Correction: Van Kempen v The King - [2023] VSCA 26

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0055

TREVOR VAN KEMPEN	Applicant
v
THE KING	Respondent

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JUDGES:	KENNEDY and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2023
DATE OF JUDGMENT:	23 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 26
JUDGMENT APPEALED FROM:	[2021] VCC 452 (Judge Lyon)

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CRIMINAL LAW – Application for leave to appeal against sentence – Offence of intentionally causing serious injury in circumstances of gross violence – Total effective sentence 8 years 10 months’ imprisonment – Non-parole period 5 years 10 months – Whether judge erred in finding applicant not suffering from impaired mental functioning at time of offending – Whether ‘special reason’ existed to justify non-parole period of less than 4 years under Sentencing Act 1991 s 10A – Whether judge erred in finding applicant’s moral culpability should not be reduced – Leave to appeal refused – R v Verdins (2007) 16 VR 269.

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Counsel
Applicant:		Mr T Marsh
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
TAYLOR JA:

On 1 March 2022, the applicant pleaded guilty in the County Court to one charge of intentionally causing serious injury in circumstances of gross violence, contrary to section 15A of the Crimes Act 1958.
On 31 March 2021, the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence
1	Intentionally cause serious injury – gross violence	20 years	8 years 10 months
Total Effective Sentence:		8 years 10 months
Non-Parole Period:		5 years 10 months
Pre-sentence Detention Declared:		653 days
Section 6AAA Statement:		11 years with 8 years non-parole

The applicant now seeks leave to appeal against sentence on the following two proposed grounds:
Ground 1: The learned sentencing judge erred in finding that the Applicant was not suffering impaired mental functioning at the time of the offending that would permit a conclusion that a ‘special reason’ existed pursuant to sections 10 and 11 of the Sentencing Act 1991, resulting in an excessive non-parole period.
Ground 2: The learned sentencing judge erred in finding that the Applicant’s moral culpability should not be particularly reduced by his ‘condition’, resulting in an excessive head sentence.
For the following reasons we consider that neither ground can succeed, with the result that leave to appeal will be refused.

Circumstances of the offending[1]

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

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.
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…

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 Correction: Van Kempen v The King

Details

AGLC: Correction: Van Kempen v The King [2023] VSCA 26
Case: [2023] VSCA 26
Decision Date: 23 February 2023

CaseChat Overview and Summary

Van Kempen brought an application for leave to appeal against his sentence for the offence of intentionally causing serious injury in circumstances of gross violence. The total effective sentence was 8 years and 10 months’ imprisonment, with a non-parole period of 5 years and 10 months. The application was heard by the Court of Appeal. The central legal issues were whether the judge erred in determining that the applicant did not suffer from impaired mental functioning at the time of the offence, whether there was a 'special reason' to justify a non-parole period of less than 4 years under the Sentencing Act 1991 section 10A, and whether the judge was correct in finding that the applicant's moral culpability should not be reduced.

The court examined the evidence and submissions related to the applicant's mental state at the time of the offence. It concluded that the judge was correct in finding that the applicant did not suffer from impaired mental functioning. The court also considered whether there was a'special reason' to justify a non-parole period of less than 4 years, as required by the Sentencing Act 1991 section 10A. The court held that the judge was entitled to find that there was no such special reason. Finally, the court reviewed the submissions regarding the applicant's moral culpability and determined that the judge was correct in finding that it should not be reduced.

The court ultimately refused the applicant's application for leave to appeal against his sentence. The reasoning followed the principles established in R v Verdins. The applicant's arguments did not demonstrate a real prospect of success or that the sentence was manifestly excessive or inadequate. The court found that the judge's findings and the sentence imposed were well within the bounds of the law and appropriate in the circumstances of the case.

Orders