Director of Public Prosecutions v Kindred

[2022] VCC 1475

IN THE COUNTY COURT OF VICTORIA

 Revised

Not  Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-02441

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW KINDRED

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JUDGE:	HER HONOUR JUDGE SYME
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2022
DATE OF SENTENCE:	30 August 2022
CASE MAY BE CITED AS:	DPP v Kindred
MEDIUM NEUTRAL CITATION:	[2022] VCC 1475

REASONS FOR SENTENCE

‑‑‑

Subject:         CRIMINAL LAW

Catchwords:  Robbery, false imprisonment and sexual assault – Random act of violence – Lack of empathy and egocentricity – Mostly positive upbringing marred by departure of biological father – Ongoing family support – Appropriate understanding of seriousness of offending – Subsequent expression of significant remorse - Guarded prospects of rehabilitation

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited: Mackey v The Queen [2006] NSWCCA 254.

Sentence: Convicted and sentenced to a term of imprisonment of four years and nine months duration with a non-parole period of 3 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Ms S. Jankovic
For the Accused	Ms D. Lamovie	Mr. Ozgur Celik

HER HONOUR: 

1Mr Kindred, you have pleaded guilty to one count of false imprisonment at common law, one count of sexual assault contrary to section 40 of the Crimes Act 1958 (Vic), and one count of robbery contrary to section 75(1) of same. In relation to false imprisonment, the maximum penalty is 10 years’ imprisonment as is the penalty for sexual assault. As for robbery, the maximum penalty is 15 years’ imprisonment.

Background

2You have admitted prior convictions, and I have a copy of your record.  I will refer detail to your record in more detail as it provides information relating to your background.  I note you have prior convictions largely to do with breaching family violence orders-type offences; offences relating to various relationships you have had throughout your life.

3According to your psychologist's opinion, and based on your own account, your prior offending appears to have been related to substance abuse issues and 'emotional dysregulation' occurring in the context of prior relationship issues. That is, issues relating to separation and child-access.

4However, your record is also evidence of other instances of violent behaviour committed under the influence or not. Your prior criminal record gives the court concern and must deprive you of leniency.  It is apparent that numerous supervision orders have been ineffective in changing your behaviour.

Circumstances of offending

5The facts relevant to the offending are contained in the prosecution opening and are not in dispute. At the time of the offending, you were 32 years of age and resided in the Albury area. 

6The complainant was a young woman aged 23 years of age and unknown to you.  At 7.30 am on 23 April 2021, she parked her car near Festival Hall on her way to work.  You were walking along Dudley Street and loitered in the laneway behind some pillars.  Various passers-by entered the laneway, and the complainant entered the lane from Rosalind Street, heading towards Dudley Street.

7As she walked past a pillar, you came out and grabbed her from the side. You put your arms around her and pulled her towards a side doorway at Festival Hall. You subsequently put a hand over her mouth.  You told her to stay quiet and not to say anything or scream.  You pulled her to the ground and forced her to sit while you stood next to her. You then sat behind her with your legs on either side of her.

8In her shock at the assault, she offered to give you what was in her bag.  You took her backpack, but you put your hand over her mouth to stop her speaking.  You began to touch the complainant's chest over her jacket.  She protested, telling you she did not have anything on her, and again offering to get her wallet from the bag for you.

9You then unzipped her jacket and said, 'No, I have to check.  I still have to check for anything.'  You put your hand under her bra and grasped her left breast.  She again offered you property to get you to leave her alone, but you used your other hand to feel between her legs and under her buttocks.  You then squeezed her crotch over her clothes.

10You then pulled her to standing position and took her iPhone.  You grabbed her arm and forced her along the laneway into Rosalind Street. 20 metres away, near a doorway, you subsequently prevented the complainant from leaving by standing between her and the street.  By this time, it was about 7:43am.

