Circumstances of the offending****[1]

1. The victim and accused in this matter were strangers to each other. At the time of the assault, the victim - Matthew Kelly - was 45 years old. He had been diagnosed with Fragile X Syndrome, intellectual disability and Tourette's Syndrome.
2. At approximately 4:00 pm on 16 June 2020 the victim was driven, as was his routine, to the Hopkins Milk Bar by his disability support worker. Approximately 15 minutes later, he was seen by a local taxi driver near the Hopkins Bridge. A second male, the applicant, was observed to be walking three to four metres behind the victim.
3. Shortly thereafter, witness Roger Rognrust observed the applicant resting up against a concrete pylon at the western end of the bridge. Seeing the victim nearby, Mr Rognrust assumed the two men were talking, before the victim quickly walked away from the applicant.
4. Mr Rognrust then observed the applicant run towards the victim and punch him once to the back of the head. The victim fell to the ground. Mr Rognrust observed the applicant kick the victim multiple times. The applicant then punched the victim directly to his face. The victim was, by this stage, immobile. Mr Rognrust observed the applicant punch the victim multiple times to the head, using both fists, while the victim lay still on the ground.
5. As Mr Rognrust drove back towards the scene of the assault, he observed the applicant jumping on the victim's head multiple times, describing each jump as higher than the last. The victim was lying supine, his arms by his side.
6. As Mr Rognrust approached the scene he tooted his horn and the applicant ceased the assault and walked away. Mr Rognrust observed the victim's tongue hanging out, and he appeared to have blood coming from his ears and mouth and bruising around his eyes.
7. Off duty police officer Harry Thurtell saw the victim lying on the footpath. On approaching, he spoke to Mr Rognrust, who provided a description of the applicant. He located the applicant nearby in Simpson Street. The applicant initially denied the assault, but once Mr Thurtell identified himself as a police officer, the applicant became compliant and remorseful. The applicant said 'I'm sorry, I'm sorry I did this' and 'this has been building for days. It's because of my trauma, I did this because of my trauma'.
8. The victim, Mr Kelly, was treated at the scene and in hospital. The applicant's assault caused serious injuries, including a fractured temporal bone, facial fractures, a subarachnoid haemorrhage, bruising around both eyes, bleeding in the external auditory canal and bruising and abrasions to the left eyebrow, nasal bridge, chin, right shoulder, left elbow and right aspect of the neck.
9. Mr Kelly's injuries were life threatening. He was treated at the Royal Melbourne Hospital for six weeks, suffering several complications. He required further rehabilitation following discharge. Long term consequences of the assault included:

(a) traumatic brain injury; > > (b) slurred speech; > > (c) loss of dexterity in the right upper limb; > > (d) reduced balance and slower walking; > > (e) multiple fears; > > (f) subdued mood and loss of interest in previously enjoyable activities; > > (g) reduced memory, attention and concentration; and > > (h) reduced sensory processing, including proprioception.

10. Mr Kelly will require ongoing treatment, therapy and rehabilitation.

1. The offence of intentionally causing serious injury in circumstances of gross violence is a category 1 offence which, by the operation of s 5(2G) of the Sentencing Act 1991, requires a sentence of a term of imprisonment other than in combination with a Community Correction Order.
2. Pursuant to s 10(1) of the Sentencing Act, a person convicted of the offence of intentionally causing serious injury in circumstances of gross violence must receive a non-parole period of not less than four years unless the court finds that a 'special reason' exists. Section 10A(2) of the Sentencing Act sets out the matters which may constitute 'special reasons'. The applicant submitted that he satisfied s 10A(2)(c)(i) which provides that a special reason exists if an offender can prove, on the balance of probabilities, that, at the time of the commission of the offence:
   • he or she had 'impaired mental functioning';
   • the impairment is causally linked to the commission of the offence; and
   • the impairment substantially and materially reduces the offender's culpability.
3. Subsection (a) of the definition of 'impaired mental functioning' under s 10A(1) of the Sentencing Act specifies a mental illness within the meaning of the Mental Health Act 2014. Section 4(1) of the Mental Health Act relevantly defines a mental illness as a 'medical condition that is characterised by a significant disturbance of thought, mood, perception or memory'.
4. As well as satisfying the 'special reason' test in s 10A(2)(c)(i), the applicant also submitted that limbs one to five of the principles in R v Verdins[2] were engaged. In particular, the applicant relied on limb one of Verdins[3] and submitted that there ought to be a substantial reduction in the applicant's moral culpability. The applicant supported these submissions by reference to the report of Dr Nina Zimmerman, a forensic psychiatrist, dated 22 January 2022.

