R v Pinder

[2024] NSWDC 82

District Court

New South Wales

Medium Neutral Citation:

R v Pinder [2024] NSWDC 82

Hearing dates:

9 February 2024; 8 and 21 March 2024

Date of orders:

21 March 2024

Decision date:

21 March 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Kendal Nathaniel Pinder is convicted.

2   I impose an aggregate term of imprisonment of 8 years with a non-parole period of 5 years to date from 26 October 2021. The non-parole period will expire on 25 October 2026 and the head sentence will expire on 25 October 2029.

3   The offender will be eligible to be released on parole on 25 October 2026.

Catchwords:

CRIME — Sexual offences — Aggravated sexual assault

CRIME — Sexual offences — Sexual assault — Without Consent

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Olbrich (1999) 199 CLR 270

R v Youkhana [2004] NSWCCA 412

Category:

Sentence

Parties:

Rex (Crown)
Kendal Pinder (Offender)

Representation:

Counsel:
D Waldmann (Crown)
A Betts (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Azadi Lawyers (Offender)

File Number(s):

2021/163418

Publication restriction:

None

Judgment

Introduction

1. Kendal Nathaniel Pinder (the offender) appears for sentence after pleading guilty in the District Court to the following offences:

1. aggravated sexual assault contrary to s 61J(1) Crimes Act 1900. The maximum penalty for the offence is 20 years imprisonment and parliament has prescribed a standard non parole period of 10 years; and

2. sexual intercourse without consent contrary to s 61I Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment and parliament has prescribed a standard non parole period of 7 years.

Approach to Sentencing

2. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and the factors set out in s 21A of that Act

3. The offender entered pleas of guilty in the District Court and is entitled to a 5% discount on sentence: s 25D(2)(c) Crimes (Sentencing Procedure) Act 1999.

4. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Facts

5. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

6. In 2007 to 2008 the offender lived in Hammondville. The complainant met the offender in about 2007 when she lived across the road from him. The offender and the complainant commenced a casual sexual relationship around this time.

Count 1 - Aggravated sexual assault

7. At about 10am on 7 November 2009 the offender attended the complainant’s house in Revesby. The offender led the complainant to the bedroom where they had consensual sexual intercourse. After some time, the offender pulled his penis out of the complainant’s vagina and put a finger and then a second finger into her vagina. The offender said “I think I can probably put my hands in you” referring to her vagina. The complainant was shocked but consented at that point in time.

8. The offender put all five fingers into the complainant’s vagina. He then twisted his fingers into a small group to try and insert his whole hand. His fingers were straight when he put them inside her vagina. When he tried to insert his fingers past his knuckles, the complainant started to experience pain. A short time later she said, “no I can’t do it it’s not going to fit”. At this point she no longer wanted the offender to place his fingers or hand inside her vagina. The complainant pushed his hand out of her vagina, rolled over and started to crawl off the bed on her knees to get away. The offender grabbed her left ankle and dragged her back towards him. At the time the complainant weighed approximately 58 kgs and the offender weighed at least double that. The offender forcefully flipped the complainant onto her back and said, while laughing, “if you just relax it will be alright”. She said, “no I can’t” and he replied, “yes you can”. The offender then put more oil on his hand before forming a fist and with a quick forced movement put his whole hand into her vagina. The complainant did not consent to this. Once his entire hand was inside her vagina he said “see, it works”. The complainant felt her body go numb and said “get it out”. After about two seconds the offender removed his hand.

9. When he removed his hand, a warm gush of blood left the complainant’s vagina. She went to the bathroom to try and wash the blood off, however as she walked to the bathroom she saw heavy bleeding from her vagina onto the floor. The offender asked if she was alright before he came into the bathroom and told her that he needed to take her to the hospital due to the amount of bleeding. The offender gave her a towel and put pressure against her genitalia. He drove her to the Bankstown Hospital in his motor vehicle.

10. Once the complainant arrived at the hospital she was taken for surgery. A 700ml blood clot was removed from her vagina, which continued to bleed heavily. The complainant required a blood transfusion. An examination was carried out under anaesthetic, noting an intensive perineal tear and an 8cm left antero-lateral vaginal wall tear that required sutures. The injuries were described by the expert as serious and life-threatening but expected to have minimal ongoing functional impairment. The complainant was in hospital for a few days. She required numbing cream to assist her with sexual intercourse because the injury caused pain.

11. On 6 June 2011 the offender separated from his wife and he moved in with the complainant in a unit in Sutherland. On 24 November 2011 they had a son. In August 2013 the complainant moved to Revesby with her son. The offender and the complainant continued to have a casual sexual relationship until 31 March 2021.

