R v Rebecca Krutsky
[2013] ACTSC 278
•20 December 2013
R v REBECCA KRUTSKY
[2013] ACTSC 278 (20 December 2013)CRIMINAL LAW – judgment and punishment – sentencing – aiding and abetting counselling the offence of robbery.
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1)(z)
Criminal Code 2002 (ACT), ss 45, 309
Cameron v The Queen (2002) 209 CLR 339
Doherty (1986) 8 Cr App R (S) 493
Muldrock v The Queen (2011) 244 CLR 120
R v Blaskovic [1949] FCA 1306
R v Carney [2013] ACTSC 266
R v De Simoni (1981) 147 CLR 383
R v DF (No 2) (2012) 6 ACTLR 105
R v Martin (Unreported, ACT Supreme Court, Nield AJ, 16 October 2013)
R v Schmidt (Unreported, ACTSC, Refshauge J, 9 December 2013)
R v Williscroft (1975) VR 292
Veen v The Queen (No 2) (1988) 164 CLR 465EX TEMPORE JUDGMENT
No. SCC 412 of 2011
Judge: Refshauge J
Supreme Court of the ACTDate: 20 December 2013
IN THE SUPREME COURT OF THE )
) No. SCC 412/11
AUSTRALIAN CAPITAL TERRITORY )R
V
REBECCA KRUTSKY
ORDER
Judge: Refshauge J
Date: 20 December 2013
Place: CanberraTHE COURT ORDERS THAT:
Ms Krutsky be convicted of aiding, abetting, counselling or procuring Corey Martin to commit the offence of robbery between 3 February 2010 and 10 November 2010.
Ms Krutsky be sentenced to two years and six months imprisonment to commence on 18 July 2013.
Ms Krutsky serve a non-parole period of eighteen months to commence on 18 July 2013 and end on 17 January 2015.
1. On 19 May 2010, a very serious crime was committed in the Oracle Apartments in Belconnen; it started out as a robbery but ended as a murder. The person who committed the murder, Corey Martin, has been dealt with by the courts, see R v Martin (Unreported, ACT Supreme Court, Nield AJ, 16 October 2013). While Mr Martin alone committed the murder, he was assisted in the robbery by others: in particular, Camilla Krutsky and her mother, Rebecca Krutsky. I have already sentenced Camilla Krutsky, see R v Krutsky (Unreported, ACT Supreme Court, Refshauge J, 19 December 2013).
2. Rebecca Krutsky has pleaded guilty to aiding, abetting, procuring or counselling Mr Martin to commit the robbery. Robbery is an offence is against s 309 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 1400 penalty units. That is, a fine of $154,000 or imprisonment for fourteen years, or both. It is, thus, a very serious offence judged by the maximum penalty which the courts have said it is an indication of the relative seriousness of the offence. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].
3. 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 itself; thus, Ms Krutsky is liable to the maximum penalty for the offence of robbery, as I have set out above.
The facts
4. Mr Martin and Ms Krutsky were in a domestic relationship in 2010, though, Mr Martin at that time was in custody in the Alexander Maconochie Centre (the AMC). In January 2010, Ms Krutsky’s daughter, Ms Camilla Krutsky, moved into the Oracle Apartments. They are secure apartments requiring the residents to use an electronic swipe key to access them and the various floors on which the apartments are located.
5. Sometime after she moved in, Ms Camilla Krutsky met Andre Le Dinh, who lived on the same floor as she did. He told her that he dealt in cannabis and she purchased some from him. She bought more cannabis from him over time and distributed it to another person. After I had reserved my decision on the sentence, Ms Krutsky asked to make a statement to the court; I permitted it. It was not made on oath or by affirmation; Ms Krutsky was not really, therefore, able to be and was not cross‑examined on it. I shall refer to it further in these reasons but she made statements that led me to understand that she became concerned that the activities of Mr Le Dinh and, in particular, the dealing in cannabis that her daughter, Ms Camilla Krutsky, was now engaged in with him. It appears that, instead of all the other options that she could have taken to stop her daughter’s criminal activity, she decided that Mr Le Dinh should be “targeted”.