1. Dr Zimmerman provided an opinion based on her interview with the applicant and her analysis of his medical records, including notes of the applicant's prior psychiatric admissions in Victoria and Western Australia and his psychiatric treatment within the Victorian prison system.
2. She found that the applicant's lack of stable and nurturing family and presence of violence around him as a child will have contributed to him learning to respond to provocations in an angry and dysregulated manner.[4] There was no evidence of major mood or psychotic disorder, but she found that the applicant was suffering from a borderline personality disorder.[5] She opined that the applicant had unstable moods characterised by intense dysphoria and anger, and impulsivity, including suicidal and self-harming acts since adolescence, all of which are diagnostic features of borderline personality disorder.[6]
3. Dr Zimmerman recorded the applicant's account of the offending as follows:

Mr Van Kempen said that he had been looking down at his feet when the incident occurred. He heard someone yelling, so he reacted in fear. He said that he hit the victim, who made a strange noise and fell down. Mr Van Kempen said that he jumped on him and kicked on [sic] him. He said that he had no recollection of following the victim but said that he did moved [sic] forward as he punched him, because he was moving backwards.

Mr Van Kempen told me that it is very important to understand the state of fear he was in at the time of the offending and the complete lack of a secure environment he existed in, so as to be able to understand why the offending occurred.[7]

1. She considered that the one stable aspect to the applicant's self-identity was as a person who has been repeatedly wronged in a world in which he has never felt safe. Despite these themes of persecution, there was no delusional quality to his account.[8]
2. She further stated:

Mr Van Kempen stated that it was in the context of feeling others were likely to attack him that he reacted aggressively when he perceived a threat in the environment in the form of a larger male. He described feeling fearful and attempting to 'knock out' the victim. He could tell me that he punched and kicked the victim repeatedly.

Mr Van Kempen's lack of a stable and nurturing family environment and the presence of violence around him as a child was linked to him developing a borderline personality disorder and contributed to him learning to respond to perceived provocations in an angry and dysregulated manner. These factors left him struggling to control his frustration at the time of the offending.

Witness statements, the record of interview and assessment by the forensic officer all support the fact that Mr Van Kempen was in a state of great agitation and disorder at the time of the offending. While I believe that Mr Van Kempen was in a distressed and frustrated state of mind at the time of the alleged offending, there do not appear to have been any transient psychotic phenomena that were present or linked to the attack. He was aware that his behaviour had harmed the victim and rang 000 afterwards.[9]

1. In relation to whether there was some relevant connection between the offending and the applicant's condition, Dr Zimmerman concluded:

In this context, Mr Van Kempen's tendency to over-react to perceived provocations with sudden, intense and dysregulated anger that is associated with his borderline personality disorder is likely to have been heightened on the day of the offending. I believe that the association between his condition and his offending lies primarily in his dysregulated expression of anger and his heightened perception of threat in his environment. As noted, central features of borderline personality include impulsivity, intense albeit fleeting feelings of anger and dysregulated emotional state most marked when the individual is in crisis. These characteristics were in evidence of [sic] the time of Mr Van Kempen's offending. As a result of his dysregulated emotional state, Mr Van Kempen will have had an impaired ability to think clearly and to make calm, rational decisions.[10]

1. Dr Zimmerman also said the following about the impact of imprisonment on the applicant:

While sentencing appropriately remains a matter for the Court, I note that Mr Van Kempen's diagnosis of borderline personality disorder means that imprisonment is likely to be more onerous than for an individual without this diagnosis. Impulsivity, transient paranoia and intense anger, suicidality and unstable moods can all lead to conflict in a prison environment. Symptoms of borderline personality disorder - particularly fleeting psychotic phenomena - are known to increase at times of stress and the challenging environment of custody places Mr Van Kempen at risk of such a deterioration. However, it is pleasing to note that, after many months of fluctuating mental state, there appears to have been stabilisation to the extent that he is now managing in mainstream. Mr Van Kempen described feeling better than when he first came in. He will remain susceptible to deterioration at times of increased stress such as around court and sentencing times.[11]

