Director of Public Prosecutions v Van Kempen

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-01601

DIRECTOR OF PUBLIC PROSECUTIONS

TREVOR VAN KEMPEN

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 March 2022
CASE MAY BE CITED AS:	DPP v Van Kempen
MEDIUM NEUTRAL CITATION:	[2021] VCC 452

REASONS FOR SENTENCE
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Subject:  Criminal Law
Catchwords:
Legislation Cited:  Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:  Brown v The Queen [2020] VSCA 212; DPP v Hudgson [2016] VSCA 254; DPP v Terrick [2009] VSCA 220; Gencev v The Queen [2021] VSCA 188; Nash v The Queen [2013] VSCA 172.

Sentence:Term of imprisonment of 8 years and 10 months; with a non-parole period of 5 years and 10 months.
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Petric
For the Accused	Ms S. Buckley

HIS HONOUR:

Trevor Van Kempen, you have pleaded guilty to the offence of causing serious injury intentionally in circumstances of gross violence contrary to section 15A of the Crimes Act 1958 (Vic). The maximum penalty for this offence is 20 years imprisonment.[1]
[1] Crimes Act 1958 (Vic) s 15A(1).
Pursuant to sections 10(1) and section 11 of the Sentencing Act 1991 (Vic), I must impose a term of imprisonment, and fix a non-parole period of not less than four years for an offence against section 15A of the Crimes Act 1958 (Vic), unless I find that a special reason exists.[2]
[2] Sentencing Act 1991 (Vic) ss 10(1) and 11.
The offence of causing serious injury intentionally in circumstances of gross violence is a Category 1 offence.[3] Accordingly, I must make a mandatory order for imprisonment and cannot impose a Community Corrections Order.[4] Nor can I make a combined order of imprisonment and a Community Corrections Order.[5]
[3] Ibid s 3(1).
[4] Ibid s 5(2G).
[5] Ibid.
You have admitted your prior criminal history. I do not consider your prior convictions to be relevant to your current offending.