6. Due to the way this information came to the Court after the evidence had been completed, not on oath or affirmation, after I had reserved my decision overnight, I must treat this material with considerable caution. It seems to me that it cuts two ways: on the one hand, it provides a less venal motive for the crime of robbery than greed for the money and cannabis that would otherwise be the obvious inference to be drawn from all the circumstances; on the other hand, it makes it clear that Ms Krutsky was the moving party, the motivator for the robbery committed by Mr Martin, even though he was a willing, even an eager, participant. Some of the evidence, however, was not entirely consistent with this material. I shall refer to that later.
7. On 4 February 2010, Ms Krutsky and Mr Martin spoke on the phone from the AMC. She told him that Ms Camilla Krutsky was living next door to a “big pot dealer” and that he “does plenty”. Mr Martin replied, “That’ll do me when I get out then.” Ms Krutsky replied, “No, that’s number one … there’s a few more, don’t worry, that’s number one. Oh I was fucking … lining them all up.” Mr Martin responded, “Yeah, good darl. Good, because it will be good when I come home.” Then they discussed Mr Martin’s release in ten weeks and Ms Krutsky said that she would “butter a few more fucking suckers up”, to which Mr Martin answered, “Good, do it, all right. And I’ll pump the fucking lot of them when I get out, all right.”
8. The two had a discussion about getting Mr Martin access to a swipe key and how to avoid the cameras, presumably CCTV, in the apartments. Mr Martin said, “Yeah, good, and Camilla can find out how much he does and that I’ll pump him when I get out.” The two had a further conversations on 18 February, 11 March and 6 April 2010 when they talked further about Mr Le Dinh’s activities and how Ms Krutsky had organised for Mr Martin to make some money when he was released from the AMC.
9. On 20 April 2010, Mr Martin was released from prison. He visited Ms Camilla Krutsky on 18 May 2010 when he made the first attempt to rob Mr Le Dinh, but Mr Le Dinh was not home. On 19 May 2010, he returned to the apartments, was let in by Ms Camilla Krutsky and he went to Mr Le Dinh’s apartment. He entered it and kicked Mr Le Dinh in the head on a number of occasions, stole money and cannabis from him. Tragically, Mr Le Dinh died of the injuries he then received.
10. On 20 May 2010, Ms Krutsky visited a hairdresser in Belconnen. She received a phone call while there, causing her to leave without completing her appointment. She paid in cash and was seen to have a large amount of cash in her handbag. The next day, Mr Martin drove a car, which he had purchased with $14,500 cash, to Ms Krutsky’s residence and Ms Krutsky told a person who asked whether she had won lotto, “We had a good rort.”
11. In the next few days, Ms Krutsky and Mr Martin purchased a number of items with cash from the robbery. Police later executed a search warrant at Ms Krutsky’s residence and located a pound of cannabis and a vacuum‑sealed bag, which forensic examination disclosed had been sealed by the machine in Mr Le Dinh’s apartment. They also located cash and rubber bands of the same colour and dimensions as those in Mr Le Dinh’s apartment.
12. Police then installed a listening device in Ms Krutsky’s residence and recorded a number of conversations; these included: Ms Krutsky telling Mr Martin not to worry because Mr Le Dinh’s death was an accident and that he should, if interviewed by police, just tell them that he went there to rob Mr Le Dinh and that, when he left, Mr Le Dinh was well and truly alive; Ms Krutsky telling Mr Martin that she did not think the crime was looked at seriously as it was drug dealers, money and drugs; Ms Krutsky and Mr Martin arranging a story so that he could tell police that Mr Le Dinh was already dead and that all Mr Martin did was pick up the money that was owed to him; Ms Krutsky telling Mr Martin that she had lied to police about saving the money for him that he used to pay for the motor vehicle.