1. The judge described the impact statements which had been provided by Mr Kelly's three siblings as 'profound'. The judge considered that the few things that were formerly available to Mr Kelly in his very limited life are now largely lost to him.[12]
2. The judge recorded that the offence of causing serious injury intentionally in circumstances of gross violence is viewed by the court as being 'extraordinarily serious'.[13] The judge also noted that the seriousness of the offence is marked by the maximum period of 20 years' imprisonment that may be imposed.[14]
3. The judge considered the factors outlined in the case of Nash v The Queen[15] which are relevant in assessing the objective gravity of this offence, including the applicant's proven intent; the seriousness of the injury actually caused (encompassing the immediate and long-term consequences for the victim); the victim's vulnerability; and the duration of the attack.[16] The judge noted that the first two factors (intent and seriousness of the injury) particularly inform the seriousness of the offending.[17] The judge found that the applicant's assault was not attended by aggravating factors such as the use of a weapon or the assault taking place in company.[18] However, the offence charged was one of causing serious injury intentionally in circumstances of gross violence, those circumstances being that the applicant continued with the assault whilst the victim was incapacitated.[19]
4. In relation to the applicant's submission that he did not intend to cause 'really serious injury', the judge said:

I am satisfied that you formed an intent to assault Mr Kelly only moments before you punched him for the first time. You told the forensic psychiatrist, Dr Zimmerman, that you had felt fearful that day and that you reacted aggressively to what you perceived to be a threat from a larger male. You described feeling fearful and attempting to 'knock out' the victim.

Frankly, I give your account to Dr Zimmerman very little credence. The evidence of the witness is that after a brief exchange, the victim quickly walked away from you. You then ran towards the victim and punched him to the back of the head. You then circled around and punched him again, this time, to the face.

I conclude that you formed an initial intent to cause serious injury. As you described to Dr Zimmerman, you intended to 'knock out' the victim.[20]

1. The judge went on to describe that, whilst the victim was on the ground and offering no resistance, the applicant kicked and punched him multiple times before also jumping on his head multiple times. Further, that he only stopped after the witness sounded the horn of his car. In those circumstances the judge was satisfied that, at least by the time he jumped on the victim's head multiple times, the applicant had formed an intent to cause 'really serious injury' to Mr Kelly.[21]
2. The judge then turned to the applicant's personal circumstances.
3. At the time of sentencing the applicant was 37 years of age. His parents divorced when he was less than one year old and he has a half-sister with whom he is not in contact.[22] The applicant's mother smoked cannabis when he was a child. The applicant's mother had a number of partners after his parents separated, before entering into a long-term relationship with a man named Shane when the applicant was eight years old. Shane was physically and verbally abusive towards the applicant. Two of the applicant's mother's partners had sexually abused the applicant. At the age of seven, the applicant was also sexually abused by a teenage neighbour.[23]
4. After grade 5, the applicant moved in with his father in Warrnambool. The applicant attended five different primary schools and struggled to integrate socially and academically. The applicant attended secondary school in Perth until the middle of year 10, then attended school up until year 11 in Warrnambool. The applicant was bullied and self-harmed. He attempted suicide on one occasion and was admitted to hospital.[24]
5. The applicant's father has re-partnered and has three other children. The applicant has little to do with them and has not had any long-term intimate relationships, nor does he have any children. The applicant is socially isolated apart from a meaningful relationship with his uncle and his friend, Mark,[25] and has not worked since 2017.[26]
6. The applicant has a very limited prior criminal history, with no history of violent offending.[27]
7. The judge next turned to whether there was a 'special reason' such that the applicant could receive a non-parole period of less than four years. The judge concluded:

In the end, I am not satisfied that a special reason exists. In my view, the traits of the borderline personality disorder you exhibited on the day of your offending do not amount to a significant disturbance of thought or perception. Whilst you appear to have been disinhibited, paranoid and making poor judgements, it is apparent that you were entirely cognizant and oriented as to time and place, and as to the wrongfulness of your actions.

