AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Local Court 20 August 2021

Police v Pinder

[2021] NSWLC 9

Sexual offencesPublic order & justice offences
CRIME VIOLENT OFFENCES STALKING OR INTIMIDATION HIGH OBJECTIVE SERIOUSNESS NEED FOR SPECIFIC DETERRENCE NEED FOR GENERAL DETERRENCE

Citation: Police v Pinder [2021] NSWLC 9
Court: Local Court of NSW
Date: 20 August 2021
Judge(s): P Stewart LCM

Background

The offender pleaded guilty to a single count of stalking under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The conduct occurred on 22 April 2021 in Rockdale and involved the random targeting of a female stranger the offender had no prior relationship with.

The sequence of events began at Rockdale railway station, where the offender appeared to be waiting and then walked very close to the victim while gazing at her. The conduct escalated: the offender followed her in a silver Mercedes, repeatedly attempted to engage her from the driver's window, then parked and approached her on foot, persistently trying to coerce her into his car while staring intently and using aggressive hand gestures.

The victim feared being assaulted and kidnapped. The offender, aged 65, had a significant criminal history including multiple convictions for sexual assault in Western Australia in 1992 and 1993, and further sexual assault offences in New South Wales in 1996.

Legal Issues

  • Whether the sentencing discount for a late guilty plea should be reduced below the standard range
  • Whether the offence crossed the section 5 threshold requiring a sentence of imprisonment
  • Whether full-time custody, rather than a community-based order, was the appropriate sentencing outcome
  • Whether any special circumstances existed to justify a departure from the standard non-parole period ratio

Decision

Guilty plea discount: The court allowed a discount of only 5% on sentence, applying the principles from R v Borkowski [2009] NSWCCA 102. The guilty plea was entered on the day of hearing, and the prosecution case was assessed as strong (at [3]).

Objective seriousness: The court characterised the offending as a random stalking of a complete stranger. The conduct included sustained physical surveillance on foot, persistent unwanted conversation from a vehicle in disregard of traffic light phases, and a face-to-face attempt to coerce the victim into the offender's car accompanied by aggressive hand gestures. The court placed the objective seriousness at the lower part of the mid-range (at [38]-[39]).

Threshold for imprisonment: The court was satisfied the offence crossed the section 5 threshold, such that only imprisonment was appropriate (at [42]-[43]). The submission that a Community Corrections Order would suffice was firmly rejected (at [32]). The court also declined to consider an Intensive Corrections Order, finding that community protection required full-time custody given the offender's risk of reoffending (at [46]).

Rehabilitation and special circumstances: The court found that the offender's criminal history, combined with an absence of any mitigating material, meant his prospects of rehabilitation were not good and that a finding he was unlikely to reoffend could not be made (at [44]-[45]). No special circumstances were identified, and no departure from the standard non-parole period ratio was made (at [47]).

Orders Made

  • The offender was sentenced to 15 months imprisonment, commencing 24 April 2021 and concluding 23 July 2022
  • Non-parole period of 11 months, from 24 April 2021 to 23 March 2022

Key Takeaways

  • A late guilty plea entered on the day of hearing, in the face of a strong prosecution case, attracted only a 5% discount on sentence, consistent with the principles in R v Borkowski (at [3]).
  • Random stalking of a stranger involving sustained surveillance, persistent coercive conduct, and aggressive behaviour was placed at the lower part of the mid-range of objective seriousness for the offence (at [39]).
  • Under section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing court determined that the combination of the nature of the offending, the offender's serious sexual assault history, and poor rehabilitation prospects crossed the threshold requiring full-time imprisonment (at [42]-[43]).
  • Where an offender's history and conduct give rise to a strong need for community protection, neither a Community Corrections Order nor an Intensive Corrections Order will be appropriate alternatives to full-time custody (at [32], [46]).
  • General deterrence, specific deterrence, and community protection were identified as particularly weighty sentencing considerations where a stalking offender has an antecedent history of serious sexual assault offending (at [41]).

Legislation and Cases Referenced

Legislation
- 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
- Greaves v R [2020] NSWCCA 140
- Karout v R [2019] NSWCCA 273
- R v Borkowski [2009] NSWCCA 102