R v Camilla Krutsky
[2013] ACTSC 297
•19 December 2013
R v CAMILLA KRUTSKY
[2013] ACTSC 297 (19 December 2013)
CRIMINAL LAW – Judgment and punishment – Sentencing – Aiding and abetting counselling the offence of robbery
Crimes (Sentence Administration) Act 2005 (ACT), s 7
Criminal Code 2002 (ACT), ss 45, 309
GAS v R (2004) 217 CLR 198
McKenna v R (1982) 7 WAR 455
R v Gordon (1994) 71 A Crim R 459
EX TEMPORE JUDGMENT
No. SCC 411 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 19 December 2013
IN THE SUPREME COURT OF THE )
) No. SCC 411/11
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
V
CAMILLA KRUTSKY
ORDER
Judge: Refshauge J
Date: 19 December 2013
Place: Canberra
THE COURT ORDERS THAT:
Camilla Krutsky be convicted of aiding and abetting, counselling and procuring Corey Martin to commit the offence of robbery between 3 February 2010 and 10 November 2010.
Camilla Krutsky be sentenced to two years imprisonment to commence on 19 December 2013.
The sentence be wholly suspended from today.
Ms Krutsky sign an undertaking to comply with the offenders’ good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years, with a probation condition, that she accept supervision of the Director‑General, or her delegate, for two years from today, or such lesser period as the person delegated to supervise Ms Krutsky considers appropriate, and obey all reasonable directions of the person delegated to supervise her.
It is essential when a court is sentencing an offender for a serious crime that due consideration is given to its seriousness, but that this still only results in a sentence that punishes the offender in a way that is just and appropriate, as required by s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). This is particularly difficult when the circumstances of the offender show matters of great seriousness, but which is not a part of the offending for which the sentence is to be imposed.
Thus, now standing for sentence is Camilla Krutsky, who has pleaded guilty to the offence of aiding, abetting, counselling and procuring Corey Martin to commit the offence of robbery. Ms Krutsky was not present at the robbery and did not directly participate in the acts that constituted the robbery. What is most serious and tragic is that the victim of the robbery, Andre Le Dinh, died as a result of the violence inflicted on him during the robbery. While that is a relevant circumstance, it is not a part of the culpability of Ms Krutsky that the terrible and tragic outcome resulted.
The offence of robbery is contrary to s 309 of the Criminal Code 2002 (ACT) (the Criminal Code) and renders an offender liable to a maximum penalty of 1400 penalty units; that is, a fine at the time of $154,000, or imprisonment for fourteen years, or both. Under s 45 of the Criminal Code a person who aids, abets, counsels or procures another to commit an offence is taken to have committed the offence and is liable to the maximum penalty for the offence. Thus, Ms Krutsky is liable to a maximum penalty for the offence of robbery, as I have set out above.
THE FACTS
Ms Krutsky is the daughter of co‑offender, Rebecca Krutsky. Ms Rebecca Krutsky was, in 2010, in a relationship with Corey Martin, who was the person who committed the robbery. In 2010 Ms Camilla Krutsky was living at the Oracle Apartments in Belconnen. These apartments are secure apartments which require an electronic swipe card to gain access and to the floors of the building. Around the time Ms Krutsky moved in, she met Mr Le Dinh, who told her that he was dealing in cannabis. Later she purchased cannabis from Mr Le Dinh and distributed it to another person. Mr Le Dinh provided Ms Krutsky with pounds of cannabis and sometimes he would weigh and vacuum pack the cannabis in her presence. In her dealings with him, Ms Krutsky saw where in his apartment Mr Le Dinh kept the cannabis he sold. In circumstances which were not entirely clear, she provided that information, whether directly or indirectly, which was then used by Mr Martin when he entered Mr Dinh’s apartment and robbed him.
