Director of Public Prosecutions v Kruzenga
[2012] VCC 1244
•31 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID KRUZENGA |
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JUDGE: | HER HONOUR JUDGE SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 31 August 2012 | |
CASE MAY BE CITED AS: | DPP v Kruzenga | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1244 | |
REASONS FOR SENTENCE
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Catchwords: Armed robbery on a bank employee-shortening barrel of longarm-plea of guilty-no criminal history
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr O'Halloran | Office of Public Prosecutions |
| For the Accused | Ms T. Hartnett | X |
HER HONOUR:
1 David Kruzenga, you have pleaded guilty to a charge of armed robbery, which has a maximum sentence of 25 years’ imprisonment, and to a charge of shortening the barrel of a long arm, which has a maximum penalty of 4 years’ imprisonment or 240 penalty units.
The offences
2 I sentence you on the basis of the opening which was read by the prosecutor (Exhibit A).
3 In summary, on 23 March 2012, you took a double barrelled shotgun from a gun safe at your father’s licensed gunshop, without his knowledge or permission, and returned home, where you shortened the barrel of the gun to make it easier to conceal (Charge 2). The next morning, a Saturday, you committed an armed robbery using the shortened shotgun on a branch of the National Australia Bank at Camberwell. You stole just over $2700 from the teller, who you threatened with the gun by pointing it at him and laying it on top of the counter with your hand on it (Charge 1).
4 When interviewed by police after your arrest on 10 April 2012, you said that you committed the offences to obtain enough money to pay for legal representation in a case proceeding in Canberra on 29 March. You showed police where you said you had buried the money, in the yard of the flats where you were living with your mother, and said you had not touched it since. A search of that area of ground did not turn up any money.
5 You had been charged with an offence in Canberra arising out of a false statement you made to police in January 2012. The statement was made in support of a woman with whom you were then in a relationship, in an attempt to assist her in an investigation by the Child Protection Service in which it was alleged that she left her children unsupervised. You falsely stated that the children were in your care for a period of time.
6 You had been quoted more than $4000 for the legal representation. Instead of seeking assistance from your family, you made the extraordinary decision to get the money by robbing a bank with a sawn-off double barrelled shotgun.
Impact on the victim
7 I received a victim impact statement from the teller. As he did not express a wish to have his statement read aloud in court, I will not refer to it in detail, nor will I mention his name in these remarks, although it was mentioned in court. I mean him no disrespect in doing this; I am trying to lessen the impact by not having his name forever publicly tied to the offending in these sentencing reasons.
8 I would not have needed a statement to tell me how such a serious offence as an armed robbery has affected him. However, I have carefully read his own words about this. He has suffered considerably as a result of your actions, including having difficulty sleeping, anxiety, nervousness, stress and an increased potential for depression. I am pleased to see that he has taken the offered support to assist in coping with the impact of the offending, and that he has bravely returned to work. This would not have been easy, and I acknowledge his bravery. I take into account all of the matters that he referred to in his impact statement in deciding the appropriate sentence.
9 Bank tellers are in a particularly vulnerable position, as they are directly involved with handling large amounts of cash, and deal directly with the public. They are therefore directly a target for someone intending to obtain that cash illegally. People in that position are entitled to feel protected by the law, and to expect that there will be a stern sentence of imprisonment imposed if their vulnerable position is exploited.
Basis for sentencing
10 I sentence you on the following bases:
11 First, your actions were conscious, deliberate and purposeful, and you were well aware of the consequences. Indeed, you sought to avoid these consequences by use of a disguise and removal of identifying jewellery.
