in counsel's submissions. The final part of Dr Solinski's report, the doctor outlines what she refers to as dissociative symptoms and manifestations. Dr Solinski also undertook a mental state examination, and administered a self-report questionnaire, the content of which she analysed.
I have no dispute that she has the qualifications to do both of those things. The doctor said that she had had contact with other identities, including one referred to as 'Witchy' and one referred to as 'Little Carolyn', and that the personality Witchy was the one who made the admission to the doctor about stealing a very large amount of money. The doctor reported at that stage, the conversation of the persona of Ms Kruger returned and apparently understood - that is Mr Kruger understood what had happened.
Other sessions apparently continued in which various personalities appeared according to the doctor's observation. The doctor provides further information in her later report. She indicated that dissociative identity disorder has an onset generally in early childhood and suggests it was reasonably possible, indeed probable that such a condition was developed no later than six years of age.
Dr Solinski refers to Ms Kruger as being the dominant or original personality.
She suggests on p3 of that report, that during the course of the offending,
Ms Kruger, or the dominant personality was unaware of the nature of the conduct in the sense that she was not consciously aware of the conduct occurring. I do note that Dr Solinski sees herself as a treating psychiatrist rather than one whose duty is to report to the Court, notwithstanding her undertaking to be bound by those practice directions. In cross-examination in the previous proceedings in August 2021, Dr Solinski agreed that she did not know what best practice was in terms of formatting a report to the Court, but quite fairly said that her brief, as she understood it, was to elucidate the nature of associative identity disorder, and how it might bear on a particular matter.
She also said in her previous evidence, that she was not provided with details of all of the offending over the eight-year period prior to the preparation of her report and concentrated almost entirely on the issue of associative identity disorder and whether it existed at the time of the assessment. I'll repeat that because that's important whether the associative identity disorder existed at the time of her assessment. To be fair to Dr Solinski, she was given very little information about the offending itself. The doctor did not ask for further information and she indicated that she was unsure as to whether Ms Kruger continued to be treated by Ms Scanlan and/or Dr Haputhantrige. She did not discuss in what circumstances the other practitioners were treating Ms Kruger, nor did she discuss her observation or their treatment with them.
Surprisingly, she did not think it important to contact a treating psychiatrist to understand what treatment had been given in the years prior to the report that she was asked to opine on. She did not appear to be aware of the time of the proximity between the apparent emergence of other personalities with the discovery of the series of thefts committed by Ms Kruger. Dr Solinski was for example unaware if any other practitioner had given Ms Kruger education on the symptoms and consequences of associative identity disorder and how it might present herself. She did not investigate nor explore the truthfulness of what Ms Kruger had been providing to her.
Surprisingly, she did not think it important to check the truthfulness of the information that she was being given. In the previous proceedings Dr Solinski was also cross-examined on other evidence she had given in other cases, and it appears that at that time at least, the only other occasion that she had given evidence in Court was in relation to a diagnosis of associative identity disorder, and that disorder was given in relation to serious criminal offending that occurred of a similar nature and a lot of the money had been gambled away. It was suggested in that case that it was the alternative identity who was responsible for the gambling.
Dr Solinski was unable to clearly define where and for what reasons she disagreed with Dr Turnbull's report, (to which I'll refer later), where he disagreed with the assessment of dissociative identity disorder. Importantly Dr Solinski, who appears to have significant interest in dissociative identity disorders in not a forensic psychiatrist and was not rigorous in her assessment or her opinions to the Court. She was unable in any of her reports and her previous evidence to link the offending between 2008 and 2015 with a disorder that apparently emerged in 2017 or 2018, except by a conversation with apparently one of the personalities who admitted to having committed a $2 million worth of theft. This personality was apparently Witchy, who I will observe was completely unrepentant about the offending.
There is not apparent nexus between the offending in those years, that is 2008 to 2015 and the apparent diagnosis a number of years after the offending. This is of even greater concern given Dr Haputhantrige's observations that the manifestation of identities increased markedly in 2021. It is observed that by that time both Ms Scanlan and Dr Solinski had had numerous conversations with Ms Kruger about the presentation of dissociative identity disorder.