Circumstances of Offending

I turn now to the circumstances of the offending.
The Crown tendered a Further Amended Summary of Prosecution Opening for Plea dated 28 February 2022.[6] A summary of your offending is as follows.
[6] During the plea hearing, I referred to the incorrect, earlier document. During my exchange with Ms Buckley, my error was pointed out. I have read the correct document entitled Further Amended Summary of Prosecution Opening for Plea dated 28 February 2022. I have taken the facts from this document.
The victim of your assault, Matthew Kelly, was aged 45 at the time of the offending. Mr Kelly has an intellectual disability diagnosed as fragile X syndrome and (seemingly) Tourette’s syndrome.[7]
[7] This was discussed during the course of the plea, but the Crown did not seek to remove this from its opening.
On the afternoon of 16 June 2020, Mr Kelly was dropped off near the Hopkins Bridge Milk Bar in Warrnambool by his disability support worker. On a regular basis, Mr Kelly would be dropped off at the Milk Bar, purchase a can of soft drink, and walk home.
Before the assault, Mr Kelly had yelled and waved hello to a local taxi driver. Another driver witnessed what occurred from there. I have decided to set out the Opening as tendered as it describes your conduct:
The accused was resting up against a concrete pile on the west end of the Hopkins River Bridge. The victim was nearby. Initially, [the witness] thought the two men were talking, before the victim quickly walked away from the accused.
The accused ran toward the victim and punched him once to the back of the head. The accused then moved around in front of the victim and punched him once to the face. The victim then fell to the ground, hunched over. As he continued to drive, [the witness] observed the accused kick the victim multiple times. [The witness] could not see which part of the victim’s body the accused was kicking. [The witness] stopped his car on the bridge approximately 40 to 50 metres away from the two men.
The accused continued to kick the victim as [the witness] continued driving, turning his car around at the opposite end of the bridge. He observed the accused punching the victim directly to his face. The victim was not moving. [The witness] observed the accused punch the victim multiple times to the head, using both fists, whilst the victim laid still on the ground.
[The witness] started driving towards the scene and observed the accused jumping on the victim’s head multiple times. [The witness] described each jump to be higher than the last and it appeared the accused 'was trying to kill him’. The victim was lying flat on his back with his arms by his side. He was not moving.
[The witness] observed the victim’s tongue hanging out, and he appeared to have blood coming out of his ears and mouth as well as bruising around his eyes.
You walked away from the scene but you were quickly apprehended by an off-‑duty policeman who recognised you from the description given by the witness. You initially denied committing the assault but then said, 'I’m sorry, I’m sorry I did this'. The off-duty police officer describes you becoming compliant and remorseful before stating, 'this has been building for days. It’s because of my trauma. I did this because of my trauma'.
Mr Kelly was treated at the scene. Photographs taken at the scene and then, in the hospital, were tendered in evidence depicting the injuries he sustained. The photographs are graphic and convey the real physical trauma you inflicted.
Mr Kelly required several life-saving interventions for six weeks. As a result of your vicious assault, you:
(a)fractured Mr Kelly’s skull and caused facial fractures;
(b)caused bleeding between the two innermost sheaths around the brain – a subarachnoid haemorrhage; and
(c)caused bruising around both eyes.
Blood was found in Mr Kelly's auditory canal alongside abrasions and bruising located on Mr Kelly’s eye and nose. Bruising and/or abrasions were also located under his chin, his elbow, his right shoulder and over the right part of his neck.
In the course of submissions, I was referred to the notice of additional evidence of the letter of Dr Jane Song dated 1 February 2022. Mr Kelly is a patient at the clinic in Warrnambool where Dr Song works. Dr Song, in turn, referred to the report of the rehabilitation physician, Dr Brinda Thirugnaman. Dr Thirugnaman stated that Mr Kelly’s rehabilitation was taking place against the background of having suffered a ‘traumatic brain injury’. Multiple issues and an exacerbation of some ’premorbid issues’ were identified including:
(a)   Slurred and less clear speech with marked stutter;
(b)   Right upper limb loss of dexterity;
(c)   Reduced balance, slower walking;
(d)   Multiple fears;
(e)   Subdued mood, loss of interest in activities previously enjoyed;
(f)    Reduced memory, attention and concentration; and
(g)   Reduced sensory processing including proprioception.
It was reported that Mr Kelly will require ongoing treatment with a further neuropsychological assessment and a behavioural psychologist. He will also require speech therapy, occupational therapy, and physiotherapy.
The impact statements provided by each of his siblings Elizabeth Murphy, Patrick Kelly and Maria Denney, speak eloquently of the life changing effects of your assault on their brother.
Elizabeth Murphy set out that, before the assault, Mr Kelly’s interests in life consisted of walking, cycling, swimming, mowing the lawn at his residence and using the pressure spray to clean the driveway. Mr Kelly keenly followed football and cricket on the television. Ms Murphy states that her brother has lost ability and motivation in relation to all these pastimes.
Maria Kelly considers that, from his former self, Mr Kelly has lost considerable fine motor skills, his 'spark', and his interest and ability in socialising. She concludes that he is leading a 'lesser life'.
Patrick Kelly concludes that his brother has lost much of his previous independence.
The observations made in these impact statements are profound. Those close to Mr Kelly have observed that the few things that were available to him in his very limited previous life are now largely lost to him.