12 Next, your crimes are made more serious by the following facts about which I am satisfied beyond reasonable doubt:
· There was a high degree of planning and preparation in the days leading up to the offences, in that you:
▪ obtained a wig for disguise;
▪ obtained the weapon and shortened it;
▪ made a considered selection of your target on the basis of it being a bank with two entry/exit points;
▪
chose a day when there were less people likely to be banking and
therefore likely to be less witnesses;
▪ waited outside the bank for about 40 minutes before entering; and
▪ pretended to talk on a mobile phone in the bank while looking around and waiting for the teller to become free;
· You used a disguise including sunglasses; and
· The armed robbery involved the use of a weapon at close range by pointing it at the victim, as compared to committing the armed robbery by merely having the weapon on you.
Factors in mitigation and personal circumstances
13 There are some mitigating factors which I must, and do, take into account.
14 The first matter is that you have pleaded guilty. I also take into account that you pleaded guilty at an early stage of proceedings, while your case was still in the Magistrates’ Court. By your early plea of guilty, the community has been spared the time and cost of a trial, and your victim has been spared the ordeal of giving evidence, both at committal and at trial. Even though the case against you was extremely strong, I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty of these offences after a trial.
15 I accept that your early plea is an expression of how remorseful you are for your crimes. I also accept your remarks in the interview with police recognising the effect of your actions on your victim are further expressions of your remorse.
16 Your brother and father are to be commended for the enquiries they made and the actions they took once they suspected your involvement. It must have been very hard for them as they uncovered the evidence that you had committed this serious offence, particularly given that you had committed no crimes in the past. It is a credit to them that they pursued the honest course. It is also in your favour that you have such upstanding people in your family for you to return to for support on your release.
17 I take into account that when you were confronted by your brother, you admitted the offence and gave him the shotgun in pieces. When he provided the gun and information about you to the police, you were arrested peacefully and you admitted your involvement. While you initially told police that the weapon you used was a replica gun you had made up out of pipes, you later admitted it was a real shotgun.
18 I accept in your favour that the gun was not loaded although, as conceded by counsel on your behalf, that was not known to the teller and I note that he feared he would be shot.
19 I also accept that there were some aspects of your offending that were not sophisticated: your disguise was obvious and you used your mother’s car to travel to and from the scene of the crime. It was also put that the fact that you chose a target not far from your home showed the lack of sophistication. It could also be said that knowledge of the area gave you better means of escape via back roads.
20 As you have not been convicted of an offence before, I will sentence you today as a person of previous good character. It is unusual for that to be said for someone facing a sentence of armed robbery. The case in Canberra has been adjourned, presumably to await the outcome of today.
21 I take into account the references that were provided to me by those who have known you for a long time and known you not as a person who has committed serious criminal offences. Your family are naturally devastated by these events.
22 I received a report from Dr Cunningham, forensic psychologist, who found you have no mental health issues, are of average intelligence, and are at moderate risk of re-offending. I accept all of those matters. He diagnosed you as suffering from a Dysthymic Disorder with chronic depressed mood. You told him you were previously diagnosed with depression about six years ago. Dr Cunningham is of the opinion that you should receive treatment for this disorder. Your counsel conceded that may be available to you in custody, and submitted that it would be desirable if you could continue after your release, as part of your rehabilitation. I acknowledge that you are to be encouraged in seeking that treatment.
23 I have been told something of your personal circumstances. You are now aged 30, as you were at the time of the offending. You have an older brother and a younger sister. Your parents separated when you were aged six, and your childhood was mostly spent living with your mother. There were some unstable times during your childhood. Later, you had more contact with your father, and that has continued. All of your family, and a number of friends, were in court to support you. Your family regularly visit you in gaol.
24 You have had a number of relationships, but the most important one produced a daughter, who is now aged six. You have remained friendly with her mother, who was also in court and, until you were arrested, you were sharing parental duties. I accept that separation from your daughter, and she from you without her knowing why, is difficult. It is unfortunately all too common; people commit an offence without thinking of the effect on others completely unconnected with the crime. You do talk to her on the telephone every day.