13. Ms Krutsky was interviewed by police on 27 May 2010 and 10 November 2010 and, on the latter date, was arrested and refused bail. She was later granted bail but it was subsequently revoked and then later regranted, the proceedings. Ms Krutsky was initially charged with being an accessory after the fact of the murder of Mr Le Dinh, being an accessory after the fact of the robbery of Mr Le Dinh, conspiracy with Mr Martin and Ms Camilla Krutsky to rob Mr Le Dinh and, later, of dealing with the proceeds of crime. After 18 appearances in the Magistrates Court, she was committed for trial to this court on those charges on 20 December 2011.
The proceedings
14. The initial indictment filed charged her with knowingly concerned in the robbery of Mr Martin. She pleaded not guilty to that charge on 19 June 2012. A further indictment, dated 8 July 2013, charged her with conspiracy to commit an aggravated robbery with Mr Martin and Ms Camilla Krutsky. On 30 July 2013, she pleaded not guilty to that indictment and a trial was fixed to commence on 19 August 2013. On 16 August 2013, a fresh indictment was presented, charging her with the present offence and she pleaded guilty to it. This was, in the circumstances, an early plea of guilty. See Cameron v The Queen (2002) 209 CLR 339 at 363; [73]-[74]. It seems to me that a notice declining to proceed is required to be filed in relation to the other two indictments. See R v DF (No 2) (2012) 6 ACTLR 105.
15. I have referred earlier to Ms Krutsky being remanded in custody and being granted bail. She has spent a total of 155 days in custody in respect of this offence.
Subjective elements
16. I received in evidence a helpful Pre-Sentence Report about Ms Krutsky as well as a comprehensive report from the Court Alcohol and Drug Assessment Service (CADAS), and her criminal history. Ms Krutsky is an only child born to her parents. The family lived initially in Sydney. She had a close relationship with them until her late teens, though her father was very strict. Her father was a member of the Navy and he was away at sea for long periods during her childhood. The family moved every couple of years because of her father’s engagements and she was never in one school for very long, and could not form lasting friendships.
17. Between ages 11 and 14, she lived in Singapore, the longest time the family had lived in one place. On their return to Australia, the family came to Canberra. Ms Krutsky was educated at private schools but completed her Year 12 certificate at Narrabundah College. When she was 17, she was raped, and although she had used cannabis and drunk alcohol since she was 15, she began to use these and other drugs more regularly to cope with the trauma. This also led to a deterioration in her relationship with her parents.
18. Ms Krutsky initially worked in a newsagency operated by her parents but intermittently she had some employment described unspecifically as “sporadic short‑term employment” in the Pre-Sentence Report, the last period being four months at the end of 2012. She has attempted studies in community services and welfare but never completed them.
19. Ms Krutsky had her first child, Ms Camilla Krutsky, when she was nineteen years old. Her then partner was much older than she was and was already part of the drug scene and involved with crime. Since then, Ms Krutsky has had five other children. Tragically, one of her children died of sudden infant death syndrome. Her other children have been raised by her family or in foster care, having been removed from her by Care and Protection Services of the Community Services Directorate. She has a relationship with her children, with whom she has regular contact. While the care responsibilities of her parents for her children has put a strain on the relationship, Ms Krutsky was reconciled with her father late in 2012, but, regrettably, he died on 24 December in that year. A dispute over his estate has put further strain on her relations with her mother.
20. Ms Krutsky has been in a relationship with Mr Martin for about eleven years, although he has been in and out of gaol for much of that time. She has now ended the relationship, though they remain friends, and, of course, share children together. Ms Krutsky says that she has renewed her faith in her church and has been attending regularly. She wishes to obtain employment and would like to re‑engage with counselling.
21. Ms Krutsky continues to drink alcohol but she said it is occasional and for special occasions. She says that alcohol has never been a particular problem for her.
22. She smoked cannabis for a long time regularly with short periods of abstinence, urinalysis as required by ACT Corrective Services and helped her to reduce her consumption. She has completed the “Controlling Your Cannabis Use” group program in 2012, which has helped her achieve abstinence since the beginning of this year.