Now I am aware and confirm at this stage that the standard of proof in this part of the process, if it is to be in Ms Kruger's favour is on balance of probabilities. However the evidence of Dr Solinski is so weak that it is hard to accept even at that level.
DR TURNBULL
Further reports on this issue were provided by Dr Turnbull and Dr Sullivan, both of which were relied on by the prosecution, but I note that Dr Turnbull was originally a report writer for the defence on a previous application to the Court. I'll refer to his reports first. Dr Turnbull is very well qualified. He obtained his MBBS in 2006; a masters of psychiatry and psychological medicine in 2012, a masters of law in 2017. He has obtained a certificate in forensic psychiatry from the Royal Australian and New Zealand College of Psychiatrists and is an accredited independent medical examiner.
His qualifications and experience have been recognised to the extent that he has been a member of the Victorian Institute of Forensic Mental Health and a number of other government or government supported psychiatric positions. He has undertaken training with the American Association of Psychiatry and Psychology, and a number of other relevant training positions. He currently is consultant to Victoria Police in the counter-violent extremism unit, and the mental impairment and unfitness to be tried panel and is a director and clinical psychiatrist - consultant psychiatry in Consultant Psychiatry Pty Ltd.
He offers, according to his CV, independent psychiatry assistance to a number of state and federal government departments. Dr Turnbull's psychiatric reports relate to assessments in January and June 2019, some four years after the offending was uncovered. His reports acknowledge the requirements of the expert code of conduct. His first report dealt largely with the issue of fitness to plead or fitness to be tried, and he found Ms Kruger so. His second report, June 2019, Dr Turnbull observed that Ms Kruger took issue with the basis of some of the charges and asserted that two-thirds of them could be matched to invoices, suggesting it appears that no theft occurred as the invoices, therefore the payments were legitimate. Dr Turnbull reports that Ms Kruger told him, the remaining transactions in part were performed by another personality called Witchy, of whom she was completely unaware at the time.
Later Ms Kruger spontaneously reported that somebody else, that is another real person, not a personality - an employee called Renee might have been involved due to the coincidence of Renee buying a house at the relevant time. In this report Ms Kruger's attitude to the offending at this time (that is June 2019) is suggestive that Ms Kruger at that stage still denied the thefts occurred.
Dr Turnbull observed and I quote in summary; "On the basis of the current materials, Witchy not being involved in transactions outside those alleged, requiring clear goal-directed behaviour, and the transactions as best as I can read them, if close to - if not all being for the benefit of Ms Kruger, I am not inclined to support the idea that an alternative personality provides enough of an explanation to explain the offending."
Further on in his report Dr Turnbull said, again I quote, "I expect Ms Kruger has psychological and social difficulties beyond that of an alternative personality, but I have not been able to elicit or extract much in the way of detail about that." This observation states the obvious. Each of the transactions in the charges was for the personal benefit of Ms Kruger. Money was transferred into accounts over which she had sole control.
Ms Kruger suggests and alternate personality may have been responsible for in effect, overcoming Ms Kruger's own personality and but performing tasks for her benefit but without her conscious knowledge. Importantly, any indication of an alternate personality only came to light after the theft and the scale of it became obvious to others, and as a result of the deed that Ms Kruger had signed and I referred to above, the inevitability of the matters being referred to police arose. This sequence of events is highly suggestive of Ms Kruger either with or without encouragement from her treating professionals manufacturing an excuse or being convinced that she was devoid of personal responsibility for the thefts that were for her personal benefit, and which were of such detriment to those who trusted her.

I observe that Dr Turnbull is an appropriately qualified forensic psychiatrist, who indicated he has read and is bound by the relevant code of conduct. His report although brief contains relevant reasoning and conclusions. He is independent. He raises the issue of professional doubt about the diagnosis itself. His report therefore must be given some weight.
DR SULLIVAN
The next report placed before the Court was from Dr Sullivan, who prepared a report dated 6 April 2021. Dr Sullivan is a qualified forensic psychiatrist. He is currently the executive director of clinical services at the Victorian Institute of Forensic Mental Health. He holds three master’s degrees in related areas.