25 You have had a reasonable work history. You all but completed a roof tiling apprenticeship, which you would like to finish, and you have worked in jobs involving physical labour. You have spent some time caring for your mother who has a number of mental and physical health issues. Your father has arranged potential employment for you with a stonemason on your release, and I received a reference from that potential employer to confirm that.
26 I take into account that this is not only your first conviction, but also your first time in gaol. You have been moved around in the four months or so you have been in custody, including a period of 11 days spent in police cells. Since you have been at the Metropolitan Remand Centre, you have used your time productively and in keeping active, either doing courses, working in the kitchen, or playing volleyball and attending the gym. I received a bundle of certificates for the courses you have completed. I am told you intend to continue to use your time in custody well.
Ancillary orders
27 Application has been made for the retention of an intimate forensic sample previously taken from you and you have not objected to this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offences, that in all the circumstances, I order the retention of that sample.
28 Application has also been made for compensation to the National Australia Bank in the amount $2740, and for forfeiture of the shotgun and backpack used in the offences. You have not opposed these, and I will sign those orders.
Submissions
29 The prosecution submitted that your offending had a higher degree of seriousness because it involved the use of a shotgun in the robbery of a bank. I was helpfully referred to two cases from the Court of Appeal. It was submitted that the only appropriate sentence was one of imprisonment, and the range put forward was five to seven years with a minimum term of three to four and a half years.
30 Your counsel conceded that imprisonment was the only option, and that the factors put forward by the prosecution were not in dispute. It was submitted that the case of Gregory[1] was most helpful, and that none of the severely aggravating features of armed robbery referred to in paragraph 12 of that case were present here. It was conceded that some cumulation was necessary between the two offences, but your counsel submitted that considering the factors in your favour, the overall sentence should provide for a reasonable period of parole to enable you to maximise your chances of rehabilitation.
[1] R v Gregory [2001] VSCA 32
Findings
31 Apart from the findings I have expressed during these reasons, I make the following further findings:
· I find that, unlike many armed robberies, your motivation was not one fuelled by drugs, alcohol or a gambling addiction;
· No severely aggravating features as referred to in Gregory were present;
· Because you could not have committed the armed robbery in the way that you did without committing the other offence of shortening the barrels so that the shotgun could be hidden in your backpack until you drew it to frighten the teller, there will be considerable cumulation between Charges 1 and 2;
· You have good prospects for rehabilitation, given the support of family and friends, your capacity and willingness to work, and your previous good character;
· These factors also mean that deterring you from re-offending is not as important a sentencing principle, although it remains of some weight;
· As you have been assessed as a moderate risk of re-offending, which I accept, the protection of the community remains an important consideration;
· By my sentence, I must seek to deter others from resorting to serious criminal offences involving firearms as an easy way to access money; and
· Adopting the description from the case of Gregory[2], this was a premeditated armed robbery of a bank by use of a sawn-off shotgun which placed a person in great fear and deserves substantial imprisonment.
[2] Paragraph 12
Sentence
32 You are convicted and sentenced as follows:
· Charge 1: armed robbery – 5 years imprisonment
· Charge 2: Shortening a long arm - 18 months imprisonment
33 Charge 1 is the base sentence. I direct that 12 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
34 That results in an effective sentence of 6 years imprisonment.
35 I direct that you serve a minimum term of 3 years 11 months before becoming eligible for parole. I have set this minimum term having regard to your previous good character and your good prospects of rehabilitation.
36 I declare that 143 days have been spent in custody not including today and these are to be deducted administratively from the sentence of imprisonment.
37 If you had not pleaded guilty but had been found guilty of these offences after a trial, the sentence I would have imposed is 8 years with a minimum of 6 years imprisonment.
38 I will make the ancillary orders when provided. Yes, is there anything further?
39 MR O'HALLORAN: No, Your Honour.
40 MS HARTNETT: No, Your Honour, thank you.
41 HER HONOUR: Yes, thank you. Kruzenga may be removed. Thank you, I will stand down until the next matter is ready.
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