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 (AMC) and because the Crown needed some time to consider the significance of the printouts from social media sites relating to blocked accounts, it was necessary to adjourn the proceedings until this morning (Wednesday).
The affidavit in support of the application for bail says in relation to the earlier application for bail:
1) As I was self represented I was not aware that I needed to show evidence for my appeal to obtain bail. 2) Judge ruled based on what was before him he was not able to determine prospects of success for the appeal.
The statement annexed to the application makes a number of points:
(a)If not granted bail he will have completed the full-time custody component of his sentence prior to the hearing of the appeal.
(b)He has “fresh evidence that my father’s Alzheimer’s has become worse since sentence and that he has lost his accommodation”.
(c)His partner is on a COVID visa and her mental health has suffered “due to the worsening situation in Russia with the war and the impact on her direct family”. Further his partner has since discovered in seeking to apply for a partner’s visa that “under my current convictions we would not be able to marry and be approved for the visa as it’s an instant refusal, at the same time I would not be able to travel to her country to live also due to the charges”. This is asserted to be extra-curial punishment.
(d)He said he has fresh evidence showing timestamps of social media communications “that prove I could not have communicated during the charged dates and that I had blocked victims account multiple times”.
The social media documents appear to relate to the victim of count 1. The first document is described as being a document from Snapchat showing that he had blocked the victims account in January 2015. It is said that there could have been no communications between January 2015 until the present. Another document is said to show that the victim had attempted to add him again but this was simply recorded as a “pending request”. A third document relates to the victim’s Instagram accounts, one part showing that an account was blocked on 26 May 2018. There was then a further account in 2019 which was blocked on 4 March 2020.
This information is said to have only become available after sentence. It is not clear why this is the case. In particular, it is not clear what the source of the documents now tendered is or why they were not available prior to the sentence hearing.
The statement refers to the possibility that there is a miscarriage of justice if the conviction is unreasonable or cannot be supported having regard to the evidence. It states that he has no previous record and “I have a reasonable argument to appeal sentence/conviction based on fresh evidence and very low range of my charges”.
The statement then appears to turn to matters relevant to the sentence appeal and includes: “I agree completely that morally I had done wrong and I had let down not only myself, my peers, my family and friends and of course most importantly the girls in which my actions have impacted. I take full responsibility for my actions and share deep remorse and regret …” He says that “According to law a girl aged 16 or over is legally able to engage in sexual activity therefore I did not believe a crime may had been committed from either party”.
He then refers to the circumstances in which he pleaded guilty. He describes him having pleaded guilty in order to obtain the lowest sentence possible and be back with his partner and father sooner.
At the hearing of the application Mr Kember significantly expanded the matters that he relied upon in support of the merits of his appeal against conviction.
In assessing the merits of the proposed appeal against conviction, it must be noted that he was legally represented at the time that he entered pleas of guilty and in doing so the number of charges against him were reduced. He made reference in his statement and submissions to the pressure that he was under at the time the pleas were entered. I do not accept his submission that he was unfit to plead at the time he did so. There was no medical or other evidence that would support that contention. So far as the information before me discloses, he made a competent decision, with the benefit of legal advice to plead guilty and accept the statement of facts as the alternative to going to trial before a jury on the charges originally laid.
Many of the submissions made in support of the merits of his conviction appeal pointed to aspects of the evidence which could give rise to a factual contention that might have been pursued at a hearing had he maintained his plea of not guilty. Many of these were matters which must have been known to Mr Kember at the time that he chose to plead guilty and accept the facts upon which he was sentenced. The existence of a possible factual contention known to an accused person that might, had there been a trial, have provided a basis for a submission to a jury, is not a circumstance which will indicate that there is a miscarriage of justice arising from the court accepting a plea of guilty. More is required.
Count 1 – Soliciting child pornography
The social media blocking documents, as I will call them, were said to have been unavailable at the time when the guilty plea was entered. There was no evidence as to why this was the case. They appear to have been documents generated from the offender’s social media accounts and hence, in the absence of some explanation to the contrary, are likely to have been available at the time he pleaded guilty.
In relation to the social media blocking documents said to indicate the impossibility of communication with the victim of count 1, it is not clear how this evidence relates to the admitted facts that were put forward as part of the “agreed facts on sentence”. The particular accounts referred to in the document are not identified in the affidavit or on their face as having been the same accounts as were used for the communications described in agreed facts.
The social media blocking documents from Instagram relate to two Instagram accounts: [redacted] apparently blocked 4 March 2020 and [redacted] apparently blocked 26 May 2018. The printout said to be from Snapchat lists under “Blocked Users” an account called “[redacted]”. This shows a “Creation Timestamp and a “Last Modified Timestamp” both being 2 January 2015.