Moreover, you were able to display some remorse and to significantly apportion blame for your actions on your trauma. In those circumstances, I am not prepared to find that you suffered impaired mental functioning which would enable me to conclude that a special reason exists thereby justifying a non-parole period of less than four years for your offending.[28]

1. The judge accepted that the applicant's early plea should mitigate his sentence, particularly given it was entered during the COVID-19 pandemic.[29] The judge also considered that the applicant's time in custody had been affected by the COVID-19 lockdowns, and took this into account as a mitigating factor.[30] He found that the applicant expressed 'some remorse' for his offending.[31]
2. The judge also considered whether the applicant's moral culpability should be reduced and concluded:

....I am not satisfied that your moral culpability should be particularly reduced by your condition. I will not discount your mental health issues altogether, but I consider that you must be held morally responsible for this sustained, vicious attack, which finished only when the witness driving by sounded his car horn. Principles of general deterrence, denunciation and a measure of protection of the community, must figure in the sentencing consideration. I agree that specific deterrence does not have as much work to do given your lack of relevant prior convictions.[32]

1. The judge considered that the applicant's prospects for rehabilitation were tied to accepting medical and psychological help for his condition. Insofar as Dr Zimmerman considered that his borderline personality disorder meant that prison was likely to be more onerous, the judge noted that his condition appeared to have stabilised whilst in mainstream custody. In his view, there should only be 'a very slight moderation' of the sentence to take account of Verdins principles. However, he considered that the applicant's prospects of rehabilitation would be enhanced by the opportunity for a reasonable period of parole, which would provide the applicant with the structure and supervision required to assist reintegration back into the community.[33]

1. The applicant submitted that the judge's finding that there was no relevant 'impaired mental functioning' was contrary to the available evidence and not reasonably open. In making this submission the applicant highlighted the following evidence:

(a) witness observations that the applicant was 'erratic and agitated' at the scene; > > (b) witness observations that the applicant was repeatedly apologising and referring to his 'mental health' and 'trauma'; > > (c) at interview - which lasted for six minutes before being terminated - the applicant was irritable, swearing, referring to childhood sexual abuse and mental illness. Dr Zimmerman, on watching the interview, observed that the applicant's 'thought form was disjointed and he appeared unable to provide any sort of coherent account of himself'; > > (d) the applicant was assessed by a Forensic Medical Officer 21 hours after he was taken into custody and deemed unfit for interview; and > > (e) the applicant was remanded in the Aire acute psychiatric unit at Ravenhall Correctional Centre in mid-July 2020 before being certified on 30 July 2020 for transfer to the Thomas Embling Psychiatric Hospital.

2. In oral submissions, counsel contended that the judge misdirected himself about the statutory test, given that he only cited 'thought or perception' and failed to consider the other aspects of the definition of mental illness under the Mental Health Act. The judge also wrongly considered the mental abilities which the applicant did possess (for example, his cognisance as to the time and place), which distracted him from properly considering the matters which did affect the applicant's mental health (that he was disinhibited, paranoid and making poor judgments).