23. Although she has had occasional use of amphetamines and cocaine, her drug of choice is heroin, which she began using when she was seventeen years old. She has since then used it on and off for the last twenty years. She says she does not use it on a daily basis. She has achieved periods of abstinence and says she has now not used it since 2010, when she started on the methadone program. She had one relapse when her father died. Her current dose of methadone is 60 milligrams a day.
24. Ms Krutsky has had residential rehabilitation treatment in Karralika twenty years ago; she has also attended Arcadia House on five occasions prior to 2001.
25. Ms Krutsky has also had a private psychological counselling during 2012 for her grief and loss issues relating to the death of her child and the removal of her other children. She has a long history of depression, which has plagued her life since the sexual assault in 1990. She has been prescribed medication as well as the counselling.
26. Ms Krutsky has a very significant criminal history. She has a total of 59 offences on her record, including 15 drug offences and 28 offences of dishonesty. She has also been dealt with on eight occasions for breaching court orders. There is one offence of violence on her record, an assault occasioning actual bodily harm. She also has been convicted of possessing a knife without reasonable excuse. She has been sentenced to imprisonment, which has been served by periodic detention, though the order was cancelled and she served the balance of the period in full‑time detention. She has been the subject of a number of suspended sentences.
27. In her oral statement, Ms Krutsky expressed considerable remorse. She expressed her feelings of both remorse and regret directly to Mr Le Dinh’s family, as well as her empathy due to her own experience of the loss of her child. Although her statement came very late in the piece and was a somewhat excessive show of feeling, I am prepared to accept that Ms Krutsky is generally remorseful for her participation in the crime.
28. Mr Le Dinh’s father read out a moving and helpful victim impact statement. The pain of a parent losing a child was evident in the statement. Clearly, the picture of his son as a drug dealer has been hurtful and he pointed to the other side of his son, which has not been published in the media. He described his son as “a naïve kid who flew from the nest for the first time.” He had a steady job, saved up and bought the flat in which he died. Mr Le Dinh described his son as a happy, kind and friendly person, loved by his family, friends, work colleagues and peers. That was echoed in tributes that have been posted on a website, which continue to be posted, even now. There, he is described as a gentle, humble and kind man, and as funny, caring and always having time for a chat. No punishment a court can impose can adequately address the hurt and pain to his family and friends. The court, however, expresses its sympathy and the condolences of the community to his family and friends.
The offence
29. Robbery is a very serious offence. The Victorian Full Court described it in the R v Williscroft (1975) VR 292 at 302 as “aggressive and rapacious conduct”, which violates the fundamental values of the community and requires those who engage in it to be punished severely. In this case, Ms Krutsky was clearly involved in the planning of the robbery, the identification of Mr Le Dinh as the victim, and the way in which the robbery could be committed. The value of the property stolen is relevant. This cannot be clearly known, but, from the evidence, was a very significant amount of cash, at least $15,000 or more and probably more, together with, of course, the cannabis.
30. That the robbery was in a private residence where the victim lived made it more serious, as was noted by the UK Court of Appeal, in Doherty (1986) 8 Cr App R (S) 493 at 493. The offence can be committed by the offender threatening the victim with violence or by inflicting actual violence on a victim. It seems to me unarguable that the actual infliction of violence makes the offence more serious. It is clear from the statement of facts and the conversations reported in them that Ms Krutsky knew that Mr Martin was likely and probably intending to inflict actual violence on Mr Le Dinh. Objectively, this was a serious version of the offence, even without the dreadful outcome that actually eventuated.
31. The prosecution provided a very helpful table of sentences imposed in this jurisdiction for the offence of robbery. They all showed, unsurprisingly, the imposition of a sentence of imprisonment. The length of the sentences ranged from twelve months to five years eight months. Some of the sentences were suspended. Generally, it can be said that the more severe sentences were imposed where there was actual violence. I am, of course, not bound by this range, but it is helpful, and indeed I am required by s 33(1)(z) of the Crimes (Sentencing) Act 2005 (ACT) to take into account current sentencing practice.