Objective Gravity and Moral Culpability

I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
The seriousness of the offence of causing serious injury intentionally in circumstances of gross violence is marked by the maximum period of imprisonment that may be imposed. That is, 20 years.
It has been recognised by the courts that the offence of causing serious injury intentionally in circumstances of gross violence must be viewed by the court as being extraordinarily serious.
In the case of Nash,[8] the Court of Appeal identified factors which are to be taken into account when assessing the objective gravity of this offence. Factors which are relevant to your offending include:
(a)   Your proven intent;
(b)   The seriousness of the injury actually caused (encompassing the immediate and long-term consequences for the victim);
(c)   The victim’s vulnerability; and
(d)   The duration of the attack.
[8] Nash v The Queen [2013] VSCA 172.
The Court of Appeal has held that the first two factors, that is, intent and seriousness of the injury, particularly inform the seriousness of the offending.
Your assault was not attended by aggravating factors such as the use of a weapon or the assault taking place in company.
Your counsel, Ms Buckley, submitted that the evidence supports that you intended to cause serious injury, as opposed to really serious injury or the maximum possible injury. Furthermore, it was submitted that the intent could only have been formed immediately before the first blow was struck.
The prosecution submissions on this point merely state that it is unclear what evidence is relied on by the defence to support the proposition that your intent should be limited to an intention to cause serious injury.
Both 'injury' and 'serious injury' are defined in the Crimes Act 1958.[9] The terms 'really serious injury' and 'maximum harm' are referred to by the Court of Appeal in Nash[10] and the earlier Court of Appeal case of Terrick[11] to describe an offenders' state of mind at the time of the assault.
[9] (Vic) s 15.
[10] Nash v The Queen.
[11] DPP v Terrick [2009] VSCA 220.
Importantly, the definition of serious injury[12] includes a cumulative effect of injuries that endangers life or is substantial and protracted. Moreover, I must not lose sight of the fact that the offence charged is one of causing serious injury intentionally in circumstances of gross violence; those circumstances being that you continued with the assault whilst the victim was incapacitated.
[12] Crimes Act 1958 (Vic) s 15.
In essence, Ms Buckley submitted that I should not lose sight of these factors in assessing your intent at the time of the assault.
I am satisfied that you formed an intent to assault Mr Kelly only moments before you punched him for the first time. You told the forensic psychiatrist, Dr Zimmerman, that you had felt fearful that day and that you reacted aggressively to what you perceived to be a threat from a larger male. You described feeling fearful and attempting to ‘knock out’ the victim.
Frankly, I give your account to Dr Zimmerman very little credence. The evidence of the witness is that after a brief exchange, the victim quickly walked away from you. You then ran towards the victim and punched him to the back of the head. You then circled around and punched him again, this time, to the face.
I conclude that you formed an initial intent to cause serious injury. As you described to Dr Zimmerman, you intended to 'knock out' the victim.
As I have outlined, the injuries you caused to Mr Kelly were life-threatening and life-changing, but I cannot conclude that you intended to cause the specific injuries inflicted. Nevertheless, Mr Kelly fell to the ground after your initial punch or punches to the head. Your assault upon him was sustained and vicious. In fact, I can only conclude that the viciousness of your attack increased the longer Mr Kelly lay on the ground.
Thereafter, whilst the victim was on the ground and offering no resistance, you kicked him multiple times. You also punched him multiple times with both fists to the head whilst he lay on the ground and before jumping on his head multiple times. You only stopped your attack when the witness sounded the horn of his car as he approached the scene.
I am satisfied that at least by the time you jumped on his head multiple times, you had formed an intent to cause really serious injury to Mr Kelly.
Ms Buckley submitted that your moral culpability for this offending is reduced. I shall return to the question of your moral culpability after I have outlined your personal circumstances and the report of Dr Zimmerman.