He holds membership of the appropriate organisations and is an accredited member of the specialist organisation RANZAP. He claims clinical experience in community, prison, and forensic hospital settings. Dr Sullivan is by far the most appropriately qualified forensic practitioner to give an opinion in this matter. He met with Ms Kruger by video conference on 8 January 2021 for 135 minutes. He took the trouble to ensure that she understood the reason for this assessment and consented to the preparation of the report. Dr Sullivan has also acquainted himself with the relevant material, the charges before the Court, the evidence before the Court, and the psychiatric reports of others to whom I have referred above, including the psychological report of Ms Scanlan.
Dr Sullivan's report sets out a history given to him by Ms Kruger as she relayed it. I note that that information omits much of the significant bizarre physical and sexual abuse outlined to other practitioners, although Ms Kruger does complain of significant abuse from her mother and emotional abuse from other members of her family. She reported to Dr Sullivan that after the 2016 motor accident she became aware that "Witchy" was helping her a lot. Dr Sullivan took a history of the offending behaviour, including Ms Kruger's complaints about being, as she said, forced into a plea of guilty.
Ms Kruger referred to the personality "Witchy" as being very clever in transferring funds to accounts that she had not noticed. She described other personalities. Apparently no alternate personalities surfaced during the interview between Ms Kruger and Dr Sullivan. Dr Sullivan referred to and considered the other professional reports in the formulation of his opinion. He concluded that Ms Kruger presented with a clear history of mood disorder with features of depression and anxiety. On his investigations there was no reported available history of manic or hyper-manic symptoms. He observed that she would meet the criteria for a diagnosis of recurrent depressive disorder; mild to moderate in severity. He observed significant features of anxiety spectrum disorders including post-traumatic stress disorder, associated with what he said was a recent, but possibly the 2016 motor vehicle accident, and possibly associated, he opined with earlier traumatic events.
Dr Sullivan indicated there was no clear evidence of a personality disorder, observing that notwithstanding reported adverse childhood experiences,
Ms Kruger appears to have been successful in developing employment, sustaining friendships and leisure activities. He observed no evidence of psychotic illness nor cognitive impairment. With respect to the presumed diagnosis of dissociative identity disorder, Dr Sullivan observed that the diagnosis is associated with some controversy and is rarely diagnosed in public mental health settings. He observed that the controversy is associated with the suggestibility of patients and the role of therapists in elaborating the diagnosis.
He said the diagnosis relied on a range of psychodynamic explanations which are inherently unverifiable, but which provide a theoretical explanation for the effects of traumatic experiences, and their effects on developing personality structures. Dr Sullivan observed that Ms Kruger agreed with the diagnosis of dissociative identity disorder, and I take from that that at this stage, that is, the stage of the interview with Dr Sullivan, Ms Kruger believes that she suffers from that disorder. This belief after many years of discussion; perhaps education and therapy, especially with the assistance of Ms Scanlan, is not necessarily indicative that the disorder exists itself, nor that it does not exist. Ms Kruger's belief that she has the order at this stage, does nothing to assist the finding as to whether the disorder existed at the time of the offending.
Dr Sullivan observes that Ms Kruger provides a range of details consistent with the diagnosis of dissociative identity disorder, and he observed that it was validated by several clinicians. He observes that this appears reasonable on the information provided, but can alternatively be considered as a post-hoc explanation of life's difficulties. He further observes that the diagnosis is more problematic as it has been made after what he said, criminal charges had been laid, and the diagnosis purports to provide and exculpatory explanation.
In this regard, I observe that the diagnosis was apparently made before the criminal charges were laid, but well after the offending was discovered, and after she had signed a deed providing that if the theft was over a particular limit then police would be informed. In summary, Dr Sullivan does not accept that at the time of the offending, Ms Kruger was experiencing an associative identity disorder. As noted, the alternative explanation is that this presentation has arisen as a result of education and therapy, possibly from Ms Scanlan and supported by subsequent psychological and psychiatric therapy.
