Director of Public Prosecutions v Cid-Vandenesse
[2025] VCC 922
•27 June 2025
ry
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00764
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTOFER CID-VANDENESSE |
---
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2025 | |
DATE OF SENTENCE: | 27 June 2025 | |
CASE MAY BE CITED AS: | DPP v Cid-Vandenesse | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 922 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW - Sentencing
Catchwords: Found guilty at trial – Recklessly causing serious injury – Relevant criminal history – General deterrence.
Legislation Cited: Crimes Act 1958 ss 17, 18.
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; R v Chamberlain [1983] 2 VR 511; Nash v The Queen [2013] VSCA 172; 40 VR 134; Zarghami v The Queen [2020] VSCA 299; Hamid v The Queen [2019] VSCA 5.
Sentence: Imprisonment for a period of 3 years with a non parole period of 20 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T Crouch | Office of Public Prosecutions |
| For the Accused | Mr J Miller | Gallant Law |
HIS HONOUR:
Introduction
1Kristofer Cid-Vandenesse, you have been found guilty by jury of one charge of recklessly causing serious injury contrary to s 17 of the Crimes Act 1958 which carries a maximum penalty of 15 years imprisonment (Charge 2).
2You have also admitted your Criminal Record.
Circumstances of the offending
Finding of facts
3As you have been found guilty following a trial, I am required to sentence you in a way that is consistent with the verdict of the jury.[1]
[1] Cheung v The Queen (2001) 209 CLR 1, [14], [162].
4At the plea hearing, it was submitted on your behalf that as a result of a jury question, I should sentence on the basis of the version of the facts put on your behalf at trial. Your version was that the injuries suffered by the victim could have been caused by you throwing the victim to the ground on two occasions, including pushing his head into the ground. As I understand the argument, the accused should be given the benefit of the doubt or that I should accept the version most favourable to the accused.
5During deliberations the jury asked: ‘Do we have to decide if the prosecution proved beyond reasonable doubt if the accused caused the injuries in the way the prosecution alleges[2] or, whether the prosecution proved beyond reasonable doubt that the accused caused the injuries?’.
[2] As underlined by the jury in the original note.
6I answered the question by informing the jury that the version put on your behalf is able to be taken into account as being causative of injury and also reminded them of the evidence of the victim, which was that he was grabbed around the neck and thrown to the ground but was unsure whether he landed ‘slightly’ on his face. Further, that his evidence was that you then stood over him and punched him to the face a number of times and once you had hold of his phone, you also struck him to the face while holding the phone. I also reminded the jury of other objective evidence that prosecution relied on in support of the victim’s version, including: the photographs of the victim and you following the assault; the eyewitnesses accounts; and the audio recording taken by a witness at the scene who said to you ‘you’ve beaten the shit out of him’, to which you replied ‘bloody oath’.
7In my view the jury were able to take into account both versions in finding that you caused the serious injury suffered by the victim. It may well be that some of his injuries were the result of what you concede was a forceful tackle to the ground, which the jury could accept. The jury were also able to accept the victim’s version; that you repeatedly struck him to the head causing a number of the face and head injuries, a version which was largely supported by the medical evidence and other objective evidence.
8As noted in R v Chamberlain,[3] when a trial judge approaches the task of sentencing following a trial, it is clearly established that the judge should form his or her own view of the facts consistent with the verdict. The Court went on to say:
The introduction of expressions such as giving the prisoner the benefit of the doubt does not with respect assist in the difficult task of expressing in a compendious way the degree of satisfaction which a sentencing judge must feel about the facts upon which he [or she] must base his [or her] sentence.
[3] [1983] 2 VR 511, [513].
9Without summarising the medical evidence, in my view the detailed explanations of each of the identified injuries, when considered together with the other evidence given at trial, was not inconsistent with the version provided by the victim and the nature of the assault and indeed strongly supports the version of the victim. As such I will proceed to sentence based on the following summary of the facts.
Summary of facts
10At the time of the offending you were 31 years old and resided in Mount Eliza Way, Mount Eliza. You were a professional boxer, were 6’1 and weighed approximately 100kg.
11The victim in this matter is Kane Folley.[4] He was 14 years old at the time of the offending.
[4] A pseudonym.
12At about 12:30 AM on Saturday 15 July 2023 the victim met up with school friends Isa Bentley[5] and Astrid Dune[6] at the IGA along Mount Eliza Way in Mount Eliza. The group walked south along Mount Eliza Way.
[5] A pseudonym.
[6] A pseudonym.
13Ms Bentley had the idea of knocking on a random door as they walked along Mount Eliza Way. The group referred to this as ‘ding-dong-ditching’ or ‘knick-knocking’.