Personal Circumstances

You are 37 years of age. You were born in September 1984 in Perth.
Your parents divorced when you were less than a year old.
Your mother had a number of partners after your parents separated before entering a long-term relationship with Shane when you were aged eight. Shane was physically and verbally abusive towards you. I note you have one half-sister‑ with whom you are not in contact.
Your mother smoked cannabis when you were a child. Two of her partners sexually abused you. At the age of seven, you were sexually abused by a teenage neighbour.
After Grade 5, you moved in with your father in Warrnambool. You attended five different primary schools. Whilst you enjoyed school in general, you struggled to integrate socially and academically. You were also bullied. You then attended secondary school in Perth until the middle of Year 10. You then attended school up until Year 11 in Warrnambool. You were bullied and you self-‑harmed. You attempted suicide on one occasion and you were admitted to hospital.
Your father has re-partnered and he has three other children. You have little to do with them.
You have not had any long-term intimate relationships, nor do you have any children. You are socially isolated except for the meaningful relationship you have with your uncle and your friend, Mark.
You previously worked in a bakery, briefly at your father’s fibreglass factory and in the oil and gas industry for nine years. You last worked in 2017 as a welder.
You first used cannabis at the age of nine. You began to use cannabis regularly in your mid to late teenage years, and through your twenties and thirties. You have smoked methylamphetamine on and off over the years. You also consumed alcohol and experimented with other drugs.
You have a very limited prior criminal history, with no history of violent offending.
I received a character reference from your uncle, Norman Bernard. Mr Bernard states that you have expressed remorse to him for your offending, and that the man he knows both loves and respects his family and community.
I have read the report of Dr Nina Zimmerman, forensic psychiatrist, dated 22 January 2022. Dr Zimmerman carefully reviewed your upbringing and documented medical history.
You have long presented what Dr Zimmerman calls a 'diagnostic dilemma' as to whether you have a psychotic illness or complex trauma and borderline personality disorder with no evidence of psychosis. Dr Zimmerman notes that you were decertified in custody, monitored for a period of time, cleared to mainstream and that there was then no evidence of major mood or psychotic disorder. Moreover, Dr Zimmerman notes that there is no delusional quality to your account of your offending and that although you were in a heightened state of paranoia, you were able to describe punching and kicking Mr Kelly repeatedly.
Dr Zimmerman concludes that your borderline personality disorder contributed to your dis-regulated expression of anger and heightened perception of threat in your environment. Dr Zimmerman notes essential features of borderline personality disorder to include 'impulsivity, intense albeit fleeting feelings of anger and dis-regulated emotional state postmarked when the individual is in crisis'.
Dr Zimmerman concludes, at paragraph 151 of her report, that '[t]hese characteristics were in evidence at the time of your offending. As a result of [your] dysregulated emotional state, [you] will have had an impaired ability to think clearly and to make calm, rational decisions'.
I now turn to the question of whether a special reason exists which is relevant to the imposition of the non-parole period.
I am not required to impose a minimum period of not less than four years if a special reason exists. In this case, Ms Buckley submits that you have proved that, at the time of the commission of the offence, you had an impaired mental functioning that was causally linked to the commission of the offence and that this ought to substantially and materially reduce your culpability.
Essentially, Ms Buckley submits that the diagnosis of borderline personality disorder fulfils these criteria.
Impaired mental functioning is defined as, amongst other things, a mental illness, which in turn, is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory. Ms Buckley submits that the court in Brown v The Queen[13] held that an offender diagnosed with a personality disorder should be treated as in no different position from any other offender who seeks to rely on an impairment of mental functioning as mitigating sentence. Logically, she submits that this also applies to the special reason provision.
[13] [2020] VSCA 212 at [6].
The Crown submitted that I should not conclude that a special reason exists to mitigate the non-parole period. Mr Petric submitted that Dr Zimmerman’s report stated that whilst your borderline personality disorder contributed to learning to respond to perceived provocations in an angry and dis-regulated manner, Dr Zimmerman concluded that these factors left you ‘struggling to control your frustration’ at the time of your offending.
Furthermore, despite you being in a distressed and frustrated state of mind, you were able to describe the assault that you perpetrated. Dr Zimmerman concluded that ‘there do not appear to have been any transient psychotic phenomena that were present or linked to the attack. He was aware that his behaviour had harmed the victim and rang 000 afterwards'
Mr Petric further submitted that in your interview with Dr Zimmerman, you focused on the injustices and provocations which led you to the point of offending and a desire to get others to 'understand what you were going through at the time'. I note that after initially denying your offending to the police officer who apprehended you, you told him that you did this 'because of the trauma'.
In the end, I am not satisfied that a special reason exists. In my view, the traits of the borderline personality disorder you exhibited on the day of your offending do not amount to a significant disturbance of thought or perception. Whilst you appear to have been disinhibited, paranoid and making poor judgements, it is apparent that you were entirely cognizant and oriented as to time and place, and as to the wrongfulness of your actions.
Moreover, you were able to display some remorse and to significantly apportion blame for your actions on your trauma. In those circumstances, I am not prepared to find that you suffered impaired mental functioning which would enable me to conclude that a special reason exists thereby justifying a non-parole period of less than four years for your offending.

Submissions

Ms Buckley submitted that the following factors should operate to mitigate your sentence:
(a)Your early plea of guilty has both utilitarian benefit and facilitates the course of justice;
(b)Your plea and subsequent statement evidence remorse;
(c)Your time in custody has been made harder by the COVID-19 pandemic; and
(d)Specific deterrence has less weight given your lack of prior convictions.