Dr Sullivan's report is thorough. It is well supported by reasoning. Unlike some other reports I have referred to above, he is well qualified to the draw the conclusions that he has. He acknowledged and agreed to be bound by the expert rules relating to Court reports, and further indicated that he had made appropriate investigations in order to do so. This is a careful, independent, and thorough report, and I accept the conclusions therein.
DR RAKOV
The next report in time was by Dr Jacqueline Rakov who prepared two reports, 24 and 27 March of this year. She reviewed all of the previous reports and also had a 110 minute video consultation with Ms Kruger. Dr Rakov confirmed the diagnosis of complex post-traumatic stress disorder, depression, and anxiety. She doubted the diagnosis of dissociative identity disorder, observing that it was observed to emerge after the discrepancies in the accounts were discovered, and as noted, the likelihood of police being involved.
This observation supports the observations of Dr Turnbull and Dr Sullivan.
Dr Rakov's later report confirmed this view, notwithstanding that charges had not been laid by the time the "diagnosis" was made by Ms Scanlan. In agreeing with Dr Sullivan's observations, she said, 'Literature around dissociative identity disorder suggest that various identities are created within an individual's mind to cope with experiences that would otherwise simply be too psychologically distressing for oneself to tolerate.' Further on, Dr Rakov observed, 'Regardless of whether the network of intra-psychic relationships described by Ms Kruger is real or imagined present, or absent, the narrative presented appears to have served her primary resource to reconcile and cope with the subjectively unbearable reality she faces.' In coming to this conclusion, the doctor observed the implausibility that Ms Kruger overlooked significant discrepancies in the accounts of her employer as well as the arrival of funds into her 13 accounts, given both the magnitude and duration of these transactions.
I observe the potential for the "unbearable reality" she faces, may well be the fact that she has been discovered in this major ongoing theft, and at some stage a day much like today was going to arrive.
SUMMARY
Therefore, there is no acceptable evidence to support a finding even on balance, that at the time of the offending Ms Kruger was suffering from a mental impairment such as to reduce her moral culpability for the offending behaviour.
MEDICAL CONDITION, DIFFICULTIES IN CUSTODY
However, several doctors including Dr Rakov observed that her poor physical and mental health otherwise given the difficulties and limitations in access to care in prison may well weight more heavily on her than someone without her conditions. Dr Rakov as some consultative experience with offenders who are in custody. I have a number of medical reports relating to Ms Kruger's difficult physical health. These include Associate Professor Anna Braue. She has diagnosed a melanoma stage one, which has been excised, and there has been no recurrence. She has also diagnosed a mild psoriasis on her elbows. Dr Newman, a general practitioner has noted chronic pain as a result of multiple severe injuries following a motor vehicle accident in 2016.
Dr John Monagle, anaesthetist has noted persistent back pain after a car accident, and degenerative changes in her spine, and Dr Young, urogynecologist has noted an overactive bladder, residual silicone sling considerations, and a removal of an ovarian cyst. I observe that Ms Kruger's current medication includes strong analgesics. The prosecution do not dispute that Ms Kruger's current health, including physical ill health may make her time in custody difficult for her - perhaps more so than someone without such presentations. As such, some of the Verdins principles may be relevant, in that item 4 of the Verdins principles, the existence of an impairment at the time of sentencing or its reasonably foreseeable occurrence may mean that a specific sentence may weigh may more heavily on the offender than it would on a person with normal health, and that is exactly what Dr Rakov has observed.
In this context however, I note above that the defence position sensibly is that a custodial sentence is inevitable.
The next principle to take into account, is for the Court to consider if there is a serious risk that imprisonment will have a significantly adverse impact on the offender's mental health. This will be, according to the Verdins principles, a mitigating factor. Ms Kruger's various treating psychologists, psychiatrist, and general practitioner each opine that a custodial environment will be detrimental to Ms Kruger's already fragile mental health. In addition to Dr Rakov, her treating psychologist and psychiatrist both state that imprisonment will cause increased suicide risk. Dr Rakov raises concerns about the availability of psychological therapy in a custodial environment, observing that Ms Kruger is likely to struggle to cope with both the reality of the circumstances that led her to custody, and the custodial environment herself.