1. The suggestion that the judge applied the incorrect statutory test cannot be sustained.
2. The shorthand reference to 'thought or perception' does not establish error given that the judge had already set out, and was clearly aware of, the terms of the statutory test.[34] In any event, the focus of Dr Zimmerman's conclusion at para 151 of her report was on a heightened 'perception of threat' which resulted in an impaired ability to 'think clearly and to make calm, rational decisions'. The judge was thereby correct to focus on whether there was a significant disturbance of 'thought or perception'.
3. There was also no error in recording that the applicant was entirely cognisant and oriented as to time and place; aware of the wrongfulness of his actions; able to display remorse; and able to significantly apportion blame. To the contrary, the examination of whether there is a 'significant' disturbance would clearly be expected to involve some weighing exercise. In the consideration of such a sliding scale, it was both relevant and appropriate for the judge to consider the ways that the applicant was disturbed, as well as the ways that he was not.
4. We also consider that the judge's finding (that the applicant was not suffering mental impairment) was well open. Thus there was clearly evidence for the finding that the applicant was entirely cognisant and oriented;[35] aware of the wrongfulness of his actions;[36] displayed remorse; and that he was able to apportion blame.[37] The applicant also did not suggest that these individual findings were not open. Rather, he submitted that, in the light of various other evidence (as outlined above at para 40), the finding could not reasonab[38] be made.38
5. Some of the evidence identified by the applicant did not support any impairment of his mental functioning at all. Thus, we agree with the judge that the fact that the applicant was apologising and citing his 'trauma' weighed against any 'disturbance' and evidenced a sound perception. In any event, the short answer to the applicant's submission is that the evidence cited generally concerned matters which post-dated the relevant offending (for example, what happened at interview). Given the savagery of the attack, it is not surprising that the applicant might be, for example, 'agitated at the scene' and later unfit for interview. It is instead important to identify the applicant's state immediately prior to the offending, and divorced from any emotional state consequent upon that offending. The matters raised by the applicant should therefore be given limited, if any, weight, and certainly do not establish that the finding made was not reasonably open.
6. We would add that, although the decision in Brown v The Queen[39] makes it clear that borderline personality disorder diagnoses are not excluded from the operation of Verdins, the existence of such a diagnosis will not necessarily demonstrate impaired mental functioning in every case. As the Court stated:

Looking ahead, it would seem from the expert evidence that a personality disorder is likely to engage the Verdins principles only in a case of some severity...

Whether in a particular case involving such a disorder the expert evidence establishes a clinically significant impairment of mental functioning will, of course, depend on the circumstances of the case and the nature and content of the expert opinion.[40]

1. It is also important in this context that Dr Zimmerman gave no opinion at all as to the actual severity of the applicant's borderline personality disorder.
2. Overall then, we are not satisfied that the judge made any error in finding that the applicant was not suffering from a mental illness within the meaning of the Mental Health Act at the time of the offending. The judge's finding was not only reasonably open, but correct.

1. The applicant referred to the judge's Reasons at para 72, and submitted that this paragraph may be read in two ways, both of which gave rise to error. First, it may be read such that the judge did not accept there was any mental condition, which meant the judge failed to have regard to the principle in Brown that an offender diagnosed with a personality disorder should be treated as in no different position from any other offender who seeks to rely on an impairment of mental functioning as mitigating sentence.[41] In the alternative, one could also read para 72 to mean that the judge did accept that the applicant had impaired mental functioning at the time of the offending but that in his assessment, moral culpability was not 'particularly reduced'. If this interpretation is correct, the applicant submitted that it amounts to an internal inconsistency in the sentence, where the same disorder was accepted as impaired mental functioning for one purpose, and not for another.
2. The applicant submitted that, irrespective of the interpretation of para 72, proper consideration of the applicant's moral culpability for the offending required a careful analysis of the nature and extent of the impact of the diagnosis of borderline personality disorder at the time of the offending and its connection or causal relationship to the offending. Only then would it be possible for the judge to evaluate the extent to which moral culpability is reduced.
3. In oral submissions, counsel emphasised that there was no proper analysis of the relevant causal link at para 72, such that the Court should infer that it was not undertaken at all. He also submitted that, even if some of the conclusions of Dr Zimmerman fell away absent a 'threat', there was evidence that the applicant was disinhibited, paranoid, making poor judgments, and also suicidal. The judge should therefore have considered there was a relevant connection to the offending for the purposes of Verdins.

