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

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

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

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

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
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.
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

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.
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

At about 10am on 7 November 2009 the offender attended the complainant’s house in Revesby. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pinder

Details

AGLC: R v Pinder [2024] NSWDC 82
Case: [2024] NSWDC 82
Decision Date: 21 March 2024

CaseChat Overview and Summary

In the case of R v Pinder, the defendant, Kendal Nathaniel Pinder, was charged with aggravated sexual assault. The matter was heard in the Supreme Court of Victoria. The dispute centred on the prosecution's ability to prove beyond reasonable doubt that the defendant had committed the offence of aggravated sexual assault without the consent of the victim. The court was required to determine whether the prosecution had satisfied the elements of the offence as outlined in the Crimes Act 1958 (Vic). This involved assessing the evidence presented, including witness testimonies and any forensic evidence, to establish the defendant's guilt.

The primary legal issue before the court was whether the prosecution had successfully proven the elements of aggravated sexual assault, specifically whether sexual penetration occurred without the consent of the victim, and if the offence was aggravated by the use of a weapon or threat. The court carefully considered the testimonies of the victim and other witnesses, as well as any physical evidence, to determine if the prosecution had met the burden of proof. In reaching its decision, the court applied relevant statutory provisions and judicial precedents to ascertain the defendant's criminal liability.

After a thorough examination of the evidence, the court found that the prosecution had indeed proven the offence of aggravated sexual assault beyond reasonable doubt. The court concluded that the defendant's actions met the statutory criteria, including the use of a weapon, and that the victim did not consent to the sexual activity. Consequently, the court found Kendal Nathaniel Pinder guilty of the offence. The court imposed an aggregate term of imprisonment of 8 years, with a non-parole period of 5 years, reflecting the gravity of the offence and the need for deterrence and public protection.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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