As noted above, there is very little evidence of how the current presentation or mental health presentation of Ms Kruger will make her time in custody more difficult. Importantly, Dr Sullivan, who is a practitioner who has experience in the corrective system, has provided some information. As noted above, Dr Sullivan currently is the executive director of clinical services at the Victorian Institute of Forensic Mental Health. He is well placed to provide such information. He opines that Ms Kruger should be able to avail herself of support through nursing staff, various counselling psychology options and programs.
He concedes that they may not be as accessible as in the community. He noted that there is a facility to accommodate women in settings which provide extra support if this is considered necessary, such as Rosewood or the Marmack Unit. He notes however that at the time of assessment he would not have considered this necessary, but he concedes that circumstances may always change. He also helpfully observed that given the nature of her offending and her mental health profile, she may be eligible to transfer to the Tarrengower Prison, which he suggests is a relatively humane and therapeutic prison. I observe separate to all of this information, that it is the obligation and the duty of corrective services to provide appropriate physical and mental health care for all inmates in their care. I accept that custody is likely to be more burdensome for Ms Kruger than for a person not suffering from her physical and mental health difficulties as I think summarised appropriately by Dr Sullivan.
This would have some moderating effect on the sentence to be imposed, both on the head sentence and on the non-parole period.
Insofar as other matters are relevant to the sentencing process and have not been referred to, these are as follows.
PREVIOUS GOOD CHARACTER
Ms Kruger has no prior criminal history. There is nothing alleged since she was charged with these matters in 2017. The is a mature, first time offender who is otherwise of good character.
However, while this will be of benefit to her, and will result in some leniency, it is observed that her very good character allowed her to be employed in this position in the first place.
RESTITUTION
In 2015, Ms Kruger sold her home and business, and paid the proceeds of these sales to Triangle Waterquip Pty Ltd as restitution. As I noted above, $584,000 approximately was repaid, and $3,245,910.29 remains outstanding. There is no information before the Court as to where the money went after it was removed from Triangle Waterquip's accounts, apart from going into accounts in Ms Kruger's name. I'm told there has been some forensic investigation, but not information at all as to the disposal of that money.
In relation to the issue of the purpose of the offending and moral culpability other than mental health considerations, in some submission by defence counsel it was suggested that funds went for the purpose of Ms Kruger's private business concerns which were apparently quite extensive at some stage. Other suggestions are that in order to ingratiate herself with her birth family, she might have given them some funds. Other suggestions are that she might have paid money to friends. The suggestion that she gave money to family except perhaps her daughter, is not supported by her self-report to therapists as she says that she has not been in contact with her extended family since 2007.
Ms Kruger is still in contact with her father apparently. It was submitted that if any money was given to family in those circumstances then it is related to
her (that is Ms Kruger's) needy and abusive background and her need to please her family members, therefore related to her poor mental health presentation. In the absence of any evidence that money was so diverted, this is sheer speculation. In any event such payments, if made, to her business or family are for the purpose of her own personal benefit in some way. It cannot be said that there was a pressing benevolent need existing elsewhere.
In December 2015, Ms Kruger was declared bankrupt. It is submitted that in those circumstances, a restitution order ought not to be made. It is submitted that should Ms Kruger come into funds in the future then the victim company can take civil proceedings to recover monies stolen from them. The circumstances of this case are somewhat unusual. There is no indication from Ms Kruger as to where or how or to whom the bulk of the funds were ultimately distributed. She says she no longer has any funds. The prosecution investigation have not been able to uncover any funds either. I find this surprising, however, that is the position I am faced with. In the circumstances of this case, it would be most unfair in my view if the victims of all of these crimes, had to pursue a civil judgement in order to take the first step to recoup monies that have been taken from them, if those monies are ever located. I accept there will be some work to do if the funds are located in the circumstances of this case, but there is no reason not to make an order for restitution, and I propose to do so.
I don't know if the prosecution has given us details of where that money is to be paid; we need that for the order in due course.