Ms Buckley also submitted that I should find that your moral culpability is reduced; that in the absence of finding that special reasons exist, I should be satisfied that at least limbs 5 and 6 of Verdins apply to mitigate the sentence imposed. Although protection of the community may figure largely in the sentencing consideration, your prospects of rehabilitation would be better enhanced by mental health treatment.
Ms Buckley referred me to a number of sentences of this Court, and to the Court of Appeal decisions of Hudgson[14] and Gencev.[15]I have considered them, but I must take into account the circumstances of your offending, and the matters personal to you; and I must not be overly influenced by the outcomes in other cases.
[14] [2016] VSCA 254.
[15] [2021] VSCA 188.
Mr Petric for the Crown submitted that the only appropriate sentence is a term of imprisonment with a non-parole period. Mr Petric also submitted that your early plea should mitigate your sentence. Mr Petric further submitted that your remorse was limited because you initially denied the offending and blamed your trauma. Lastly, Mr Petric acknowledged that the pandemic had made your time in prison more difficult.
I agree that your early plea should mitigate your sentence; all the more so for being made at a time when court listings have been thrown into disarray by the pandemic. It is to your credit that an early plea was entered and made.
I turn to the question of remorse. Whilst you initially denied the offending, you certainly took responsibility for it only a few minutes after you were challenged by the police. I am also prepared to accept that what you told Dr Zimmerman is that you were shattered by what happened; although it is also clear that you have maintained in your account to her that outside influences are much to blame. It is also apparent from your uncle’s reference that you expressed your remorse to him. In those circumstances, I am prepared to find that you have expressed some remorse for your offending.
I do take into consideration that your time in custody has been affected by the COVID-19 lockdowns. The immediate effect of any lockdown is a reduction and suspension of vocational and personal improvement courses, restriction on your ability to move around the prison, a severe reduction in work available and a suspension of all personal visits.
The other more insidious effect of the pandemic and lockdowns is the stress caused to you and the isolation - that is, the fear that the pandemic would penetrate into the prison system. As a result, isolation has been extensively used by prison authorities as a strategy to limit close contact. I shall take this into account as a mitigating factor.
As I set out earlier, a person convicted of this offence must, in the absence of a special reason, receive a non-parole period of not less than four years.
In addition to this, I am not satisfied that your moral culpability should be particularly reduced by your condition. I will not discount your mental health issues altogether, but I consider that you must be held morally responsible for this sustained, vicious attack, which finished only when the witness driving by sounded his car horn. Principles of general deterrence, denunciation and a measure of protection of the community, must figure in the sentencing consideration. I agree that specific deterrence does not have as much work to do given your lack of relevant prior convictions.
The question of your rehabilitation and the issue of Verdins do appear to intersect. Whilst you blamed this offending on your earlier trauma, it is worrying that, as Dr Zimmerman points out, you have refused to engage with professional help whilst in prison. Dr Zimmerman’s report and the submissions of your counsel both point out that your rehabilitation, and indeed, mental well-being, could be enhanced by professional mental health intervention. I consider that your prospects for rehabilitation are indeed tied to accepting medical and psychological help for your condition.
Dr Zimmerman considers that your borderline personality disorder means that prison is more likely to be onerous for you. You should not be punished for the fact that you are not accepting treatment, but I do note that Dr Zimmerman also states that your condition appears to have stabilised whilst in mainstream custody. In my view, there should only be a very slight moderation of your sentence to take account of the Verdins principles.
It seems to me that your prospects of rehabilitation would be enhanced by the opportunity for a reasonable period of parole. I note that you have no relevant prior convictions, so although you have endured long-standing mental health issues, they have not previously resulted in significant violent or criminal offending. Parole, if granted, would provide you with the structure and supervision required to assist your reintegration back into the community once you are released from prison.

Orders

Accordingly, I make the following orders.
On the charge of intentionally causing serious injury in circumstances of gross violence, you are convicted and sentenced to eight years and ten months. I order that you serve a non-parole period of five years and ten months before you are eligible for parole.
I declare that you have served 650 days pre-sentence detention not including today and I reckon that period as already served.
Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have sentenced you to a term of 11 years with eight years to serve.

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[2022] VCC 452

31 March 2022