14Ms Bentley approached your home and knocked loudly at the front door. While she did this, the victim remained outside your property on the street. Ms Bentley then returned to the street. One of the group members said ‘run’ and the group ran south along Mount Eliza Way, away from your address.
15You and your partner at the time Kate O’Dwyer woke to the banging. Shortly after this, you exited your house from the front door wearing only your underwear. You observed the victim and his group running from your house and you started chasing them.
16The group saw you chasing them and continued running and then hid near the driveway of a house on Moorgate Avenue. The victim and Ms Bentley crouched at the back of a parked car. Ms Dune hid near the front of the car.
17A short time later you walked up the driveway of the house on Moorgate Avenue where the group were hiding. You found the victim crouching between the two vehicles. As you approached, Ms Dune and Ms Bentley moved towards the front of the car.
18You grabbed the victim and he fell to the ground. Ms Dune and Ms Bentley ran out of the driveway away from you. When Ms Bentley got to the end of the driveway she looked back to where she last saw the victim.
19You were standing over the victim who was on the ground. You continually struck the victim to the face and hit his ears, temples, nose, and cheekbones. You said words to the effect ‘you tried to break into my house – no ones gunna break into my house’.
20You took the victim’s phone and demanded that he tell you the pass code. The victim did not provide his passcode. You continued striking the victim to the face after this point, including striking him with the phone.
21Ms Bentley and Ms Dune ran away from the address towards the nearby fire station. As they were running away Ms Bentley could hear the victim screaming.
22After some time a nearby resident, Zoe England, came outside after hearing sounds of male voices arguing and loud banging. She heard a male voice say ‘please give me my phone back’. She went outside and observed you standing over the victim.
23The victim recalls that you stopped hitting him when a woman arrived. Ms England observed that you were holding two phones and that you had blood on your leg. She observed that the victim was laying on his back in the car park, that he did not have a top on, that his head was swollen and cut up, and that there was blood all over him. His eyes were swollen.
24Ms England called 000 at 12:52 AM and spoke to an operator. That phone call was recorded and transcribed. Ms England then began recording audio on her phone. The first recording captures the following words:
You: Bro, you can't go breaking into peoples' houses, mate.
Victim: I wasn't breaking in, and I didn't touch your house.
You: You didn't touch my house? Well, your mates touched my house.
25A further recording taken by Ms England captures a period where Ms England and you wait for police to arrive. During that recording you make a number of statements. These include the following:
Ms England: ‘… you’ve beaten the shit out of him’
You: Fuckin' oath. ‘Well, he's tried to break into my house.
After police arrive you state: ‘…I caught him breaking into my house’.
26Police were allocated to attend the scene at about 1 AM. LSC Peita Stokes and SC Tim Kropf attended shortly after at approximately 1:08 AM. They observed a woman with two dogs and you wearing only your underwear.
27The victim was sitting on the ground between two cars. Another teenage male was present standing next to the car. SC Kropf identified the other teenager present as Fred Hunter.[7]
[7][7] A pseudonym.
28LSC Stokes observed that the victim appeared injured and arranged an ambulance to attend. SC Kropf observed that the victim was conscious, but that his face was severely swollen, he could not open his eyes, and he was bleeding.
29You remained present and told police that the victim had broken into your house. LSC Stokes observed that you were covered in blood and had a swollen right hand.
30SC Kropf remained with the victim while waiting for an ambulance to arrive. Further uniformed police arrived at about 1:14 AM.
31Constable Iriyadi took a number of photos of the victim at the scene. You were also photographed at the scene.
32You were then arrested and conveyed to Mornington police station.
33Police took further photographs of the area in daylight including aerial photos and produce Google Maps images of the area.
Medical Treatment and Examination
34The victim arrived by ambulance at Royal Children's Hospital on 15 July 2023. He was photographed shortly after arrival at the emergency department at 3:07 AM.
35His face was very swollen. He had difficulties moving his mouth and opening his eyes. His head shape was distorted because of swelling.
36After arrival he required intubation, mechanical ventilation and admission to the Intensive Care unit because of his extensive head trauma. At 3:52 AM the victim was put into a medically induced coma.
37Medical Imaging demonstrated the following injuries:
(a) bilateral comminuted Nasal Bone Fractures with opacification of the right frontal sinus;
(b) extensive Facial and Scalp Soft Tissue Oedema (swelling in the soft tissues of the face and scalp); and
(c) bilateral Subgaleal Haematomas.
38The victim was assessed by Dr Kerryn Moreira on 18 July 2023. She observed extensive bruising, lacerations, graze abrasions, and scabbed wounds. Dr Moreira opined that some of the bruises and lacerations were likely caused by inflicted trauma or assault. Dr Moreira opined that some bruises could have been caused by an object in the shape of the victim’s phone case impacting his skin.