Arrest

11You attempted to force a door open, and the complainant again offered you money to leave her alone.  At this point, a vehicle approached Rosalind Street, and the complainant tried to get the driver's attention.  You restrained her from doing so.  She ultimately broke free and ran to the driver of the motor vehicle who was, fortuitously, an off-duty police officer - Officer Rooney.

12You ran from the scene with the complainant's possessions and were chased by Officer Rooney.  You hid in some bushes and were ultimately arrested inside a private home some distance away.

Psychological impact of offending

13The complainant's possessions, including her Apple iPhone, $20 in cash, and her backpack and contents were located with you when you were arrested.

14I have read the victim impact statement dated 5 November 2021.  This statement reminds the court of the consequences - the long-lasting, devastating consequences - of a random act of extreme violence on a young woman.  The consequences for her, will no doubt stay with her, for a long time.

15In addition, of course, the consequences are for her friends and family who no doubt wonder how to help, and indeed, for the entire community, whose collective sense of community safety is challenged by such acts of violence.

16The victim impact statement is not tendered by the prosecution seeking that aggravating circumstances be found, but as a reminder to the court of the usual and egregious consequences for such acts of violence.

Plea of guilty

17In relation to your plea of guilt:  You entered a plea at a relatively early opportunity, after what seems to me to be an ambitious application to have the matter dealt with in the summary jurisdiction.  That application was refused.  You are therefore entitled to a significant discount on the sentence that may have been imposed had the matter proceeded to trial, and, of course, if witnesses were required to be called.

18I acknowledge that the appropriate discount must take into account the current difficult circumstances in custody making time served by you more onerous than usual, and in addition, acknowledging that an early plea is of significant benefit to the administration of justice.

19I acknowledge that you have spent 494 days in custody in relation to these crimes.

Objective gravity of offending

20I turn now to an assessment of the objective gravity of the offending.  In considering matters that make the offending more serious, I note that the sexual assault offence is a rolled-up charge. The offending occurred over about 10 to 12 minutes. During that time, the complainant was assaulted on two distinct and separate occasions with a significant degree of force and violence.

21Holding the complainant in a fairly remote area, effectively holding her hostage, restraining her while the offending occurred and restraining her while she was seeking to escape, are all matters which feature in the unlawful detention offence and the sexual touching.

22The offending is, in total, above mid-range objective seriousness but consideration will be given to the sentences to be served which will be partially accumulated as the offending and each individual offence occurred, in effect, as part of a course of conduct.

Totality

23The principles of totality require the court to take this into account when considering not only the imposition of a sentence in this matter, but also issues of concurrency and accumulation in respect of separate sentences.

Mitigation

24The robbery offence occurred with the same degree of violence as I have just referred to.  The property stolen was not of great value.  It was submitted that the property was recovered and that that fact represented an amelioration of the seriousness of the offending. 

25The recovery of the property was a result of the robbery being interrupted, not by any act of contrition on your behalf.  That is of limited assistance to you.

26When considering matters that make the offending less serious, I note that the offending and the event as a whole occurred over a relatively short period of time.  No doubt because it was interrupted by Officer Rooney.  The robbery offence is of below mid-range objective seriousness.

27As all three offences were committed, in effect, as part of a course of conduct, there will be some accumulation. It will be modest. 

Personal circumstances and criminal history

28In looking at your personal circumstances, a report by Mr Simon Candlish, psychologist, dated 28 October 2021, was tendered by consent.  It includes some information relating to your background and your attitudes to offending as a whole. 

29The report was largely based on your self-report alongside witness and victim statements. Appropriate assessment tools were administered, and the contents of the report are not in dispute.

30You were raised in a loving household with your mother, stepfather, and siblings.  You report what is understood to be a feeling that you were abandoned by your biological father.  It is reported that this self‑focussed view has permeated your attitudes, lifelong.  Notwithstanding, there is no doubt that your family loved and supported you throughout your life and they still do.