Count 2 – Sexual assault without consent

12. On 29 March 2021 the offender came to the complainant’s house and spent the night, sleeping with the complainant in her bed. At about 5am on 30 March 2021 the complainant was asleep. She was wearing underwear and a black nightie. She felt the offender pull her underwear down. She tried to pull them back up, but he persisted and removed her underwear. The victim was asleep on her back. The offender got on top of her and penetrated her vagina with his penis. The penetration woke her up. She opened her eyes and said, “I’ve got my period what are you doing”? The offender continued. The complainant tried to push the offender off her, but he was too strong. The complainant laid still while the offender continued to penetrate her for five or 10 minutes and then ejaculated inside her.

13. The complainant was angry with the offender. The complainant and the offender attended his psychologist together where he made admissions to the psychologist in the presence of the complainant.

14. On 28 April 2021 the complainant made a complaint to the police.

15. On 7 June 2021 police attended the Metropolitan Remand and Reception Centre at Silverwater and placed the offender under arrest. At that time he was in custody for another matter.

The Offender’s Case on Sentence

16. The offender tendered the following documents:

1. letter of the offender to his mother dated 16 October 2021;

2. Neuropsychological Assessment Report of Ms Lisa Zipparo dated 16 June 2023;

3. affidavit of the offender dated 4 September 2023;

4. character reference of Mr Andrew Lazaris dated 4 September 2023;

5. Psychological letter of Mr Chafic Awit dated 5 September 2023;

6. Psychiatric Report of Dr Richard Furst dated 1 February 2024; and

7. undated letter of the offender.

17. The offender was also called to give evidence and was cross-examined.

18. The following is a precis of the evidence relied on by the offender.

19. The offender was born in the Bahamas in 1956. He is 67 years of age. He was the third eldest of his mother’s children, with four brothers and five sisters. They did not all share the same father.

20. The offender’s father was a police officer who inflicted domestic violence on his mother on a regular basis and was also physically abusive towards him. His father would constantly slap him and punch him around his head and on one occasion held a gun to his head.

21. When the offender was about 12 years old his parents separated, and he moved to Miami to live with his aunt and uncle.

22. A short time after moving to Miami, the offender suffered a significant head injury as a result of being thrown through a thick plate glass window by his cousin during the course of an argument. He suffered significant head and torso lacerations and was hospitalised for several weeks following this incident. Since the head injury, the offender has reported experiencing significant cognitive symptoms including difficulty with reading, writing and memory.

23. During his teenage years, the offender also witnessed several murders and a lot of violence on the streets of Miami.

24. The offender attended high school in the United States before being awarded a sporting scholarship to attend university where he completed a business administration degree with the aid of a tutor and played college level basketball.

25. After university the offender had a career as a professional basketball player. He played professionally for the Harlem Globetrotters until he broke his leg in 1983. Once recovered from this injury he played for professional teams in Finland and Israel and then moved to Australia in 1985 where he played professional basketball until age 39. During his time as a professional basketball player, he also suffered multiple knee injuries.

26. During the 1990s, the offender was convicted of multiple sexual offences and served time in prison. While in prison he was attacked by a group of men and was hit on the back of the head resulting in concussion.

27. The offender has been married and divorced three times and has eight children ranging in age from 12 to mid-30s. His marriages each lasted between eight and 10 years.

28. The offender’s mother died from COVID-19 in 2021. He looked after his mother financially, having bought her a house and felt responsible for her wellbeing. He was unable to attend his mother’s funeral as he was incarcerated at the time and was devastated by his mother’s passing.

29. On 30 January 2024 the offender was assaulted in prison and suffered a head injury. He suffered a closed head injury that caused a bilateral subarachnoid haemorrhage at the inferior margin of each frontal lobe. He underwent two CT scans of the brain at the Auburn Hospital.

30. In his evidence, the offender expressed remorse and accepted that he caused harm to the complainant. He said that he cared for her over a long period of time and did not want to hurt her.

Findings on Offender’s Evidence

31. The offender was challenged on his history to Ms Zipparo of childhood exposure to violence by reference to the history given to Professor Freeman in earlier proceedings, where he made no such complaint. It is ultimately not necessary to resolve this conflict in the evidence because I am not satisfied that it reduced his moral culpability any more than what his cognitive impairment does, for reasons that I will come to.

32. The offender gave his evidence in a fairly forthright manner. I do not accept that Ms Zipparo’s diagnosis was a lightbulb moment for the difficulties he has experienced in life. I accept his evidence that he had genuine feelings for the complainant for many years and that he realises that he has hurt her. Overall, I accept his evidence which reflected his cognitive difficulties.