39Dr Moreira opined of serious injury that ‘Kane required intubation, mechanical ventilation and monitoring in the intensive care unit because of his altered conscious state. This was likely secondary to a significant concussion. A concussion is a traumatic brain injury that alters the way the brain functions. His head CT did not demonstrate intracranial abnormalities.’
40In an addendum report Dr Moreira assessed the reasons for intubation including medical concern that the victims airways were swollen and or damaged, the need to transport him for a CT scan, and that his respiratory rate was dropping creating a risk of respiratory failure.
41She opines because of the danger of respiratory failure the victim’s injuries were life threatening.
42As at 12 December 2023 Dr Moreira opined that the injuries were also serious injuries in the sense they are substantial and protracted based on the evidence of protracted recovery at that time. Her evidence at trial was consistent with her opinions in the reports.
43Since that time the victim has required further medical intervention. On 15 November 2024 Consultant ENT Surgeon Neil Vallance opined that the complainant has ‘a deviated septum to the right and left’ and would ‘benefit from sinus septal surgery and turbinate reduction for his airway.
Record of Interview
44You participated in a record of interview at 2:51 AM on 15 July 2023. A summary of your record of interview is reproduced in the prosecution trial opening and is consistent with your version of the facts as noted above.
Nature and Gravity of offending
45The offence of recklessly causing serious injury is an inherently serious offence reflected in the maximum penalty of 15 years imprisonment. In this instance, the seriousness of the injury satisfies both limbs of the definition, which was conceded on your behalf. The evidence of Dr Moreira was that had the victim not been intubated, he was at a high risk of dying. Further, the injuries sustained were ongoing and protracted requiring operations and treatment many months after the assault.
46As noted above I am satisfied that the injuries sustained by the victim were caused by your conduct which is a combination of you tackling him to the ground and then punching him to the head area a number of times. You were an experienced professional boxer, you were 6 foot 1 inch tall and you weighed 100kg. The victim was a slight 14 year old boy. You chased the victim and his friends motivated by some misguided belief that they were attempting to break into your home. You clearly were able to overpower him and, by the nature of your boxing experience, you knew the force of your own punch and the impact it may have.
47This was a vigilante act where you immediately sought to exact punishment, unable to pause and exercise self-control, or to investigate as to whether your beliefs may have been unfounded. While the act of someone knocking on your door at night was undoubtedly disturbing, you had no justification to pursue and brutally assault the victim in the way you did.
48As recognised by Priest JA in Nash v The Queen[8], causing serious injury cases widely vary from gross and permanently disabling injuries to those that just cross the threshold of serious. While I accept that this is not in the most serious category of injury, in all the circumstances in my view it remains a relatively serious example of the offence.
[8] [2013] VSCA 172; 40 VR 134, [55].
Victim impact statements
49Two victim impact statements were tendered on the plea.
50Together they outline the significant impact and suffering that your offending has caused on Kane Folley and his mother Samantha Folley.[9] Kane details the trauma and anxiety he now suffers which has impacted his schooling, work and his relationships with friends and family. He now suffers from PTSD and nightmares which has impacted on his sleep, requiring psychological treatment in order to cope with the trauma.
[9] A pseudonym.
51Samantha Folley details the associated stress she has had to endure watching her son suffer in hospital with serious injuries. She is now prescribed anti-depressants to manage her anxiety. Further, the severity of Kane’s injuries meant she had to take six weeks off work to care for Kane, which when coupled with the financial costs of psychological and medical support, has caused significant financial strain.
Personal circumstances
52You were born and raised in Frankston as the younger brother in a sibship of two. You describe a largely dysfunctional family of origin which was characterised by family violence and substance abuse.
53Your parents separated when you were four years old and your mother later re-partnered. Your mother’s new partner was a violent drug user who subjected you to violence and traumatic experiences as a young person. You left the family home at age 15 where you experienced a period of homelessness before stabilising yourself in your late teens.
54You left high school halfway through year 10. You report you experienced difficulties with the curriculum and controlling your behaviour in a school environment. You commenced your apprenticeship in bricklaying shortly after leaving school and gained paid employment in metal fabrication which you remained in for 12 years. You have maintained stable employment since your apprenticeship in a variety of manual labour roles.
55In addition to your labour roles you maintained a lengthy career as an amateur and professional boxer. You also coach and train other boxers at a boxing gym ranging from children to adult professionals. You have found both purpose and social connections in the boxing community.