31You report no physical, sexual, or emotional abuse as a child and you report that life was pretty good with the best mum and stepdad.

32In relation to your educational history, you indicated that you left school prior to completing Year 10.  You were employed thereafter by concreting companies until you progressed and worked for a company building bridges. You did so until you were 27 years of age.  You report having a good work ethic and being a good worker and that again, is not disputed.

33In relation to your relationships, it is reported that you have had three significant relationships where you cohabitated with a partner.  The conclusion of each relationship apparently left you feeling that the women involved would, in effect, come to their senses and in due course, return to you.  These misguided beliefs have resulted in family intervention orders being imposed against you to curb your obsessive contact.

34This pattern commenced with your first live-in partner who was reportedly unhappy with your Cannabis use. When she ended the relationship, you did not accept it and an IVO was eventually issued.

35Your first contravention was heard in August 2012 when you were aged 23. Submissions from counsel indicate that this was in relation to your first partner.  You were required to undertake counselling.  After this, and while you maintained good employment, your most significant relationship occurred, and your son was born. You blame working away from home and increases in drinking for the conclusion of that relationship.

36Your counsel submits, and this is at paragraph 53 of her submissions, that you thought, and I quote, 'Your partner would come around after a break'.  This attitude, to my mind, displays a breathtaking lack of understanding of your situation as it then was.

37It is noted that between 2017 and 2018, you were charged with a number of offences relating to breaches of family violence orders relative, I am told, to this partner.  In telling Mr Candlish of this period, you minimised the breaches as 'only' involving the use of a telephone and not actual violence.  You justified the breaches on account of you not being allowed proper access to your son.  Your counsel made similar submissions.

38This attitude to your child's access is not only misguided, it is not in accord with any concern for the child's welfare.  You failed to accept the impact which a frightening and intrusive barrage of texts and phone calls would have on another person.  This type of offending is often an attempt to control the other person and it seems that such an observation is relevant to such offending.

39Your self-focused view resulted in you continuing to breach orders and eventually led to your imprisonment for a period of 5 months, initially.

40You were also charged with threats and an assault of an emergency worker.  It is submitted that this was a lower-level incident as it was dealt with without conviction, but I cannot draw this inference.  It is a serious charge.  You were again directed to attend counselling and obtain mental health treatment.

41The imposition of the intervention orders seems only to have increased your attempts which, in turn, have resulted in you being charged with criminal offending relating to persistent breaches and eventually, imprisonment on such breaches.

42This pattern has continued since 2017.  I observe that, in the short term, you are able to comply with supervision by corrective services.  However, in no known order, your substance abuse returns, you breach orders and resultant contact with authority figures is then again required.  The cycle of offending and imprisonment then continues. 

43Your drug of choice, I am told, over the past two or three years, has been methamphetamine.

44An observation of your criminal record shows an increase in the volume and seriousness of offending from 2012 until now.  The current offences are, of course, very serious.

Police use of force

45In conversation with Mr Candlish, your psychologist, you reported that – and this is at paragraph 73 of the report – you reported that 'It felt like a dream'.  You report that your clearest recollection was of being arrested.  Your counsel describes your recollection as 'patchy', but she pursued the claim that you were beaten by police on being arrested.  I will refer to this later.

46My observation is that of the 15 to 20 minutes over which the entire event occurred, your recollection appears to be highly selective.

Motivation for offending

47In assessing your motivation for offending in general, Mr Candlish suggests some possible motivations.  In developing a case formulation, he observes, and I paraphrase from paragraph 122 of his report, Mr Kindred experienced abandonment and seemed to develop issues with authority; matters likely connected to his father's poor parenting.  He has developed egocentricity in this context which has persisted into adulthood. 

48It is suggested that this is of relevance to your difficulties within intimate relationships.  Mr Candlish further observes, 'he has relied on substances to cope and ameliorate negative mood states.'  In this regard, it is observed that your use of Cannabis was an issue in your first intimate relationship.  Alcohol, a problem in your second, and in your third, the use of ice.