Report of Lisa Zipparo, neuropsychologist

33. The offender was referred for neuropsychological testing with Ms Zipparo, by his solicitor. The Crown challenged the findings of Ms Zipparo and required her for cross-examination. The content of her report can be summarised as follows.

34. Ms Zipparo was given a history that was largely consistent with the offender’s evidence and the other documents. He confirmed that his father was violent and that he witnessed a lot of violence growing up in Miami. The offender told Ms Zipparo that he required extensive rehabilitation after the head injury at age 12 and that was the start of his learning difficulties. He suffers from headaches and regular nose bleeds, which he attributes to previous head injuries.

35. Ms Zipparo observed that the offender did not display mood disturbance, delusional thinking or hallucinations. She thought that his answers tended to be verbose and at times tangential. She opined that he had an avoidant personality style based on the outcome of his previous relationships and noted no prior history of depression, anxiety or trauma responses from his violent upbringing.

36. Ms Zipparo administered a number of neuropsychological tests. His general intellectual ability was assessed in the borderline range, consistent with his own premorbid estimate. He displayed impaired performance in several tasks involving executive function, including verbal abstract reasoning, verbal fluency, working memory and inhibitory control. His verbal memory was consistent with his intellectual abilities, in the borderline range. He was assessed by reference to objective measures of motivation and effort, as having put in good effort to the assessment tasks.

37. Ms Zipparo’s assessment of the offender’s scores indicated he was close to being intellectually disabled. Aspects of his cognitive functioning were impaired, particularly his executive functioning which indicated frontal lobe dysfunction. Persons with frontal lobe dysfunction are:

1. prone to impulsive behaviour because the frontal lobes control decision making, (including risk assessment and outcome) and impulsive behaviour; and

2. known to be less flexible in their behaviours and have difficulty diverting or inhibiting undesirable responses.

38. Ms Zipparo opined that with his limited cognitive ability the offender was less likely to be able to question his ingrained attitudes related to violence, women and relationships from his upbringing, and was less likely to benefit from the sex offender programs that he participated in during his previous incarcerations. She opined that he would benefit from future sex offender treatment, but only if it was tailored to take into account his cognitive restrictions. She noted that he would benefit from programs offered by the Additional Support Units at the Long Bay Correctional Centre. She opined that further improvement in his condition could be achieved through a tailored cognitive training program, but that type of treatment is not available in custody.

39. Ms Zipparo gave evidence that the offender suffered from impairments in his mental flexibility, abstract thinking and inhibitory function, which are all matters specific to the verbal domain of the brain governed for the most part by the left hemisphere. She opined that his presentation was more consistent with an acquired brain injury rather than a disease process, which would usually impact both hemispheres of the brain. Ms Zipparo opined that the most likely cause of his injury was the incident when he was 12, for which:

1. he has a large scar on the left-hand side of his skull;

2. he required a considerable period of rehabilitation; and

3. he reported substantial changes in his academic ability.

40. Ms Zipparo opined that he most likely suffered an injury to his dorso-lateral prefrontal cortex (PFC) that controls executive functioning, including the ability to plan and make decisions, the capacity to inhibit impulses and the ability to predict outcomes. Ms Zipparo stated that the offender may have had other head injuries and subconcussive impacts as a result of his life as a professional athlete, which could have contributed to his decline in cognitive function.

41. Ms Zipparo gave evidence that his exposure to violence as a child may have contributed to his impaired cognitive function because the fear caused by traumatic events overstimulates the amygdala which shuts down of the frontal lobe and thereby impacts the development of executive functioning.

42. Ms Zipparo gave evidence that the discharge summary from the Auburn Hospital dated 31 January 2024 demonstrated that he had suffered another injury at the base of the PFC. The CT scans of the brain performed did not assist her in providing support for her opinion because a CT scan is not specific enough for that purpose, but an MRI scan might show evidence of earlier injuries.

43. In cross-examination, Ms Zipparo explained that neuropsychologists are diagnosticians and do not usually treat patients. They apply standardised and highly validated tests to obtain an assessment of a person’s cognitive function in comparison to the population of the same age as the subject. The tests administered on the offender include built-in features to assess the effort of the subject and Ms Zipparo also administered other tests for that purpose.

44. Ms Zipparo was referred to Professor Freeman’s report and it did not change her opinion. From his report, it appeared that Professor Freeman made an assessment of the offender’s apparent cognitive ability without administering any relevant test. Ms Zipparo believed that a person, such as the offender who is personable and can politely engage in conversation, can often come across as unimpaired.