On 20 April 2010, Mr Martin was released from prison and, on 18 May 2010, he came to Ms Krutsky’s apartment. Ms Krutsky and her boyfriend let him in and they had a conversation about the proposed robbery, about which Ms Krutsky clearly then knew. Ms Krutsky asked Mr Martin what he was going to do and he answered, “No, don’t worry, I’m not going to do anything. I will just knock him out a couple of times. I will just knock him out, and if he wakes up again, I will knock him out again, and then I will grab the stuff, and then I will go. I will do the raid tonight.” Ms Krutsky said, “Just go out the front door.” Mr Martin then left the apartment and went to Mr Le Dinh’s apartment, where he knocked on the door but there was no answer and so he left.
On 19 May 2010 Mr Martin telephoned Ms Krutsky and they met at the front of the apartment. She let him in and they went to her floor and into her apartment. Mr Martin asked whether Mr Le Dinh was at home. When Ms Krutsky said she did not know, he said that he was just going to do the robbery. He went to Mr Le Dinh’s apartment and entered it. He kicked Mr Le Dinh more than once. Ms Krutsky could hear the noise of the beating from her apartment. Later, Mr Martin left with cash and cannabis. Regrettably, tragically, Mr Le Dinh later died from the injuries he had received.
The next day Ms Krutsky asked Mr Martin to help her get a cheap car. Later that day Mr Martin purchased a motor vehicle, for which he paid cash. The statement of facts does not make it clear whether Ms Krutsky ever received that car. At some stage, not clear from the statement of facts, it appears the police searched Ms Krutsky’s apartment. She was interviewed by police on 27 May 2010 and 25 October 2010, but denied any knowledge of the robbery. She was arrested on 25 October 2010.
Initially she was charged with a conspiracy with Mr Martin to commit the robbery, with aiding and abetting the robbery, and with trafficking in cannabis. On 5 November 2010 she entered pleas of not guilty. After 16 further adjournments she was committed for trial on the first two charges to this court. The third charge was dealt with in the Magistrates Court in April 2012. On 16 August 2013 the prosecution presented a fresh indictment containing one count, that Ms Krutsky and Ms Rebecca Krutsky aided, abetted, procured and counselled Mr Martin to commit the offence of robbery. On 16 August 2013 Ms Krutsky pleaded guilty to that offence.
SUBJECTIVE CIRCUMSTANCES
Education, employment and relationship history
Ms Krutsky was born in Canberra to Ms Rebecca Krutsky, the only child of her mother’s then relationship, though her mother subsequently had five more children, one of whom died as an infant in 2008. When very young, Ms Krutsky was taken into care by her grandparents, who thought that she was living in an unsafe environment. She says, however, that she would have preferred to have remained with her mother, and she returned to her when she was given that option. She felt, however, that her grandfather was a good influence on her, though he was somewhat controlling. There was a problematic incident but their relationship improved, although unfortunately he died late last year.
Ms Krutsky has had a challenging childhood. She had little contact with her father because of severe injuries he sustained when she was very young, but he has improved so that she is now close to him, though it is difficult to have a great deal of contact as he lives in Brisbane. Though she returned to live with her mother from time to time, this did not work out well and she left home when she was fourteen. The relationship has been strained and is fraught at the present time. Her grandmother, however, remains supportive.
Ms Krutsky was educated in primary schools in Canberra and for her high school years at a boarding school in New South Wales. She left in Year 9, however, to return to live with her mother, but her mother’s drug use meant that that was an unsuccessful attempt. She was not a good student but has since completed her Year 10 through the TAFE system. She commenced a Certificate III course in Children’s Services, but, to her regret, discontinued it before completion at the urging of her mother. She had employment as a volunteer at a community centre, teaching art and dancing to children. She has also worked for a short period in the retail industry.
Ms Krutsky has had a number of relationships but she states that they failed because of the behaviour of her partners. She is, however, currently in a relationship which has lasted for three years and she and her partner have a child.
Use of alcohol and illicit substances
Unsurprisingly, because of her family circumstances, Ms Krutsky began using alcohol and other drugs at a very early age, namely when she was eleven. It is difficult not to consider that this was well before she could have made an informed choice about her use of addictive substances or been personally responsible for the consequences. She had easy access to alcohol at the time, although she apparently did have to steal it from her mother, but it appears to have had a serious effect on her mental health, instigating periods of depression. She continues to use alcohol but appears to have moderated her level of consumption.