49At the end of each relationship, your behaviour was such to justify intervention orders being put in place. 

50Your prior criminal record is of concern and may deprive you of leniency but is not an aggravating circumstance in assessing the appropriate disposition for this matter.

51In relation to the current offending there is no coherent explanation as to the motivation for this group of offences.  Your counsel submits in paragraph 120 of her submissions that 'you were in extremis, affected by drug use, [experiencing] untreated depression, homelessness and [were] at the lowest ebb of your life.'  I observe that 'in extremis' is a Latin phrase meaning 'the farthest reaches or at the point of death'.  There is insufficient evidence in Mr Candlish's report or elsewhere to support such a submission. 

52Mr Candlish suggests a number of possibilities which may have resulted in your offending before the court on this occasion.  You told Mr Candlish and your counsel that you cannot recall the event, so you offer no explanation for the offending.  It seems to be accepted that your use of methamphetamine is related in some way.  That being said, there is no information as to whether you were intoxicated at the time or coming down from that use or subject to the effect of Ritalin when the offending occurred.

53There is no suggestion, however, that you were not fully aware of what you were doing at the time.  There is little cogent explanation for the motivation of the offending as a whole.  Mr Candlish's suggestions as to motivation include stimulant-related sexual arousal, the need for money and/or arousal in engaging in risky behaviour. He also suggested ongoing anger or depressive symptoms due to unresolved issues with your ex‑partner or some developed hostile attitudes about women in the context of failed relationship and access issues could have played a role.  To my mind, these are all worrying scenarios.

54None of these suggested motivations reduce the objective seriousness of the offending.  In the context of a longstanding three years, at least, of methamphetamine use, none of the suggested motivations point to any identifiable feature of the causes of offending that might be targeted to reduce similar offending in the future.  This is, in effect, the finding of Mr Candlish who finally concludes:  

Mr Kindred's depressive symptoms have contributed to social withdrawal and alienation, low self‑worth and has reduced [his] empathy leading to greater focus [his] [own] own difficulties.

Mr Candlish then continues:  

His depressive symptoms have contributed to greater substance abuse.  His substance abuse has also resulted in significant destabilisation in his lifestyle and behaviour and has acted as a disinhibitor at the time of the offending. 

These conclusions are found at paragraph 132 of his report.

55The observation of substance abuse as a disinhibitor is not unusual in criminal offending of both a sexual and violent nature.  This offence is both.  In whatever context, Mr Candlish opines, at paragraph 125, that your symptoms and substance abuse have contributed to a lack of empathy and the promotion of egocentricity.  This is not an example of a person in extremis, as submitted.

56There is no doubt that you were fully aware that what you were undertaking was a serious criminal offence. When you were approached by the off-duty police officer who sought to intervene, you ran away and attempted to hide in houses far away from the crime scene.

Prospects of rehabilitation

57I turn now to the question of your prospects of rehabilitation.  It is conceded by the prosecution that you appear to have responded appropriately to the charges. You appear remorseful, highly ashamed and uncomfortable about your behaviour.  This is evidenced by your two letters to the court, your two letters of apology to the victim and your expression of remorse to Mr Candlish.  These letters show that, as of now, you express an appropriate understanding of the seriousness of your offending. 

58Further in your favour is your demonstrated ability to work very well in paid employment. You are obviously thought of highly by employers.  Your work history is not a problem.  Nor, I suspect, is an ability to obtain employment on your eventual release.  It is your social life outside of work which is related to your criminal offending.

59I observe that significant family support is available for you.  Your family has not only provided personal support during court hearings but have also written references setting out their views of your character.  They have advised the court that, in their view, these offences are out of your usual character as they know it to be. They further promise support for you in the future in both a practical and emotional sense.  This is valuable support.

