Kember v The Queen

[2022] ACTCA 51

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kember v The Queen

Citation:

[2022] ACTCA 51

Hearing Date:

6 October 2022

DecisionDate:

6 October 2022

Before:

Mossop J

Decision:

The application for bail is dismissed.

Catchwords:

CRIMINAL LAW – APPEAL – Application for bail pending appeal – custodial portion of sentence to expire prior to appeal hearing – special or exceptional circumstances demonstrated – very low prospects of success on appeal – application dismissed

Legislation Cited:

Bail Act 1992 (ACT), ss 9E, 22

Criminal Code 1995 (Cth), ss 474.19(1), 474.22(1), 474.22A(1), 474.26(1), 474.27A(1)

Cases Cited:

Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290

The Queen v Quzag [2015] ACTCA 36; 298 FLR 330

Parties:

Rhys Kember ( Appellant)

The Queen ( Respondent)

Representation:

Counsel

Self-represented ( Appellant)

C Pascoe ( Respondent)

Solicitors

Self-represented ( Appellant)

Commonwealth Director of Public Prosecutions ( Respondent)

File Number:

ACTCA 38 of 2022

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  McCallum CJ

Date of Decision:          27 June 2022

Case Title:  R v Kember

Citation: [2022] ACTSC 153

MOSSOP J:

Introduction

1. On 27 June 20222, Rhys Kember was sentenced by the Chief Justice in relation to six offences. Those offences may be described as child pornography offences. They involved contraventions of ss 474.19(1), 474.22(1), 474.22A(1), 474.26(1) and 474.27A(1) of the Criminal Code 1995 (Cth). The maximum penalty for each of those offences except one was 15 years’ imprisonment. The exception was count five (using a carriage service to transmit indecent material to a person under the age of 16 years), for which the maximum penalty was seven years' imprisonment.

1. The sentences imposed on the offender were 16 months, 10 months, eight months, six months, three months and six months’ imprisonment, but those sentences were imposed with a degree of concurrency that led to the total term of imprisonment being three years. The offender was required to serve eight months' imprisonment prior to being released on a recognisance release order. That period ran from 25 June 2022 and will expire on 24 February 2023.

1. The offender has lodged an appeal against the sentence imposed. The Notice of Appeal identifies a single ground of appeal which is that the sentence imposed was manifestly excessive. He has now brought an application for bail in the appeal proceedings. For reasons which I will explain in a moment, that application for bail must be treated as an application for a stay of the orders of the Chief Justice in addition to a grant of bail.

1. The grounds upon which the applicant seeks bail are summarised in his application as follows:

(1) My appeal has reasonable prospects of success.

(2) The fruits of my appeal will be lost if not granted bail.

(3) Exceptional hardship to my family.

1. For the reasons given in Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290, there is power to grant bail to a person appealing from a sentence imposed by a judge of the Supreme Court…