Her drug use started with cannabis at the same time. Until more recently, the use got to the level of a gram a day. She is reported to have ceased use in late 2012. This has had a beneficial effect on her mental health and is a good start to her rehabilitation, which is necessary if she is to avoid lapsing into criminal behaviour, as was very common in the milieu in which she was moving during her childhood. She has had no other significant drug use. She has attended Directions ACT for support in the past. That agency helped her to stop thinking about cannabis so much and she is now committed to remaining free from drugs. This effort by her is to be commended.
I had a report from clinical psychologist Marshall O’Brien. He made no direct diagnosis of Ms Krutsky’s mental situation, but he did express the following opinion, that she suffers depression and a largely conflicted psychological relationship with her mother. Thus he opined in relation to the offence:
Ms Krutsky, in my opinion, for reasons of her depression and deeply conflicted psychological relationship with her mother, is likely to have been unable in any normal manner to prevent the assault on her friend, pleading only that he was very small and asking that he not be hurt. This would be considered an inadequate response from an average person, but under the pressures of her relationship with her mother I consider that Ms Krutsky’s ability to act in the fashion expected of an average person would not suffice. Her discovery that her friend died as a result of the robbery has distressed and disturbed her in a manner uncharacteristic of a person who did not care for the welfare of her friend. This has now compounded her grief for her Grandfather, her own resentment towards her mother and her own psychological difficulties.
Ms Krutsky told the author of the helpful Pre-Sentence Report that she has been diagnosed with attention deficit disorder and three years ago was prescribed Ritalin. She ceased taking that when she became pregnant. She is now investigating whether she should recommence that treatment. She also says she suffers from anxiety, but that may be attributed largely to the current court proceedings.
Criminal history
Ms Krutsky has a criminal record. The offences commenced in 2010. The most serious, apart from the offences for which I am now dealing with her, is the offence of trafficking in cannabis, when she was involved with Mr Le Dinh, for which she was sentenced by being released on a twelve month good behaviour order. Since then, she has been convicted of five counts of minor theft and one count of unlawful possession of stolen property, all apparently committed on the same day in November 2010. She says that this was a response to the death of Mr Le Dinh, whom, despite her assistance to Mr Martin, she seems to have regarded as a friend. She has more recently been convicted of two more offences of a similar type, but also committed within days of the previous offences, and for which minor penalties were imposed. I was not told why it took two years for those offences to be dealt with by the courts. It does not seem to me that her offending looms large in this sentencing exercise, though she cannot claim to be a first offender.
THE OFFENCE
Robbery is, as the maximum penalties show, a very serious offence. While the threat of injury is one way in which the offence can be committed, it seems to me that the actual infliction of force, another way in which it can be committed, makes the offence more serious. In this case there was actual infliction of force, and quite serious infliction of force. Ms Krutsky knew that this was how the robbery was going to be committed because of the conversation she had with Mr Martin to which I have earlier referred.
Ms Krutsky’s part in the offence was critical. It was she that led Mr Le Dinh to be identified as the target of the offence. Though the evidence before me does not enable me to find that this was done by her deliberately, she well knew, however, and well before the offence, that he was the target, and on the basis of his cannabis and money that he kept in the apartment. More significantly, however, is the fact that she let Mr Martin into the apartments, and without her assistance in this way, the offence could not have been committed at all. This makes her involvement a most important part of the offending.
The offence is one which the courts have regularly said should be treated with severity. The maximum penalties are high and the courts are expected to impose significant penalties when sentencing. The offence combines personal violence with dishonesty, both of which are matters that attack the security and the peace of our community. A table of sentences that have been imposed in this jurisdiction over the last few years was handed up to me. That shows, however, that terms of imprisonment from twelve months to five years and eight months have been imposed. On some occasions, the sentences have been suspended, wholly or in part. The less serious sentences imposed generally were for offences where there were threats made, rather than actual violence being effected.