56A psychological report of forensic psychologist David Ball dated 18 June 2025 was tendered on the plea and provides a detailed outline of your psychological history. Mr Ball opines that you present as a socially isolated individual with a long history of substance abuse. You commenced drinking alcohol at age 14 and report hazardous levels of consumption ranging between six and twenty standard drinks daily. Additionally, your stimulant drug use began in your late teens and has continued into your adult life. Dr Ball identifies that you meet the diagnostic criteria for stimulant and alcohol use disorder.
57You detail a history of anxiety and lowered mood caused by the family violence you experienced as a young person. You have been medicated with antidepressants since you were 19 years old however have not had any extensive contact with mental health professionals. Your medication is prescribed by your General Practitioner.
58Your depressive symptoms have been exacerbated in recent years as a result of your biological father’s suicide attempt six years ago and these court proceedings. Your father suffered an acquired brain injury from his suicide attempt and now resides in specialist care. You report that you feel partly responsible for your father’s condition and suffer from feelings of unresolved grief, insomnia and sleep disturbances as a result. You report that you drink every night.
59Mr Ball is of the view that you satisfy the diagnostic criteria for persistent depressive disorder with anxious distress. He elaborates, explaining that your ‘capacity for good judgment and ability to execute positive and self-sustaining behaviours appears to be impaired by self-medicating depression with long term substance abuse’.
60Character evidence from two witnesses was relied on at trial attesting to your good nature. Further references were tendered on the plea. A collection of family and friends, each of whom have known you for a considerable amount of time described you as a hard working and dedicated person who is kind and generous in nature. It is clear from these references that your family and friends remain supportive of you.
61You have a criminal record which it seems was only revealed following the trial where good character evidence was called. You have a prior matter for assault in company recorded in 2014 for which you were released on an adjourned undertaking.
Sentencing considerations
62Mr Miller who appeared on your behalf at the trial and plea hearing, highlighted a number of matters to be taken into account in mitigation.
63First is in relation to your offers to plead guilty to the charge the jury ultimately found you guilty of. The offers were not accepted on the basis that they did not encapsulate the full facts of which you have now been found guilty. One of the earlier offers was put on the basis that the injuries were not life threatening. The prosecution proceeded to trial on the more serious charge of intentionally causing serious injury (Charge 1 on the indictment). The jury found you guilty of the alternative charge of recklessly causing serious injury.
64Relying on established authority,[10] Mr Miller submitted that you should be entitled to some of the utilitarian benefit usually reserved for a person who pleads guilty. I accept that you should be given some allowance for the utilitarian benefit of the rejected offer to plead guilty, noting however that at trial you continued to reject the version of events put by the victim. I also note that before the jury you did not concede that the injuries sustained by the victim amounted to serious injury.
[10] Zarghami v The Queen [2020] VSCA 299, [70].
65I take into account your mental health concerns as outlined in Mr Ball’s report noting that Mr Miller does not seek to draw any link between your conditions and the offending but rather points to Mr Ball’s view that your overall capacity to exercise good judgment appears to be impaired as a result of your self medicated depression, coupled with long term substance abuse. I take these matters into account in the general sentencing discretion.
66Turning to your prospects of rehabilitation, you come before the court with a limited prior criminal history, a consistent work record and supportive family and friends. That said there has been little explanation for your extreme and violent reaction that led to this offending and as such, while your prospects appear to be positive, they also must be approached with a degree of caution.
67Clearly general deterrence and denunciation of your conduct are prominent sentencing considerations. Your conduct, driven by misguided vigilantism must be deterred in the strongest of terms. As the Court noted in Hamid v The Queen:[11]
The courts have consistently condemned acts of vigilantism. They have repeatedly emphasised that members of the community must resolve their grievances by lawful means rather than taking the law into their own hands by physically harming perceived wrongdoers or members of their family, or damaging their property. The sentences that the courts impose on those who act contrary to the rule of law by taking personal vengeance need to be such as to deter not only the offenders from committing similar offences in the future but also to deter others from taking the law into their own hands.
[11] [2019] VSCA 5, [48] (Whelan JA, Kyrou JA).
68Mr Miller submitted that a combination sentence of up to 12 months imprisonment together with a community correction order is able to meet the relevant sentencing considerations. Mr Crouch who appeared on behalf of the Director of Public Prosecutions submitted that the only appropriate sentence is a head sentence with a non-parole period. While you have been found suitable for a community correction order, in my view in all the circumstances the seriousness of your offending calls for a term of imprisonment involving a head sentence together with a non-parole period.
Sentence
69Mr Cid-Vandenesse would you please stand.
70Kristofer Cid-Vandenesse, on Charge 2, causing serious injury recklessly, you are convicted and sentenced to 3 years imprisonment. I direct that you serve 20 months before becoming eligible for parole.
71Pursuant to s 18 of the Sentencing Act 1991, I declare that 7 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
0
3
0