1. If the judge did not accept that there was a relevant impairment, this would not assist the applicant. Such a finding would be open for reasons already given and the principles in Verdins would not be engaged. However, we consider that a natural reading of para 72 is that the judge was prepared to accept (in the applicant's favour) that he did have some mental 'condition' (by reason of the borderline personality disorder diagnosis) for the purposes of applying Verdins. We see no error in this approach. The circumstances under which an offender's moral culpability may be reduced under s 10A(2)(c)(i) are also different, and appear to set a higher threshold, than is applicable under Verdins.[42]
2. Turning then to the question of moral culpability, it is true (as the applicant submitted) that a proper consideration of moral culpability within the first limb of Verdins focuses on whether the impairment contributed to the offending in such a way as to render the offender less blameworthy for the offending than would otherwise be the case. This connection is generally treated as an issue of causation.[43] It is also true that para 72 does not contain an explicit analysis of whether there was a connection between the impairment and the offending.
3. However, the Reasons must be read as a whole, bearing in mind that the key conclusion of Dr Zimmerman was that the 'association' between the offending and condition lay in the applicant's dysregulated anger where there was a 'heighted perception of threat'.[44] This was consistent with the language in other parts of her report that the applicant was fearful when he offended, and reacted aggressively when he perceived a threat.[45]
4. Returning, then, to the Reasons, the judge expressly rejected the applicant's account (given to Dr Zimmerman[46]) that he felt fearful and reacted to what he perceived to be a 'threat' from a larger male at the time of the offending.[47] Such a finding was not challenged and was clearly open given the victim was walking away at the time the offending commenced. There was certainly no threat by the time the victim was being jumped on while he was defenceless on the ground.
5. However, given that the existence of a perception of a threat was a critical part of Dr Zimmerman's conclusion, her key conclusion about connectivity could no longer stand and there was no evidentiary foundation for any relevant connection between the offending and the applicant's condition.
6. The judge was thereby entitled to find that the applicant's moral culpability should not be 'reduced' and that the applicant must be held 'morally responsible'. The use of the word 'particularly' is somewhat inelegant, but it is clearly intended to convey the absence of any material or realistic connection between the offending and the condition. This was not to say that the judge discounted the applicant's mental health issues 'altogether'. In particular, he accepted some 'slight moderation' of the sentence to take account of Verdins principles.[48]
7. The judge's approach was both open and appropriate. There is certainly no error, with the result that ground 2 is also unsustainable.

1. Both parties also addressed the issue of whether this Court would impose a less severe sentence even if an error was established.[49]
2. If there was an error as specified by ground 1, we doubt there would be any reasonable prospect of imposing a different non-parole period if the head sentence remained untouched. In relation to ground 2, it may be theoretically possible that the head sentence could be affected if the judge should have found that the applicant's moral culpability should be materially reduced because of his condition. However, for reasons given already, there is simply no evidentiary foundation for a connection between the applicant's condition and the offending. In those circumstances, it is both unnecessary and undesirable for us to consider hypotheticals. Rather, given that neither proposed grounds 1 or 2 are sustainable, leave to appeal will be refused.

[1] As summarised in the Applicant's Written Case, filed on 28 April 2022. The respondent took no issue with this summary.

[2] (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[3] Limb one provides that an offender's impaired mental functioning is relevant to sentencing in that '[t]he condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective'. Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.

[4] Psychiatric Report of Dr Nina Zimmerman dated 22 January 2022, [133] ('Psychiatric Report').

[12] DPP v Van Kempen [2021] VCC 452, [20] ('Reasons').

[15] [2013] VSCA 172; (2013) 40 VR 134, 137 [10] (Maxwell P); [2013] VSCA 172.

[38] The applicant accepted that the relevant test was whether the finding was 'reasonably open', consistent with Carroll v The Queen [2011] VSCA 150, [17]-[18] (Maxwell P, Buchanan JA agreeing at [70]) (citations omitted).

[39] (2020) 62 VR 491; [2020] VSCA 212 ('Brown').

[40] Ibid 509 [68]-[69] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).

[41] Ibid 493 [6] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).

[42] At the very least, the inclusion of the phrase 'substantially and materially' in the definition under s (2H)(c) of the Sentencing Act has been found to set a higher threshold than Verdins: see Peers v The Queen [2021] VSCA 264; (2021) 97 MVR 379, 389-90 [52] (Niall and Sifris JJA); [2021] VSCA 264.

[43] Langton (a pseudonym) v The Queen [2022] VSCA 79, [33] (Maxwell P, McLeish and Macaulay JJA) and cases cited therein.

[45] For example, he stated that he 'reacted aggressively when he perceived a threat' (at [145] of the Psychiatric Report); he said he 'reacted in fear' and was in a 'state of fear' when he offended (at [86]-[87] of the Psychiatric Report).

[49] Criminal Procedure Act 2009, s 280(1)(a).