VICTIM IMPACT STATEMENT
I had a victim impact statement which was read out by Mr Le Dinh’s father. It was very affecting. Mr Dinh dealt in drugs, but it appears that he was a kind, happy and friendly person, who was loved by his family, friends, colleagues and peers. It goes without needing to be said that his death has had a huge impact on all of them. Extracts from a tribute website showed how he was regarded as a gentle, humble, kind, funny and caring person whose untimely death is very much to be regretted. On behalf of the community and the Court, I express our sincere regret and condolences to Mr Le Dinh’s family.
CONSIDERATION
I take into account the purposes of sentencing set out in s 7 of the Sentencing Act.
I take into account the plea of guilty which was made at a relatively early time. It entitles Ms Krutsky to some discount, even though the case against her was a relatively strong one.
I take into account the objective seriousness of the offence as I have described it above and the part that Ms Krutsky played in it.
I take into account the subjective circumstances of Ms Krutsky. It is important that she was, at the time, just 18 years old. While an adult and, as Ipp J said in McKenna v R (1982) 7 WAR 455 at 468, therefore no longer under the regime that the legislature provides for children, she is nevertheless still a youthful person, and at law youth is not to be discounted entirely, even for those who are over the age of eighteen years. See R v Gordon (1994) 71 A Crim R 459 at 469.
I accept, as put by her psychiatrist, that her circumstances were such that she was a reluctant participant because of the personal pressure on her which she found difficult to resist.
I also note that, despite the offence of trafficking, and the relatively minor outburst of criminality in late 2010 which she says was an emotional response to the enormity to her of the death of Mr Le Dinh, she has no other offences on her record, either before those offences or since, even though she had, which often leads to such offending, a traumatic childhood.
I note that Ms Krutsky stood to gain and, at least, tried to do so out of the offending. I accept too that she well knew that there would be violence inflicted, though she did not obviously expect the outcome that actually eventuated.
I have read carefully what was said about accessorial culpability by the High Court in GAS v R (2004) 217 CLR 198. It does not seem to me that what was there said provides any reason why Ms Krutsky should not be dealt with somewhat more leniently than would Mr Martin have been dealt with had he been sentenced for the principal offence.
I note that Ms Krutsky has been assessed as suitable for a community service work condition to a good behaviour order and has been assessed as unsuitable for periodic detention.
(His Honour addressed Ms Krutsky directly)
Ms Krutsky, please stand.
1. I convict you of aiding and abetting, counselling and procuring Corey Martin to commit the offence of robbery between 3 February 2010 and 10 November 2010.
2. I sentence you to two years imprisonment to commence today.
3. I suspend that sentence today for two years. Had you not plead guilty, I would have sentenced you to two years and six months.
4. I require you to sign an undertaking to comply with the offenders’ good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years, with a probation condition, that you accept supervision of the Director‑General, or her delegate, for two years from today, or such lesser period as the person delegated to supervise you considers appropriate, and obey all reasonable directions of the person delegated to supervise you.
Ms Krutsky, I think I have made it crystal clear that this is a most serious offence, and for one so young, who has had a difficult childhood but managed to survive that for so long, it is a great tragedy for everyone that you should be in this position. Having carefully considered all the options that are available, it seems to me that I must mark the seriousness of the offence by a term of imprisonment, but in all the circumstances I do not require you to serve any actual time in prison unless you breach the order. You may breach the order in principally two ways. One is if you commit an offence which is punishable by imprisonment. You can be brought back before me and sentenced again, and that will include the possibility of a term of imprisonment.
You are also under supervision. That supervision can be controlling and it is meant to attempt to keep you out of trouble, but it could also be of assistance to you when things get difficult, and life often gets difficult and your life is one where difficulties are likely to arise. There is someone there who has knowledge and experience who can assist you when things go wrong. You should take advantage of that if you need it.
Again, if you do not comply with the requirements of your supervision, you will be brought back before me and sentenced again, which may include a term of imprisonment.
I hope this will be the last time you will appear in the criminal courts.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 3 June 2013
Counsel for the prosecution: Mr G Mansfield
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the defendant: Mr P Edmonds
Solicitor for the defendant: Canberra Criminal Lawyers
Date of hearing: 18 December 2013
Date of judgment: 19 December 2013
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