Director of Public Prosecutions v Krywyn
[2015] VCC 1361
•25 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -14-01422
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAURICE CHARLES KRYWYN SAM MCGOWAN |
---
| JUDGE: | HIS HONOUR JUDGE MAIDMENT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 25 September 2015 |
| CASE MAY BE CITED AS: | DPP v Krywyn |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1361 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Ballek | |
| For Accused Krywyn | Ms A. Brennan | |
| For Accused McGowan | Ms C. Morris |
HIS HONOUR:
1Maurice Charles Krywyn and Sam McGowan, you have each pleaded guilty to a separate indictment, charging you with kidnapping, between 25 March 2014 and 26 March 2014.
2The charges in each case arose out of the same incident, to which I will go in a moment.
3Each of you have admitted prior court appearances and convictions. The prosecution tendered and relied upon a summary of prosecution opening, which is Exhibit A on the plea hearing, and that was read at an earlier hearing. I am not going to read it again. I incorporate it in its entirety into these reasons for sentence.
4
Suffice to say that the outline summary sets out some history between each of you and your victim, Todorovic. There was a background which involved mutual use of the drug, methylamphetamine, otherwise known as ice, and resulted in the attendance of each of you at the home of a
Ms Schembri. Mr Todorovic, who had been induced to come over to the house, arrived in his motorcar, parked in the driveway and not long afterwards, was approached by the two of you, who had, by that time, arrived at the house in another vehicle.
5You, Mr Krywyn, parked your car in the way that prevented Mr Todorovic departing the premises in his car and approached him whilst he was sitting in the car and demanded that he got out. He refused and locked all doors. You, McGowan, carrying a stolen pump-action rifle, Point 308 calibre, then approached the front passenger side door, tried to open it. You then walked round to the driver's door, demanded that he got out. You, Krywyn, reached into the car, attempted to unlock the car when Mr Todorovic wound the window down partially. You, McGowan, then tapped the window on the driver's side with the barrel of the rifle and Mr Todorovic was told that you would shoot him if he did not step out of the car. He then stepped out of the car. He was marched at gunpoint to your car, Krywyn, and made to sit in the front passenger's seat. You, McGowan, sat behind and continued to point the gun at Mr Todorovic.
6There then followed a period during which you told Mr Todorovic that you wished to collect a motorbike from him. You took both of his mobile phones and you then drove with him to a storage shed in Melton, where the motorcycle was apparently stored. Attempts to gain entry to the storage unit failed and a visit was paid to a house in Brookfield to obtain some tools to gain access to the storage facility. Both of you made it clear to Mr Todorovic that he should not try and get away, or that you would shoot him.
7At about 3 o'clock in the morning, you checked into a motel in Footscray and remained there until shortly after 10 am. You were joined by Ms Schembri and apparently consumed methylamphetamine during the course of the night with Mr Todorovic. Shortly after 10 o'clock in the morning, you checked out of the motel and left with you, Krywyn, driving in your car. Attempts were made by police to intercept you. You sought to evade police and eventually you were intercepted. The pump-action rifle, to which I have already referred, was located in the boot of the vehicle, along with two cartridge magazines containing .308 calibre ammunition.
8Because of injuries received during the course of the interception by police, you were each taken to the Alfred Hospital. You were not interviewed by police. Each of you have now pleaded guilty to the offences. You, McGowan, were in breach of youth parole at the time you engaged in this offending conduct, having been released on parole from a youth justice centre order imposed by this court in November 2013. On 3 February 2014, that is about seven weeks prior to this offending conduct, you also breached, by committing this offence, breached a Children's Court probation order and a Children's Court good behaviour bond.
9
You, Krywyn, in committing this offence, breached two separate Magistrates' Court suspended sentences imposed respectively on 22 October 2013 and
6 February 2014.
10Each of you have pleaded guilty. You were originally charged with other offences and you are to be given credit for this plea, which clearly was a negotiated plea, which was indicated in May of this year.
11You, McGowan, elected to participate in the Koori Court jurisdiction of this court, and indeed, did so.
12
Turning to matters personal to each of you, and beginning with you,
Mr Krywyn. Your counsel provided me with an outline of plea submissions, which are Exhibit K1, and also a report, dated 24 July 2015, of
Dr Cunningham, forensic psychologist, which is Exhibit K2. I was invited to consider a community corrections order in your case and I ordered that you be assessed and I have a pre-sentence report, dated 9 September 2015, which finds you suitable, albeit that you were assessed as having a high risk of general re-offending.
