Local Court New South Wales Medium Neutral Citation: Police v Pinder [2021] NSWLC 9 Hearing dates: 17 August 2021 Date of orders: 20 August 2021 Decision date: 20 August 2021 Jurisdiction: Criminal Before: P Stewart LCM Decision: Imprisonment 15 months NPP 11 months Catchwords: CRIME — Violent Offences —Stalking or intimidation — criminal history of serious sexual offences — high objective seriousness — need for specific deterrence — need for general deterrence — need for protection of the community Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 66 Law Enforcement Powers and Responsibilities Act 2002 (NSW) Cases Cited: Greaves v R [2020] NSWCCA 140 Karout v R [2019] NSWCCA 273 R v Borkowski [2009] NSWCCA 102 Category: Sentence Parties: NSW Police (Prosecution) Kindal Pinder (Defendant) Representation: Solicitors: Sergeant Tunks (Prosecutor) Mr D Fernandez – Legal Aid Commission (Defendant) File Number(s): 2021/00116105 Publication restriction: Nil JUDGMENT REMARKS ON SENTENCE The Charges and the Pleas 1. The offender Kindal Pinder pleaded guilty to a single count of Stalking contrary to section 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW). 2. A plea of not guilty was entered to that and another charge on 27 April 2021. On the day of hearing, a guilty plea was entered to the Stalking charge and the remaining matter withdrawn. No amendment was made to the facts relied upon by police. 3. I allow a discount of 5% in accordance with the principles enunciated in R v Borkowski [2009] NSWCCA 102 at [32], noting that it appears to be a strong prosecution case. Maximum Penalties 1. The maximum penalty for Stalking is 5 years imprisonment. 2. In Greaves v R [2020] NSWCCA 140 at [66], Cavanagh J with Hoeben CJ at CL and Hamill J agreeing, said: "…the sentencing principles applicable to the process of sentencing remain the same in the Local and District Courts… The magistrate was required to assess the appropriate sentence having regard to the prescribed maximum penalty for each offence rather than any jurisdictional limit. The jurisdictional limit only becomes relevant if the assessment leads to a sentence greater than the limit." 1. The principle in Greaves is clear. The Local Court in sentencing an offender is no different to the way in which the District Court should sentence an offender, subject to the jurisdictional limit if the sentence that should be imposed for an individual offence exceeds that limit. Agreed Facts 1. About 4:50 pm on 22 April 2021 the victim, who is known to police, got off a train at Rockdale railway station. As she exited the ticket gate she saw the offender who appeared to be waiting for someone. She left on foot towards Geeves Avenue in the direction of Bay Street. As she walked past him, she noticed that he will very close, within a metre to her and in the same direction. 2. The victim described the offender as being "extremely tall like a basketball player, broad shoulders, shaved head, African appearance, green jumper, black cast on one of his feet and middle-aged". The offender is in fact of 65 years old. 3. Some of the actions of the offender and interactions with the victim are recorded on CCTV footage. 4. The victim noticed that the offender was gazing at her the entire time as he walked alongside her on her right. As she walked down the stairs from the railway overpass, she saw the defendant on her left. She then walked on to Tramway Arcade towards the Princes Highway, and as she crossed the road, she saw the offender looking at her as they both crossed the road. 5. About 5 pm, whilst the victim was walking in an easterly direction on Bay Street, she reached the intersection of George Street, waiting for the light to change so that she could cross at the intersection. She saw the offender again, wearing the same clothing but this time seated in the driver seat of a silver Mercedes registration number [xxxxxx]. The vehicle is registered to the offender. The driver's window was down. 6. The victim saw the defendant in the driver seat. He began to speak with the victim from about 10 to 15 metres away. He said: "Where you going?". The victim said: "Home." 7. The offender said: "Do you want to lift?" The victim said: "No." 8. The offender continued to ask several questions repetitively such as, "What are you doing?", "Where are you going?", and "I'll give you a lift". 9. The victim ignored the offender as she felt uncomfortable and did not want to continue to engage with him. 10. During the conversation, the offender had ample opportunity to turn left and drive onto Bay Street, Rockdale from George Street, but did not and instead continued a conversation with the victim. His vehicle remained stationary during the green light phase and throughout the red light phase until the traffic lights again change to green. This is captured on close circuit television. 11. When the traffic lights change for the second time and the defendant progressed through the lights turning left into Bay Street, the vehicle seem to be traveling very slowly around the corner. The victim said that as she was crossing at the intersection she saw the defendant park his vehicle. That location is not covered by CCTV. 12. As the victim crossed the George Street whilst still on Bay Street, she saw the defendant exit his vehicle and walk towards her. He was standing on the nature strip. 13. He had a conversation with the victim and said: "Get into my car you can take the number plates the people at the chemist know me." The victim replied: "I'm right thanks." 14. The defendant continued to say: "Get into my car, get into my car". She said that the defendant stood very still and stared intently at her as he ushered her with hand gestures to get into his car. 15. At this point in time, the victim froze as she felt threatened. Whilst this was occurring, he continued to attempt to coerce her into the car, saying repetitively, "Get into the car, get into the car". Eventually, the victim said, "I'm walking away now". 