Kember v The Queen (No 3) - [2022] ACTCA 73

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Kember v The Queen (No 3)
Citation:	[2022] ACTCA 73
Hearing Dates:	19 and 21 December 2022
DecisionDate:	21 December 2022
Before:	Mossop J
Decision:	1. The application for a stay dated 11 December 2022, filed 19 December 2022 is dismissed. 2. The application for bail dated 11 December 2022, filed 19 December 2022 is dismissed.
Catchwords:	CRIMINAL LAW – APPEAL – Application for bail pending appeal – application for stay of sentence – custodial portion of sentence to expire prior to appeal hearing – evidence of circumstances of father and partner – fresh evidence relevant to appeal – special or exceptional circumstances demonstrated – prospects of success on appeal very low – application dismissed
Legislation Cited:	Criminal Code Act 1995 (Cth), s 474.26
Cases Cited:	Clarke-Jeffries v R [2019] NSWCCA 56 DPP v Hopkins [2022] VCC 947 Kember v The Queen [2022] ACTCA 51
Parties:	Rhys Kember ( Appellant) The Queen ( Respondent)
Representation:	Counsel Self-represented ( Appellant) A Washington ( 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

Mr Kember was sentenced on 27 June 2022 to imprisonment for three years subject to a recognizance release order after eight months. He will be entitled to release on 24 February 2023.

He filed a Notice of Appeal asserting that the sentence was manifestly excessive. He subsequently made an application for bail (which necessarily included an application for a stay) which I refused on 6 October 2022: Kember v The Queen [2022] ACTCA 51.

On 7 December 2022 he made an application to adduce fresh evidence and amend his Notice of Appeal so that it was an appeal against both sentence and conviction. I determined that it was appropriate to put these applications on a firm procedural foundation and have them determined by a Court of Appeal constituted by three judges at the time of the hearing of the appeal. Amongst the material provided to the court on that occasion were some printouts from Instagram and other social media sites that contained references to certain accounts being blocked. This was said to be relevant to the proposed conviction appeal, indicating that the victims of the offending could not have communicated with Mr Kember. That document, amongst others was marked for identification and then returned to Mr Kember.

By application filed Monday 19 December 2022, Mr Kember has again applied for a grant of bail. There was also an application for a stay of his sentence supported by an affidavit in the same terms as that relied upon for the application for bail. Although the applications were listed on the day that they were filed (Monday), because of some difficulties with sending documents from the Alexander Maconochie Centre…

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 Kember v The Queen (No 3)

Details

AGLC: Kember v The Queen (No 3) [2022] ACTCA 73
Case: [2022] ACTCA 73
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory considered applications for bail and a stay of sentence made by Rhys Kember, the appellant, who was self-represented. Mr Kember had been sentenced on 27 June 2022 to three years imprisonment, with a recognizance release order after eight months, making him eligible for release on 24 February 2023. He had filed a notice of appeal against his sentence, asserting it was manifestly excessive, and subsequently sought bail and a stay of his sentence.

The legal issues before the Court were whether to grant bail pending appeal and whether to grant a stay of sentence. These applications were made in light of Mr Kember's assertion of fresh evidence relevant to his appeal against both conviction and sentence, and the fact that the custodial portion of his sentence was likely to expire before the appeal hearing. The Court was required to assess the prospects of success on appeal and determine if special or exceptional circumstances warranted granting the applications.

The Court dismissed the applications, finding that while special or exceptional circumstances were established due to the impending expiry of the full-time detention period before the appeal hearing, the prospects of success on appeal appeared to be very low. The Court analysed the fresh evidence concerning social media communications and the circumstances of Mr Kember's father and partner, concluding that it did not provide a strong basis for arguing the sentence was manifestly excessive or that there had been a miscarriage of justice in accepting his guilty pleas. The Court found that the social media blocking documents did not cast doubt on the admitted facts for sentencing, and the arguments regarding the conviction appeal did not demonstrate a miscarriage of justice. The Court also noted that the circumstances of the father and partner, while difficult, were not outside the expected impact of incarceration and had been considered to some extent by the sentencing judge. Consequently, the Court ordered that both the application for a stay and the application for bail be dismissed.

Orders