13You are now 44 years of age, 42 at the time of the offending. You come from a good background. You still have family support. You seem to have had a relatively unremarkable educational background, and indeed, demonstrated a capacity for hard work and were successful in your employment, up to about 12 months or so prior to this offending conduct, and you were unemployed for that period of time.
14You have had, essentially, three significant relationships with women in your life. The first produced two children, Darcy, aged 22 and Chanelle, aged 20, and that relationship lasted for something in the order of 19 years, I think.
15You were then in a relationship with Natalie for a period of five years and had a third child, who is now aged three. I am told that you have received visits in prison, whilst you have been on remand, from both Kylie and Natalie, and certainly your adult children, perhaps Blaze also.
16It seems that the period of unemployment coincided with your final relationship with Ermalina, who was apparently a user of methylamphetamine. You became heavily involved in the use of methylamphetamine during that period and were indeed heavily involved and as I understand it, had obtained drugs through Mr Todorovic during the period leading up to the offending conduct.
17In common with many people, unfortunately, the use of the drug ice does tend to lead to a significant deterioration in people's lives and people start offending in ways that they have not offended previously. You have an unenviable criminal record, but by no means as serious as some. This would seem to me to represent something of an escalation in your criminal conduct and it seems to me that the use of ice during that period and your unstable lifestyle, living in caravans and motels and so on, will have contributed to the context in which the offending occurred.
18
The problem you still have is the risk of you relapsing into ice use once you are released from custody. Whilst your criminal record would suggest that the assessment that you are at high risk of general re-offending may well be accurate on that basis alone, unless you are able to stay away from ice, then it seems to me, it would be highly probable that you will
re-offend. You have had a chance, no doubt, to reflect on those matters during your period on remand and I hope that that has assisted you in forming a new resolve to avoid this kind of substance abuse that led you ultimately to use the drug, ice.
19You do have a history of drug abuse, going back many years, albeit not with the same severity or effect as in the 12 months prior to your offending conduct. If you are able to get on top of that drug abuse problem, then your prospects of rehabilitation will improve dramatically. I do not think you need me to lecture you on that, but at the moment, it is difficult to see that the assessment by the Department of Justice Community Corrections officers is anything other than accurate.
20You have had various community corrections orders in the past and dealt with some of those successfully and others not so successfully. It seems to me that frankly the offending is such that a term of imprisonment exceeding that which would permit me to impose a community corrections order, is the only appropriate order. This offence was a serious offence of its kind. The kidnapping occurred over a period of something in the order of 12 hours. It is aggravated by the use of a rifle. Whether the rifle was loaded or not, the victim had no means of knowing and it is the kind of conduct that would have induced, at least initially, a high degree of fear on his part, and it is offending conduct that must attract, not just just punishment and denunciation, but proper regard to elements of general deterrence, and I think also individual deterrence.
21That said, I am bound to and do, take into account the need to assist you with your rehabilitation, promote your rehabilitation and to give you proper credit for you plea of guilty. There do not seem to be any mental health issues or anything of that kind that prevents you from a course of rehabilitation. I am intending to impose a sentence that I would regard for this offending conduct, with the aggravating features, to which I have referred, as relatively modest and one which will permit you a reasonable period of time on parole to receive assistance with your rehabilitation, should you qualify for parole.
22I might say that I see no reason to distinguish between you and Mr McGowan, in terms of your role in the offending conduct, and before I leave your case to proceed to his, I say, in respect of both, that his record, I think, is significantly worse than yours, in terms of having more serious offending conduct. You are an older man. I see no reason to load you up with a heavier sentence because of that fact and I do not propose ultimately to distinguish between the two of you either, in identifying your individual roles in the offending conduct, or indeed in the sentence that I intend to impose.
23Moving to you, Mr McGowan. You have not had the benefit of a stable upbringing, of the kind that Mr Krywyn was fortunate enough to enjoy. You have had very significant difficulties with schooling and with stability in your life. I have been provided by your counsel with a helpful outline of submissions, a report from Dr Rani Jacobs, psychologist, for which you were assessed in August and October 2013, and a report from Carla Lechner, psychologist, dated 31 July 2013. Although they are somewhat out of date, they show a deal about your background and your intellectual capacity and your history, which shows a deprived background.
24Your counsel has invited me to take into account your Aboriginality and I do. I think that from her submissions, it is appropriate I should mention the decision of the Supreme Court, to which she referred, in the course of her submissions, that of R v Fuller-Cust [2002] VSCA 168, in which Eames J dealt with the relevance of, in that particular case, of Aboriginality. Although it is not suggested the circumstances of the offender in that case are by any means identical with yours, it seems to me appropriate that I should take into account his comments, and indeed, the disrupted background that you have had.
