R v Kershaw

[2019] NSWDC 912

District Court

New South Wales

Medium Neutral Citation:	R v Kershaw [2019] NSWDC 912
Hearing dates:	15 November 2019
Date of orders:	15 November 2019
Decision date:	15 November 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Convicted. Sentenced to imprisonment for a period of 3 years & 6 months, with non-parole period 2 years & 4 months
Catchwords:	CRIMINAL LAW – take and detain in company – actual bodily harm –victim with intellectual disability –parity – In company - Planned offending – On conditional liberty at time of offending
Legislation Cited:	Crimes Act,1900
Cases Cited:	Bugmy v R [2013] HCA 37 R v Newell (2004) NSWCCA183
Category:	Sentence
Parties:	The Crown Matthew Leslie Kershaw
Representation:	Counsel: Ms B O’Reilly – Crown Mr T Thorpe - Offender Solicitors: Director of Public Prosecutions Legal Aid Commission
File Number(s):	2017/255939

SENTENCE

1. HIS HONOUR: Matthew Leslie Kershaw is before the Court for sentence in relation to an offence of take and detain in company with in intent to take advantage and in the course of that occasioning actual bodily harm in breach of s 86 subs 3 of Crimes Act, 1900 that matter carries a maximum penalty of 25 years and there is no standard non-parole period applicable.

2. The offence was committed on the 16 August 2017 and Mr Kershaw was arrested on 22 August 2017 and has been in custody solely referrable to this matter ever since. The matter has a slightly complex procedural history.

3. Mr Kershaw was originally committed for trial from the Nowra Local Court on 22 January 2019, thereafter on 26 July 2019 he entered a plea of guilty at Wollongong District Court in the context A super call over.

4. His trial had initially been allocated to the August 2019 sittings at the Nowra District Court and in the event there was a disputed facts hearing in which Mr Kershaw was differently represented to the way he is now. Having heard evidence on the disputed facts hearing I rejected his plea, in part because he traversed aspects of his plea in evidence. The matter was then adjourned for trial later in the Nowra sittings and on 19 August 2019 a jury was empanelled and a trial commenced.

5. On 20 August 2019 the jury was discharged by consent of the parties and a further jury was empanelled on 21 August 2019. On 28 August 2019 that jury was discharged on the basis that a raft of further material that had previously been undisclosed was provided by the police to both the office of Director of Public Prosecutions and immediately then to those who represented Mr Kershaw.

6. Although the matter had been adjourned for trial to a later sittings at Nowra in the event Mr Kershaw entered a plea of guilty which I accepted on 30 August 2019. It must be said that some of the further material that was served gave some power to the account that Mr Kershaw had advanced in the disputed facts hearing and for current purposes in terms of ultimately a calculation of the utilitarian discount I am persuaded that it is appropriate to give Mr Kershaw the discount that would have been available to him at the time of the disposition of the disputed facts hearing that was initially listed.

7. That complicated procedural history and the facts to which Mr Kershaw ultimately agreed have relevance in terms of the parity exercise. I have previously sentenced all of the other offenders in relation to the detain offence, but sentenced each of them on the basis of Mr Kershaw having a role much more influential and effectively as a principal in the detention which is not made out on the facts to which he has now pleaded. I will say something more about that when I come to deal with parity in due course.

8. The following matters are drawn from the agreed facts. The victim in the matter is a person called Fiona Rixon who is now 43 years old. She suffers from a moderate intellectual disability. She had been in an intimate relationship with the co-offender Carol Raymonde for about six years and the relationship had ended in acrimony in February 2017. Prior to Wednesday 6 August each of the co-offenders Carol Raymonde, Yvonne Raymonde, Melissa Crowe and Stephen Chin discussed a plan to kidnap the victim for a financial advantage. Yvonne Raymonde who I sentenced on the basis of having much more subsidiary role in the events admitted in the statement dated 23 August 2019 that she created a full Facebook account in the name of Fiona Rixon and wrote comments about the offender’s dog being poisoned and the offender doing matters of sexual misbehaviour towards his own son.

9. The account was created because Yvonne Raymonde knew that this offender would get angry if he saw that and “go after” Fiona Rixon in the fashion that she wished that he did. Yvonne Raymonde took photos of the false Facebook account and sent them to the accused’s mobile phone and alongside a text message that said “Okay I have got bad news Fiona has written rude stuff about you, Alex and Vanessa on Facebook.” Alex being the offender’s young son, Vanessa being his partner and the mother of that child. Yvonne Raymonde wanted Fiona Rixon kidnapped because she hoped that Fiona and her mother would reunite.

10. The offender told both Ms Crowe and Mr Chin to collect the victim from her residential premises in Nowra and bring them to his home. About 3.40 on 16 August 2017 Ms Rixon was at home Mr Chin and Ms Crowe approached the residence and effectively took Ms Rixon to the offender’s premises. The offender upon her arrival at his premises said to her “I ought to kick your teeth in for what happened to Leddy” which was a reference to the suggestion that Ms Kershaw had baited his dog.