16. The victim said that at this time the defendant began to wave his hands around in a way which she described as "aggressively" and "in frustration" until she left the scene. She then contacted the local police station alerting police to the incident. 17. The victim walked quickly down Bay Street and an unknown woman asked her if she was okay. She did not see the offender again. During the incident, the victim felt fearful of the defendant due to his behaviour and size and was in fear of being assaulted and kidnapped. 18. At 5:15 pm on 26 April 2021, the defendant attended Kogarah police station where he was arrested and cautioned. Several items were seized from the defendant including a mobile phone and a document titled: "What is Stalking". The defendant was wearing a black moon boot on his right foot covering his ankle and calf muscle. 19. In response to a form of demand as per section 14 of the Law Enforcement Powers and Responsibilities Act 2002 (NSW), the defendant indicated that he is the owner and was the driver of the motor vehicle at 5 pm on 22 April 2021. Criminal Record 1. In May 1992, the offender was sentenced to 18 months imprisonment for sexual assault in the Perth Court of Criminal Appeal. 2. In June 1992, the offender was sentenced to 3 years 6 months imprisonment on multiple counts of sexual assault in the Perth Supreme Court. 3. In April 1993, the offender was sentenced to 2 and a half years imprisonment in the Perth Supreme Court on multiple counts of aggravated sexual assault. 4. In 1996 the offender was sentenced at Campbelltown District Court (NSW) to one year 6 months imprisonment as a fixed term for sexual assault without consent and a term of 5 years for sexual intercourse with a person aged between 10 and 16 years. 5. The offender's criminal record affords him little if any leniency. Plea in Mitigation 1. The offender was born in the Bahamas in 1956 and is now 65 years old. He moved from there to the United States of America before moving to Sydney in 1985. He was a professional basketball player for part of his life and is the father of 8 children, 6 of whom are above the age of 18 with one aged 9 and one aged 11. 2. It is conceded that it is a "serious and concerning" stalking matter. Notwithstanding that concession, it was initially submitted that the offence could be dealt with by way of a Community Corrections Order. That submission must be firmly rejected. 3. The offender accepts that he made the victim feel uncomfortable and that his repeated advances towards the victim were rejected. 4. It is submitted that the offender is remorseful for his actions. 5. The offender has been in custody since 26 April 2021 and is currently refused bail on other matters. General Remarks 1. The concession that this is a serious and concerning stalking matter is entirely appropriate. This is a random stalking of a woman, a complete stranger. 2. Women have a right of free passage without fear of being stalked by a man, without fear of unwanted advances, or attempts made to coerce the woman into doing something that she does not want to do. 3. The current offence involves the offender apparently waiting for someone at a railway station. Whether he was actually waiting for a particular person is simply not known. However, the offender and victim had not previously met, yet he chose to walk very close to her and in the same direction, gazing at the woman, walking on one side of her, and then on the other. He was also looking at the victim as they both crossed the road. Shortly after that he was in his car, with the window down talking to the woman, as he ignored the phasing of the traffic lights, and asked repetitive questions about what the woman was doing, where she was going, and telling her he would give her a lift. He then parked the car and approached the woman persistently trying to encourage her to get into his car, standing very still and staring intently, using hand gestures that were later described as being aggressive. 4. I find the objective seriousness to be at the lower part of the mid-range. Sections 3A and 5 Crimes (Sentencing Procedure Act) 1999 (NSW) 1. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community. 1. A number of the stated purposes of punishment are particularly relevant to this sentencing exercise. There is a need for general deterrence to deter others who might be inclined to conduct themselves in this way towards others, as well as the related need for the protection of the community. There is a strong need for specific deterrence, given the offender's history of sexual assault offending. The harm to the victim is expressed to some extent in the facts. 2. Section 5 of the Crimes (Sentencing Procedure) Act provides that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. 3. I am satisfied that this offence crosses the section 5 threshold and that only a period of imprisonment is appropriate. Likelihood of Reoffending and Prospects of Rehabilitation 1. The offender's criminal history is of concern. No information has been placed before this Court that alleviates my concerns and assessment that the offender's prospects of rehabilitation are not good. 2. I cannot find that the offender is unlikely to reoffend. Consideration of Intensive Correction Order 1. No submission was made that an ICO would be an appropriate alternative to full-time custody. Nor could such a sentencing outcome be appropriate when the offender's conduct gives rise to the obvious conclusion that there is a strong need to protect the community; that the community would not be protected by this offender being placed on an ICO; that a period of full time custody is more likely to deal with the offender's risk of re-offending. See also paragraph [94] of Karout v R [2019] NSWCCA 273. Special Circumstances 1. I am unable to identify any special circumstances. ORDERS 1. The offender Kindal Pinder is sentenced to a term of imprisonment of 15 months from 24 April 2021 to 23 July 2022. The non-parole period is rounded down to 11 months, from 24 April 2021 to 23 March 2022. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2022