60There is a relevant observation that you have, in the past, shown regret for past actions which have resulted in prior prison sentences.  Sadly, regret for your past actions has not, to date, resulted in you altering your attitudes or your drug of choice.

61You blame your drug use on not being able to see your son.  You have not been able to accept that your behaviour alongside your drug and alcohol abuse have caused this problem.  This further points to a conclusion of an enmeshed and circular pattern of drug use and offending. 

62In observing your clinical profile, Mr Candlish that you acknowledge that your use of drugs has many negative consequences in your life.  Paragraph 85 onward of his report deals with these observations specifically.  He opines that you are motivated for treatment.

63Unsurprisingly, given your history, he suggests that you meet the criteria for a stimulant use disorder, a persistent depressive disorder of moderate severity and suggests that you have likely experienced, in the past, a major depressive episode.  Mr Candlish did not indicate a timeline or an event related to this.  He does not suggest that such an episode occurred at a time relevant to the commission of these offences.

64Mr Candlish expressed concern that despite a previous history of adequate self-direction, and an ability to fulfil various social and occupational roles, you are egocentric and have issues with intimate relationships. There is potential for your issues to develop into a personality impairment.

65This observation must be brought to the attention of those who will be given the duty to consider you for, and supervise you on, parole in the future.

66With such varied findings as to the cause of your offending, it is a complex task to assess your risk of re‑offending.  But Mr Candlish has given several possibilities.  In each consideration, he has discussed limitations of each type of assessment.  The raw results are included in the appendix to his report.

67Under what is referred to as the 'Static‑99R' tool, the findings place you at a risk level of 4B; a well above-average risk for being charged or convicted of another sexual offence. Under the structured professional judgment approach, a risk for sexual violence protocol called 'RSVP', you are considered to fall into the low‑risk category for sexual offending.  It is noted that the nature of the risk outline is a repetition of the current case facts.

68Alternatively, under the structured protective factors approach called 'SAPROV', your risk profile is considered to be moderate. 

69In those circumstances, this court can only make a guarded finding of your prospects of rehabilitation and only then, if any parole supervision addresses your substance abuse issues with appropriate enforcement such as uranalysis.  Your distorted views of your entitlements to intimate relationships with partners and or to child access must be addressed alongside any targeted therapy for sexual offending.

70In short, your prospects of rehabilitation are unknown.  Notwithstanding your family's support and your current significant remorse.

Appropriate disposition

71In considering other factors which might affect a sentence to be imposed, I accept your probable depressive presentation will make conditions in custody more onerous for you and may result in a deterioration of those symptoms.  I recommend and hope that once these sentences are passed, suitable mental health assistance can be provided to you while you are in custody.  It is noted, and Corrective Services are aware, of some vulnerability towards poor-coping and suicidal ideation.

72I am heartened by the provision of Buprenorphine, at present, to assist you with addiction issues.  In addition, when considering the sentence to be imposed, I accept in the Worboyes sense, that you have been in custody in excess of one year. I accept that this is time served during a difficult period of pandemic-related lockdowns.  As far as I am aware, that difficulty continues, and that difficulty may continue, for some time.  It is a matter that must be taken into account.

73Despite these difficulties, however, you have managed to complete a number of short courses while in custody.  That is in your favour as it shows, again, an ability to engage in pro-social activities and a desire to convince the court of your bona fides in that regard.

74I observe that while you are not abusing substances, your engagement appears to be very positive.  In considering the assistance to be suggested while you are in custody, Mr Candlish makes some observations which may be of assistance to Corrective Services, and I commend his report to them.

75As to requirements for assistance and supervision, obviously, probation and parole will make their own assessments and be guided by any in‑custody presentation.  However, again, Mr Candlish makes recommendations which may guide any parole supervision.  Again, I recommend his report to Corrective Services to utilise along with their own assessment tools.