11. The victim began to cry and was fearful of Mr Kershaw, Mr Kershaw said to her “You are not going anywhere I am going to be holding you hostage”. At that time he was aware of the posts that implicated Fiona both in the poisoning of his dog and also making allegations that the accused and his partner were molesting their own child.

12. At some stage of events Crowe demanded car keys from the victim, the victim remained in the front bedroom of the premises, thereafter Crowe started to yell at her, the victim was punched by Crowe’s head and upper arm. The accused took the victim into the dining room where he said “You have to sign your car over to me if you don’t Melissa will come and bash you again”. She feared she was going to be hurt so Ms Rixon signed over registration papers of her white Mazda sedan handing ownership to Mr Kershaw. Later Mr Kershaw took the victim into the lounge room. Ms Crowe was smoking marihuana and blew bong smoke to the victim’s face. Mr Kershaw clicked his fingers and Ms Crowe got up and punched the victim with a closed fist to the back of the head and her upper arm.

13. She kneed the victim in the ribs. In due course Ms Crowe took the offender’s wallet, removed all the cards from it and took possession of the victim’s mobile phone into which she put her own SIM card. Mr Kershaw directed the victim to snap her SIM card and that had the effect in due course of her being unable to be reached by her mother.

14. In due course Mr Kershaw left the lounge room and came back with a piece of blue and yellow rope, he said to the victim “I am sorry I do not want to tie you up, I have got no choice”. He tied her hands loosely behind her back. Eventually she was able to get free. He told Ms Rixon “If you go to the police about what has happened to you I will kill you”. Mr Kershaw took the victim out to the rear of a black Ford sedan and invited her to take a seat in the boot, and events were recorded by CCTV camera. At about 6.30 at night the victim backed into the boot and lay on her side.

15. Mr Kershaw said “I want to take you out to the bush and burn you”. The boot was in fact closed by Ms Crowe. Chin was in the immediate vicinity but doing nothing to assist the victim. In due course Crowe drove the vehicle away with Chin as the front passenger and the victim in the boot. She was driven to a short distance to some premises where Carol Raymonde and Yvonne Raymonde were living.

16. She was delivered up to Carol Raymonde and Ms Crowe said to Carol Raymonde “I bashed her just for you”. Crowe and Chin then left those premises and walked back to this offender’s house. The reality was that Ms Rixon thought that she had been saved by Carol and Yvonne Raymonde without realising that she was being held incommunicado as a subject of the offence, and this perpetuated at least as far as those two offenders were concerned for some further period of time.

17. In terms of assessing the objective seriousness of the matter, it must have been a very frightening episode for Ms Rixon, more particularly so in circumstances where there were a number of people involved in the offence and that the offending subsisted over a period of time. The matter is aggravated in my view because of Ms Rixon’s mental deficits. Although Mr Kershaw took some primary actions in relation to the detention, it is to be noted that he was in the dark about the original plan and each of his co-offenders made arrangements to commit the offence and then Yvonne Raymonde manipulated Mr Kershaw’s own vulnerabilities to achieve what she wanted which was for him to become enraged and treat Mr Rixon in a poor fashion.

18. In sentencing each of the co-offenders I had something to say about relevant factors that can be derived from R v Newell (2004) NSWCCA183. In this case the fact that the detention was committed in company, that is an element of the offence and it does not served to additionally aggravate similarly the occasioning of the actual bodily harm which was, I note towards the lower end of the range is an element of the offence and it does not serve otherwise to aggravate as I have previously observed the conditions of the detention initially, I am talking about both in the house and in the boot were very serious because of the circumstances of that, the fact that corporal punishment was occasioned to her and threats to kill her were made.

19. Mr Kershaw was in breach of conditional liberty when he offended. He had recently been placed on a s 9 bond and I take into account that the objective seriousness of the matter is increased because of that, the objective seriousness that the offending is about at the midrange, the offender has a record that denies him leniency and places him as some risk of being institutionalised.

20. I accept Mr Thorpe’s careful submission for him on the basis of all the subjective material that Mr Kershaw is at the crossroads. He has a partner who is finding it very difficult to look after their two young children. Their five year old son has ADHD and it must be said that I saw him when the matter was listed for hearing yesterday in court and he is, to use the euphemism, a very expressive bubbly boy. It is no question that the mother of those children has suggested sucicidal ideation although the matter does not quite get to the exceptional circumstances that mean that the sentence itself would be reduced by that factor. It is clear that the effect on both his partner, the two young children and indeed on the offender, being able to observe the difficulties his partner faces in parenting and without his influence, it is a matter that has a deal of significance in the instinctive synthesis that is required for the sentencing exercise.