25I was also provided with a letter from your uncle, Glen McGowan. That supports what I have just said about your background. It is extremely difficult if you have had a life without a stable upbringing and a constant source of good role models, appropriate discipline at various times, to have a clear sense of boundaries and I think that that needs to be properly taken into account.
26Unfortunately you have built up a pretty bad criminal record for a young man. A number of the offences of which you have been convicted are serious offences and this, I think, has to be seen in the context of your background. You participated fully in this offending conduct and it seems to me that there is nothing to distinguish your role from that of Mr Krywyn. I certainly do not regard your youth as being any kind of excuse for the part that you played in it.
27The report from the Department of Health and Human Services, pre-sentence report, suggests that you do have a degree of street wisdom, which should have enabled you to determine the risk factors involved in your conduct. Whilst one acknowledges that you do have difficulty in impulse control and a tendency towards substance abuse as an escape from the emotional difficulties from which you clearly suffer.
28Unfortunately it does suggest that your prospects of rehabilitation at the present time are not good. I would like to see a more positive side. Perhaps there is some positive to be gleaned from the report of the assessing officer, on p.5, under the heading, "Current situation", in which the author of the report described you as "polite and respectful" during the interview and you engaged well with the writer and seemed to show some regret for what you have missed out on as a result of your offending conduct over the years, and a more clear view of the future, because of the fact that you were drug free. On what you said to the author of the report, that you had been offered drugs whilst on remand and had knocked them back.
29It may be that there is to be gleaned from that, a glimmer of hope. Unfortunately there are also some negatives in the report about you having been involved in, seemingly, a large number of incidents during your period in custody on remand. That does not, in itself, bode terribly well for your prospects of rehabilitation.
30I had hoped that there would have been sufficient positives to be gleaned to have permitted the authors of the report to have recommend a youth justice centre order. But the opposite is the case. On balance, you having had opportunities with Youth Justice in the past and certainly up to now having shown little regard for taking advantage of opportunities that have been offered, it is appropriate that I do not order a youth justice centre order. Particularly since you are almost 21 and seem to be well able to handle yourself within the adult system. I am not suggesting that the adult system is ideal by any means, but it seems to be an environment in which you seem to function adequately. And I think it is necessary for me to impose a term of imprisonment that exceeds that which would permit me to put you on a community corrections order.
31The other factor that militated against ordering you to be assessed for a community corrections order is that, it seems to me that it is likely that it would simply set you up to fail. I think putting you on a community corrections order at this stage would almost certainly result in you breaching it. And it did not seem to me that in any event, the offending conduct would permit that. So for those reasons I did not seek to have you assessed for a community corrections order.
32You are still a young man and I take that into account. But with your criminal record, it is necessary, I think, not only to look to general deterrence, individual deterrence, just punishment and denunciation, but also to some degree, public protection. Although youth ordinarily would play a significant part in a reduction of sentence and the courts are always reluctant to put a young person into adult prison, in your particular case, the reasons I have outlined, there is no reason to distinguish you from your co-offender, in terms of sentencing.
33I think that it would have mattered little, in the ultimate outcome, in terms of your period in custody, whether it had been a youth justice centre order or a straight sentence of imprisonment with a non-parole period, because the order that I have in mind would be equivalent of what I had in mind for the youth justice centre order. Balancing all of those factors I am now ready to pass sentence upon each of you.
34Mr Krywyn, would you stand please.
35For the offence of kidnapping for which you pleaded guilty, I sentence you to imprisonment for a period of three years, with a non-parole period of two years.
36I declare 549 days of pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively from that sentence.
37But for you plea of guilty, I would have sentenced you to four years' imprisonment, with a non-parole period of three years.
38I make the disposal order and the forfeiture order in the terms that the draft with which I have been provided.
39All right, you can take a seat, thank you.
40Mr McGowan, would you stand please.
41
For the offence of kidnapping to which you have pleaded guilty, I convict you and sentence you to imprisonment for a period of three years, with a
non-parole period of two years.
42I declare 549 days pre-sentence detention as time to be deducted from the sentence that I have imposed.
43I order that that fact and indeed the fact in respect of Mr Krywyn be noted in the records of the court.
44But for you plea of guilty, I would have sentenced you to four years' imprisonment, with a non-parole period of three years.
45In each case, it means that you will be eligible for parole in about six months' time. Whether you get it or not will depend very much on your conduct between now and then. That will then give you a period of 12 months' on parole, if you qualify, and hopefully you will make use of that period to further your rehabilitation.
46Any other orders I need make?
47COUNSEL: No, Your Honour.
48HIS HONOUR: Yes, thank you.
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