45. Ms Zipparo stated that a person with normal brain function at age 10 would be expected to have normal brain function at age 50, in the absence of a significant event such as a traumatic brain injury or a disease process. Ms Zipparo did not find evidence of an earlier significant head injury, other than the event at age 12. She stated that, in her non-leading questioning of the offender, that while he had suffered other head injuries they were not accompanied by significant signs of traumatic brain injury, such as loss of consciousness, post-traumatic amnesia, time spent in hospital or significant rehabilitative treatment.

46. Ms Zipparo believed that the offender’s completion of a business degree at college in the United States did not affect her opinion, because she was told that he was provided with substantial support from a dedicated tutor as part of his sporting scholarship. She did not accept that the lack of medical records to support the injury at age 12 should adversely impact her opinion. She stated that the “gold standard” tests indicated a present cognitive impairment and that he performed well on the reliability measures.

47. Ms Zipparo accepted that the offender’s sexual offending over the years depicted a failure to learn because of a reduced capacity to inhibit impulsive urges.

48. Ms Zipparo was an excellent expert witness. She made appropriate concessions and exhibited a mastery of her medical discipline. For the most part, of the challenge to her evidence was ineffectual because it demonstrated a lack of understanding of her evidence.

49. I accept Ms Zipparo’s evidence of her assessment of the cognitive function of the offender at the time that she conducted the neuropsychological testing. I accept her opinion that whilst there could be multiple causes for his cognitive impairment, that they are longstanding and have probably been present since his teenage years. I am satisfied that there is a causal link between his impaired cognitive functioning and his sexual offending over many years for the reasons given by Ms Zipparo. I accept that he will face difficulty in engaging in the usual sex offender treatment in custody.

Report of Dr Richard Furst, psychiatrist

50. Dr Furst obtained a history from the offender, consistent with what I have already stated and I will not repeat those matters. The offender reported to Dr Furst that his sex drive has diminished over time and is much lower than it was 30 years ago.

50. In relation to the offences, the offender told Dr Furst that in relation to Count 1 the complainant withdrew her consent but he continued causing injury and bleeding for which she was hospitalised. He stated that he, “took full responsibility for what happened and that he should not have done it”. In relation to Count 2 he told Dr Furst that he had sexual intercourse with the complainant when she was sleeping without asking for her consent and that he took full responsibility for that too.

51. Dr Furst accepted Ms Zipparo’s report as demonstrating that the offender suffers from an impairment in frontal-executive brain function, with his cognitive abilities being equivalent to the lowest 7% of the population. He equated his intelligence to that of a 14-year old boy. He opined that the offender does not have any mental health impairment, such as an anxiety disorder, mood disorder or psychotic disorder.

52. Dr Furst was not sure if the offender’s exposure to violence as a child contributed to his offending behaviour.

53. Dr Furst opined that his frontal-executive impairment and generally low levels of cognitive function accounts for his failure to learn from previous sexual offending and to desist from further offending in 2009 (Count 1) and 2021 (Count 2).

54. Dr Furst assessed the offender as an above average risk of future sexual offending based on the application of the Static-99R risk assessment tool. He agreed with Ms Zipparo that the offender’s level of insight into his emotional, cognitive and offence related issues was low. He stated that the link between his childhood adversity and his offending was unclear and that the pattern of his offending over an extended period was troubling. The expected rate of recidivism for all sex offenders is between 15-20%, with no discernible difference between those who receive custody-based sex offender treatment and those who do not.

55. Dr Furst stated that there is population data that indicates a clear decrease in recidivism among sex offenders with age as their testosterone levels drop, and also when supervised in the community, such as in accordance with parole orders.

56. I prefer the evidence of Dr Furst to that of Mr Awit because of the reasoning underlying Dr Furst’s opinion. To be clear, I reject the opinion of Mr Awit.

Consideration

Objective seriousness

58. The aggravated sexual assault offence involved penetration of the offender’s fist into the complainant’s vagina. The force used was significant and the complainant made it clear through her words and actions that she was not consenting. The offender knew that she did not consent and she tried to get away. The offender exploited his height and weight advantage to forcefully do what he wanted to do. The injury sustained by the complainant was serious and life threatening. The complainant was hospitalised, requiring surgery and a blood transfusion. The physical injury was expected to heal well. It was an agreed fact that the injury impacted the complainant for a long time. The offender accepts by his plea that he was reckless to causing actual bodily harm and that he did inflict actual bodily harm. The injury caused was towards the upper end of the range of what could be classified to be actual bodily harm. The offender rendered assistance to the complainant and took her to hospital.