32. It seems to me that Ms Krutsky has a significant culpability for this offence. She was clearly a critical part of the encouragement for the commission of the offence and she identified the victim. She also was instrumental in identifying how it was to be committed She stood to and did benefit significantly from the robbery. She is, of course, not to be charged as an accessory after the fact, nor in respect of the dreadful outcome, and any evidence of that must be excluded from the sentencing. See R v De Simoni (1981) 147 CLR 383.
33. Further information given by Ms Krutsky in her oral evidence, to which I have earlier referred, is to be taken with caution, as I have said. I have set out, in R v Carney [2013] ACTSC 266 at [149], the principles to be applied in fact finding on sentencing and I take those into account. I may not always be able to make a finding on every matter that is raised in sentencing proceedings. In this case, it seems to me that, on either version, Ms Krutsky’s culpability is very significant. On the statement of facts, she was a motivator, though perhaps not the prime motivator. On her oral version, she was the prime motivator. On the statement of facts, the motive was pure greed. On her oral version, it was the protection of her daughter, an understandable but entirely misguided approach to that problem, but also impugned by the fact that she did subsequently share significantly in the proceeds of the robbery.
Consideration
34. I take into account the objectives of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005. I take into account Ms Krutsky’s plea of guilty. It was accepted to be an early time and this entitles her to a significant discount. Nevertheless, that must be moderated by the fact that the prosecution case against her was a very strong one.
35. I take into account the objective seriousness of the offence as disclosed by the nature and circumstances of it, and as I have described above, and I take into account Ms Krutsky’s personal culpability. I take into account Ms Krutsky’s personal circumstances as I have found them above. Her prior offending denies her the leniency that I could extend to Ms Camilla Krutsky, though, of course, I must not punish her again for past offences. See Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
36. I accept that, since the offence, Ms Krutsky has made efforts to address the criminogenic factors that caused the author of the Pre-Sentence Report to assess her as at a high risk of reoffending. There is, however, an element of mere intention in this. She wants to return to employment, she would like to commence a course of study, she would like to re‑engage with counselling. She has had over three years since the offence was committed to address these issues. She is to be given credit for her abstinence from cannabis and heroin, but while that is a big part, that is only a part of her rehabilitation.
37. I have regard, also, to the question of parity with her daughter, who pleaded guilty to the same offence. Their circumstances, however, are very different. These differences include differences in age, the differences in criminal record, the differences in culpability, especially since the expert evidence showed the complex interaction between mother and daughter, which made Ms Camilla Krutsky not only vulnerable but unable to resist the pressure from her mother.
38. I do not take into account, however, in selecting the correct sentence, any pressure that Ms Krutsky might have imposed on her daughter that may have been a relevant factor in the sentencing of Ms Camilla Krutsky. While I must have regard to the sentence I have imposed on Ms Camilla Krutsky, there is no direct comparison between the two. I have addressed the issue of parity further in my decision in R v Schmidt (Unreported, ACTSC, Refshauge J, 9 December 2013), and rely on the principles as set out there. I accept, too, that Ms Krutsky should be encouraged in her rehabilitation, as suggested in R v Blaskovic [1949] FCA 1306 at [22], but this cannot overwhelm the seriousness of the offence and the culpability she has for it.
39. Ms Krutsky, please stand. I convict you of, between 3 February 2010 and 10 November 2010, aiding, abetting, counselling or procuring Corey Martin to commit the offence of robbery. I sentence you to two years and six months’ imprisonment to commence on 18 July 2013, to take into account pre‑sentence custody. Had you not pleaded guilty, I would have sentenced you to three years’ imprisonment. I set a non‑parole period of eighteen months to commence on 18 July 2013 and end on 17 January 2015.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 26 February 2014
Counsel for the prosecution: Mr G Mansfield
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the defendant: Mr J SabharwalSolicitor for the defendant: Legal Aid ACT
Date of hearing: 18 December 2013
Date of judgment: 20 December 2013
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