REMORSE
It is submitted that Ms Kruger is deeply remorseful in some way for this offending. The reports of Dr Solinski provide some evidence of remorse, however such remorse is coloured by the assumption and indeed statement that it was Witchy who did the thefts. I observe that in some reports, the personality Witchy indicates that the victims got what they deserved. She is most unremorseful. Ms Kruger's plea of guilt is some evidence of remorse, but Ms Kruger's insight is limited. Her lack of remorse however in the circumstances of this offence is of little importance and is not an aggravating circumstance in any way. I will take into account the remorse that she has expressed so far.
I accept that insofar as is possible to understand, Ms Kruger is unlikely to reoffend. At the conclusion of her sentence, she will have a record for these thefts and is unlikely to be permitted access to other people's bank accounts in the future. I accept that she currently has an improved understanding of her psychological difficulties, whether it includes dissociative identity disorder or not.
There is some disagreement whether her condition, if it exists, is treatable, however her other presentations such as depressive illness, post-traumatic stress disorder may well be capable of improvement over time.
SENTENCE SUBMISSIONS
It was sensibly conceded that an immediate custodial sentence must be imposed. It is noted that a suspended sentence was technically available as a sentencing option for Charges 1 to 6, given those charges were committed prior to September 2013. However in the circumstances of these offences, even if a suspended sentence were available today, it would not be an appropriate disposition, and I observe it would not have been an appropriate disposition had I been sentencing these matters in 2013 either.
I note that an early guilty plea was entered after lengthy but appropriate negotiations. In spite of my observations above about the delay being caused by further applications by Ms Kruger, and appropriate discount for a plea of guilty should still be given and there is some benefit of that plea. There has been I understand no pre-sentence detention, therefore the sentences that are imposed today will commence today. Each of the sentenced on each of the separate accounts must be accumulated on the base, or the previous charge. The offending was effectively, although not as meant in the Act, effectively a continuous course of conduct over a period of eight years, and there must be some accumulation of each sentence in order to reflect that significant offending over such a long time.
Ms Kruger you can remain sitting if you'd be more comfortable or you can stand up - are you able to stand up now. I'm going to impose the sentence now, thank you:
The sentence in relation to Count 1, that between 3 January 2008 and
23 December 2008, stole the sum of $252,334.81, I sentence you to a term of imprisonment of three years.
Charge 2, that between 13 January 2009 and 22 December 2009, stole the sum of $701,440.94, I sentence you to a term of imprisonment of 3 years with four months accumulation on the base sentence.
Charge 3, that is between 5 January 2010 and 23 December 2010, stole the sum of $509,7083.31, I sentence you to a term of imprisonment of three years, with a four month accumulation on the base sentence.
Charge 4, between 20 January 2011 and 22 December 2011, stole the sum of $710,739.32, I sentence you to a period of imprisonment of three years, again with a further four months' accumulation.
Charge 5, between 12 January 2012 and 20 December 2012, stole the sum of $666,987.39, I sentence you to a term of three years, again with a further four months' accumulation.

Charge 6, that is between 2 January 2013 and 9 December 2013, stole the sum of $522,118.92, I sentence you to a term of imprisonment of three years with a further accumulation of four months on that matter.
Charge 7, that between 7 January 2014 and 19 December 2014, you stole the sum of $745,371.42, I sentence you to a term of imprisonment of three years with a four month accumulation.
Charge 8, that between 7 January 2015 and 18 February 2015, stole the sum of $71,896.82, I sentence you to a term of imprisonment of three years, with again a four month accumulation on the prior sentence. On my calculation the total effective sentence is five years and four months. I propose a non-parole period of four years relevant to that total sentence.
In relation to the early plea of guilty, I indicate that save for the plea of guilty, I would have imposed a sentence of seven years, and I formally make an order for restitution in the sum previously indicated.
MR SINGH: Your Honour we'll email your learned associate the order and the correct figure and the nominated party.
HER HONOUR: Thank you very much.
MR SINGH: This afternoon if that's convenient to the Court.
HER HONOUR: That would be convenient, yes.

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[2022] VCC 486

7 April 2022