Extra-curial punishment

76I turn now to the issue of extra‑curial punishment.  Your counsel has submitted that any imprisonment term ought to be ameliorated by another issue and that is by you suffering injuries during your arrest.  I note some injuries were reported to Justice Health. 

77You claim to have been beaten by police.  I viewed the short video bodycam of your arrest.  There was certainly a struggle and a police officer who was standing over you apparently landed blows on your body, it appears.  It is part of the facts that you were chased from the scene of the assault, and you ran through private households and into another household. 

78It is not known what police were responding to.  You complained of being hit with batons and punched in the head for some time.  This is not viewed on the video.  A court can take into account extra‑curial punishment, that is, a loss or detriment imposed on an offender by persons other than the sentencing court for the purpose of punishing the offender for his offence.

79The weight given to any extra‑curial punishment will depend on all of the circumstances of the case and, in some cases, extra judicial punishment attracts little or no weight.  A failure by a judge to take into account the injury suffered by an offender when the injuries did not result in a serious loss or detriment, was held not to be erroneous and this was an observation made in a case called Mackey v The Queen [2006] NSWCCA 254, a New South Wales decision.

80In the context of your case, it is my observation that the injuries suffered were described by Justice Health as being a haematoma to your right temple region alongside multiple scratches and bruises to your chest and back. Some of these injuries were observed to be related to the offence that you had committed against the complainant and some related to your arrest. 

81I do not assess these injuries to be in the context resulting in what can be referred to as serious loss or detriment. In the event that you wish to complain about the circumstances of your arrest, you ought do so through the appropriate authorities, but the injuries are not such as to be properly taken into account as extra‑curial punishment. To a greater or lesser extent, all the purposes of sentencing as set out in section 5 of the Sentencing Act are relevant to your sentence. 

Sentence

82As is often the case, some purposes of sentencing pull in opposite directions.  I accept that the protection of the community can be well served if rehabilitation is achieved.  However, this is a very serious offence that requires consideration of denunciation and deterrence. The punishment must be just in all the circumstances. 

83Therefore, the sentences I propose to impose are as follows:

84For the sexual assault offence, I sentence you to a term of imprisonment of three and a half years, and this will be the base sentence.

85For the false imprisonment offence, I sentence you to a term of imprisonment of two years, and this will be accumulated at nine months on the base sentence.

86In relation to the robbery offence, I sentence you to a term of imprisonment of two years, and this will be accumulated six months on the base and accumulated sentence.

87On my calculation, this represents a total term of four years and nine months and I order that you serve a non‑parole period of three and a half years.

88As noted already, there are, including today, 494 days that will be counted as pre-sentence detention.  I have not worked out when the expected date for the completion of your non-parole period is, but I am sure someone will do that very soon.

89In relation to the section 6AAA declaration, I advise you that without a plea of guilty to these matters and an early plea of guilty, the sentence would have been seven years with a non-parole period of five years.

90And I do not know whether we are able to work out that date are we, Vince, for Mr Kindred.  I am sure that that is the figure that he really wants to know.

91ASSOCIATE:  Yes, Your Honour.

92HER HONOUR:  So, 494 days, non-parole period of three and a half years.  While we're figuring that out, is there anything else, Mr Pickering?

93MR PICKERING:  No, Your Honour.

94HER HONOUR:  Thank you.  Anything else, Ms Lamovie?

95MS LAMOVIE:  No, Your Honour.

96HER HONOUR:  Okay.  Thank you.  What have we got, around about?

97ASSOCIATE:  If Mr Kindred went into custody on approximately 23 April 2021 and the non-parole period is three years and six months, that brings us to 23 October 2024.

98HER HONOUR:  Okay.  So this date will be confirmed but my calculation, sir, is that you'll be eligible release on parole around about 23 October 2024.  But that will be confirmed by sentence administration.  But I think that's about right.  If there's nothing else?

99COUNSEL:  No, Your Honour.

100HER HONOUR:  Okay.  Thank you very much.  We'll adjourn now.

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