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DPP v Kemp

DPP v Kemp

Case [2015] VSCA 108 19 May 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0009
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JONATHAN KEMP	Respondent

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JUDGES:	WHELAN, SANTAMARIA and BEACH JJA
WHERE HELD:	WANGARATTA
DATE OF HEARING:	18 May 2015
DATE OF JUDGMENT:	19 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 108
JUDGMENT APPEALED FROM:	[2014] VSC 631 (Lasry J)

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CRIME – Sentence – Manifest inadequacy – Intentionally causing serious injury – Offender stabbed unarmed victim 27 times in victim’s own home – Offending unexplained – Offender suffers post-traumatic stress disorder, major depressive disorder and an acquired brain injury – Not insignificant risk of re-offending – Offender sentenced to 2 years’ imprisonment with 15 month non-parole period and 18 month community correction order – Sentence low having regard to the nature of offence and the seriousness of this offending – R v Verdins (2007) 16 VR 269 applicable but mental abnormalities had countervailing effect due to offender’s treatment resistance and risk of re-offending – Offender re-sentenced to 6 years’ imprisonment with 3 years and 6 months non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Respondent	Mr P F Tehan QC with Mr C F Morgan	Kerry Clancy Solicitors

WHELAN JA

SANTAMARIA JA
BEACH JA:

Introduction

On 6 August 2014, the respondent pleaded guilty to one charge of intentionally causing serious injury contrary to s 16 of the Crimes Act 1958. After a plea hearing on 8 September and 7 November 2014, he was sentenced on 12 December 2014 to a term of imprisonment of two years with a non-parole period of 15 months. Additionally, the sentencing judge imposed a community correction order (‘CCO’) for a further 18 months.

The CCO was imposed with the standard conditions set out in s 45(1) of the Sentencing Act 1991 together with conditions that: the respondent abstain from consuming alcohol; abstain from consuming any drug other than in accordance with the type and amount of drugs prescribed for him by a medical practitioner; undergo a mental health evaluation and receive treatment accordingly; undergo assessment and treatment for drug abuse and dependency accordingly; undergo assessment and treatment for alcohol abuse and dependency accordingly; continue with treatment then being offered by Austin Health; and be supervised, monitored and managed as directed by the Secretary of the Department of Justice.

The Director of Public Prosecutions has appealed against the respondent’s sentence on the grounds that the sentence imposed was manifestly inadequate. The appellant contends that in fixing the respondent’s sentence, the judge:

(a)failed to have sufficient regard to the nature and gravity of the offence, and in particular, failed to fix a sentence commensurate with the characterisation of the offending as ‘very serious’;
(b)failed to have sufficient regard to the maximum penalty prescribed for the offence;
(c)failed to have regard to current sentencing practices for the offence of causing serious injury intentionally contrary to s 16 of the Crimes Act 1958;

(d)failed…

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 DPP v Kemp

Details

AGLC: DPP v Kemp [2015] VSCA 108
Case: [2015] VSCA 108
Decision Date: 19 May 2015

CaseChat Overview and Summary

The case of DPP v Kemp involved the Director of Public Prosecutions appealing the sentence imposed on the defendant, Kemp, who was convicted of intentionally causing serious injury. The matter was heard in the Court of Appeal, which was required to determine whether the original sentence was manifestly inadequate and to re-sentence the offender if necessary.

The central legal issue before the Court was whether the sentence imposed by the trial judge was manifestly inadequate in light of the nature and seriousness of Kemp's offence. The Court needed to consider the circumstances of the offence, including the number of stab wounds inflicted on the unarmed victim in their own home, the lack of explanation from Kemp, and the risk of re-offending. Additionally, the Court had to weigh the impact of Kemp's mental health conditions and their treatment resistance against the severity of the crime.

In delivering the judgment, the Court held that the original sentence was indeed manifestly inadequate. The Court considered the gravity of the offence, which involved Kemp stabbing the victim 27 times, and the lack of any mitigating factors. Despite Kemp's mental health conditions, the Court found that these did not sufficiently mitigate the seriousness of the offence due to his treatment resistance and the risk of re-offending. The Court therefore re-sentenced Kemp to a term of six years' imprisonment with a non-parole period of three years and six months.

The Court's final orders were that the appeal be allowed, the original sentence set aside, and Kemp re-sentenced to six years' imprisonment with a non-parole period of three years and six months.

Orders