21. I accept that Mr Kershaw’s time in custody to date has been more difficult than for some offenders. In part that is because he has been on remand for a long time and therefore subjected to maximum security conditions and he has not been able to move through the classification system in the way that he would have, had he been sentenced earlier.

22. The material set out by Ms Manoski who is a forensic psychologist, I am prepared to accept on the balance of probabilities even though Mr Kershaw has not given evidence, there is some material in his record and other material that I have come to know about him, that means I am prepared to give weight to the history given and particularly to the very difficult circumstances of child sexual abuse that Mr Kershaw suffered.

23. That has particular relevance in this sentencing exercise for two reasons. First, his fear of having an explosive reaction to anyone who made an improper sexual advance to him means that he is hypervigilant in custody. He spends a lot of time alone to mitigate that risk and also to keep himself safe. Additionally as I have already briefly adverted to, Yvonne Raymonde, who I gather must have known at least some of this offender’s personal history, designed the false communications in such a way to absolutely agitate him. One can only imagine how somebody who has been sexually abused across a range of years would be offended by the notion that he would behave in the same way towards his own son.

24. Accordingly, even though the objective seriousness of the offending is at the mid-range, his moral culpability is significantly reduced. The Crown submitted in assessing the competing criminality that I would find Mr Kershaw’s criminality about the same level as Carol Raymonde’s. Having considered the matter carefully, I consider that he is less culpable than her even though he does not have the intellectual deficits that each of the other offenders had. He had less involvement in planning and although it was entirely misguided he was behaving in a way consistent with a set of events that was clearly wrong, as part of the plan of the other offenders. There was provocation at play, but by design of the co-offenders, not the victim.

25. As I have said parity become slightly more complex in this circumstance because each of those other offenders, that is, Crowe, Chin, Carol Raymonde and Yvonne Raymonde were sentenced on the basis that Mr Kershaw was the planner and the principal of the detention when in fact I consider that he is the least morally culpable, notwithstanding some of the outrageous things that he did to Ms Rixon.

26. I have had regard to the sentencing assessment report. The offender is assessed as being a medium risk of re-offending. I have a guarded view about his prospects about rehabilitation. If his commitment to his partner and particularly to his young children continues and his expressed desire to seek drug rehabilitation treatment and violent offender programs is maintained, his prospects for rehabilitation will improve.

27. Mr Kershaw, before I announce the sentence I just want to say something to you about what you have told the psychologist and Probation and Parole and your barrister and your lawyer about what you want now. You had an upbringing that is consistent with what the High Court considered in a case called Bugmy v R [2013] HCA 37. In other words you had a very disadvantaged background and I am going to place a lot of weight on that because it means it was harder for you to resist the way you responded to Ms Raymonde’s manipulation. The difficult circumstances of the way your mother treated you, the minimal relationship you had with your father and even some of your grandmother’s unkindness to you meant that you were vulnerable and then this man preying on you, that’s all created some things to sort out. If you just cover that up with the use of drugs and particularly cannabis in your case, it means that that is just a sore that keeps festering underneath the drug use.

28. I accept that you are now drug free and if you can get rid of the drug use covering that up and you are brave enough to talk to people, a psychologist or somebody about how being treated in that way made you feel, you are eventually going to end up being able to be a strong drug free parent. Then you can be the kind of parent to your kids that your mother and certainly your father were not to you. So that is just a little bit of encouragement to say that even though sometimes it is hard to talk about these things you will become free if you do it. Whereas if you do not do that work it means that your father, your mother and that horrible neighbour who did those things to you for all those years, they win in your life because they keep wrecking your life.

29. I find special circumstances on the basis of Mr Kershaw’s need for a more extended period of supervision in the community, so that he can treat both his drug addiction and also attend a violent offenders’ program in the community, which I believe will be more constructive for him than doing it in custody. I am determined to give him the full backdate of course, the date that he went into custody on 22 August 2017. The Crown contended for utilitarian discount of 10% where as Mr Thorpe contended for a utilitarian discount in a range of 10 to 15%. I ultimately exercise my discretion to impose a utilitarian discount with a bit of rounding of 15% in the circumstances of this case.

30. The formal orders are that the offender is convicted. He is sentenced to a term of imprisonment of 3 years and 6 months to date from 22 August and to expire on 21 February 2021. That is the longest period that you could serve in total in relation to the matter.

31. I find special circumstances. I set a non-parole period of 2 years and 4 months which means that the non-parole period expires on 21 December 2019 and that means the earliest date of release to parole, for consideration of release to parole is 21 December 2019. I recommend that the State Parole Authority consider imposing a condition that the offender attend both the Violent Offenders program and intensive drug rehabilitation upon release to parole.

32. There has been a shortening of the sentence beyond what it otherwise would have been, apart from the utilitarian discount, because of the condition that he has served almost the whole of his non-parole period in maximum security.

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Decision last updated: 12 June 2020