59. The sexual assault offence involved penile vaginal intercourse without a condom. The offender ejaculated inside the complainant. There was very little risk of pregnancy or sexually transmitted disease. The offender knew that the complainant was not consenting because she was asleep. The offender persisted with the sexual intercourse despite the complainant indicating through her words and actions that she did not consent. The offence endured over five or 10 minutes. The offender exploited his height and weight advantage.

60. The offender has frontal-executive dysfunction which impacts his decision-making capacity, makes him more impulsive and has adversely affected his ability to learn from his prior offending. I am satisfied that his low cognitive function reduces his moral culpability for the offences to some extent.

61. I have taken into account the maximum penalty for each offence.

Deterrence

62. General deterrence is of great importance in sentencing offenders for serious sexual offences.

63. There is also a need for specific deterrence. The offender has a record of prior convictions for similar offences and there is some need to impose a penalty that protects the community. His previous incarceration over the years has not deterred him from committing these types of offences. His cognitive impairment makes him less able to inhibit urges and less likely to desist from inappropriate behaviour. On the other hand, there have been gaps of about 10 years between his last sexual assault offence, the aggravated sexual assault offence and the sexual assault offence.

Aggravating factors

64. The offender has a record of previous convictions for serious sexual offences: s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. The offender has been imprisoned on three prior occasions for sexual assault offences and one occasion for stalking a woman by following her and trying to get her into his vehicle despite her refusals. The offender has also been assessed as an above average risk of reoffending. He presents with a complex cognitive impairment that is causally related to his offending and this is a case where weight needs to be given to the protection of the community.

65. The offences were committed in the home of the victim: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999. In the present case, this factor, while established, does not add much. On both occasions, the offender and the complainant were in a relationship.

66. The Crown contended that the aggravating factor provided for by s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 was established. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. For Count 1, the injury which caused significant blood loss was ultimately treated with sutures. The complainant did not attend for follow-up treatment. She reported some pain following the offence, but there is no medical opinion as to the prognosis for the injury other than at the time it occurred, it was expected to resolve without long term impacts. I also note that the complainant, on the facts, continued to be able to maintain a sexual relationship and bear a child. I accept that the complainant has suffered psychological and emotional distress as a result of the offence, but that is expected for offences of this kind. In all of the circumstances, I am not satisfied beyond reasonable doubt that the injury sustained in Count 1 was substantial.

Mitigating factors

67. The offender has expressed remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has expressed remorse to the neuropsychologist, the psychiatrist and to the Court. He has accepted responsibility for his actions. I am satisfied that his cognitive impairment limits his ability to have full insight into his actions. I accept that he is genuinely contrite.

68. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. By reference to his age, his dropping testosterone levels and that he will be required to undergo sexual offender treatment in custody and the fact that he will be supervised on parole, I am satisfied that the offender has good prospects of rehabilitation. He has also expressed a willingness to undergo mental health treatment which is likely to assist him in understanding his behaviour towards women.

69. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions may continue to be imposed for some time into the future. I am satisfied that those restrictions have made the offender’s time in custody more onerous. I am also satisfied that the offender’s cognitive impairment has made his time in custody more onerous. I note that the offender suffered a serious assault in custody on 30 January 2024.

70. The offender has been in custody since 26 April 2021 when he was arrested for an unrelated matter. He was later sentenced for that matter to a term of imprisonment of 15 months with a non-parole period of 11 months (reduced to 9 months on appeal) to date from 26 April 2021. There should be some partial accumulation of the sentence imposed for the current matters. I will back date the sentence imposed to 26 October 2021.

71. Overall, the offender’s cognitive impairment serves to explain his behaviour in the context of his previous convictions and incarceration but does not excuse it. The sentence imposed must provide some element of protection for the community.

Penalty

72. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

73. Kendal Nathaniel Pinder is convicted.

74. I have taken into account the Victim Impact Statement prepared by the complainant.

75. I make a finding of special circumstances. The offender has a cognitive impairment. He needs treatment that is more readily available in the community and this justifies a longer period on parole.

76. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are:

1. for the aggravated sexual assault offence – 7 years with a non-parole period of 4 years.

2. for the sexual assault offence – 4 years with a non-parole period of 2 years.

77. I impose an aggregate term of imprisonment of 8 years with a non-parole period of 5 years to date from 26 October 2021. The non-parole period will expire on 25 October 2026 and the head sentence will expire on 25 October 2029.

78. The offender will be eligible to be released on parole on 25 October 2026.

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Decision last updated: 22 March 2024