The social media blocking documents relate to the victim identified in the agreed statement of facts as DF, the victim of count 1. The charge was soliciting child pornography from DF using a carriage service. The offending was alleged to have occurred between 7 June 2016 and 30 November 2017. Because of the dates of the offending, the blocking of account on Instagram in May 2018 and March 2020 would not cast any doubt upon the conviction because the offending is alleged to have occurred prior to that date, up until 30 November 2017. Further, DF had given evidence to police that she had a further Instagram account.
Mr Kember pointed to some portions of the police interview which suggested there was a period when DF did not have her phone. He suggested that this corresponded with the period when the offences were alleged to have occurred. On the other hand, the agreed statement of facts identified that the period during which DF did not have a phone marked the end of the period during which the offending occurred. The evidence was not so clear as to indicate that there was an inaccuracy in the agreed statement of facts as to dates. The submissions did not involve a challenge to the occurrence of the soliciting of the material but rather the dates on which that occurred.
So far as the existence of a “blocked user” on what was said to be a printout from Snapchat, if that is properly interpreted as involving a user blocked from 2 January 2015, that would also not cast any doubt upon the facts admitted for the purposes of sentencing because the earliest date referred to in the agreed facts was “late 2015 or early 2016”. That was said to be the date when the Mr Kember first met DF.
The document showing “Pending Requests” said to be from Snapchat appears to show an undated “pending request” from [redacted]. It is not clear what the pending request was. There is no timestamp on the request. There is no explanation as to how this account relates to any account used to make the communications the subject of the charge described in the statement of facts. It is notable that in addition to the description of the facts in relation to count 1, the agreed facts document also recorded that following his arrest on 8 May 2020 Mr Kember took part in a recorded interview with police in which he stated, inter alia, “He has swapped nude photos with DF”.
Overall, the social media blocking documents do not provide an arguable basis for a claim that there was a miscarriage of justice arising from the acceptance of the offender’s plea of guilty.
Count 3 – Procuring a person under 16
Mr Kember then made submissions about count 3. In relation to this charge, his submission was that there were portions of PC’s interview with police which he said indicated that the conversation was on DF’s phone and that he may have misunderstood the conversation was with DF. That would have been significant because as at the date of the offending, 9 December 2019, DF was over the age of 16 years. An offence under s 474.26 of the Criminal Code Act 1995 (Cth) is only committed if the recipient of the communication is under 16 years of age or is believed by the person sending the communication to be under 16 years of age. Mr Kember submitted that this element was not satisfied or alternatively that a mistake of fact as to the recipient’s age would render him not criminally responsible.
It is true that the portions of the transcript of the interview with PC did indicate that when messaging with Mr Kember she had not met him, had not told him her age and that he was simply communicating with somebody on an Instagram account. The agreed facts on sentence document does record two photographs as having been sent. Those photographs were not in evidence before me. Nor were the full text of the conversations or any other parts of the prosecution brief which may have been relied upon in order to establish knowledge of the age of PC had the matter gone to trial.
The existence of a possible available contention that would contradict an element required in order to establish the offence to which a plea of guilty was entered, is not of itself sufficient to indicate that there was a miscarriage carriage of justice arising from the acceptance of the plea.
Count 4 – Soliciting child abuse material
This charge related to a 15-year-old referred to as TP. The charge was soliciting child abuse material. Mr Kember sought to have TP, who was aged 15, send him photos in exchange for purchasing alcohol for her. He accessed her “private” Instagram account and obtained pictures that she had posted of her in her swimming costume. He then sent the photos to her saying “you post photos like this but you won’t even send photos to someone who has been in your life for ages”. Eight images identified as child abuse material were found on his phone. The theory of this charge appears to have been that he was seeking that she send him images equivalent to those that she had posted on her private Instagram account. If it is accepted that the images on the offender’s mobile phone were child abuse images and from the Instagram account, then he was soliciting child abuse material.
Mr Kember sought to contest whether the images were appropriately characterised as child abuse material. That would depend upon them depicting a person in a way that reasonable persons would regard as being, in all the circumstances, offensive. That would plainly be a jury question. By admitting the offence, the jury was not required to consider that issue. The photographs on his phone were not in evidence before me. In those circumstances, it cannot be said that the material by which the soliciting was to be judged was so clearly not child abuse material that there was a miscarriage of justice in accepting the plea of guilty.
Count 5 – transmitting indecent material
In relation to this offence, the indecency relates to the subject matter that was discussed. This involved the offender starting to ask MA about her sexual life saying “if you’re so mature, tell me what you have done” and asking for details about her sexual experiences such as whether she had had sex. When she indicated that she did not feel comfortable he said “then you must not be mature enough to talk about it, because I can talk about that with my other mates because I’m older”. He also asked her whether she sent “nudes” and she said she was “not like that”.
Mr Kember referred to some portions of transcripts of another witness which indicated how trusted he was within the cheerleading group of which he was a part and how people would talk to him. That witness said to police “he was just a really nice guy. Everyone always talked about how great Rhys was, how you could talk to him about anything, how he was a great support, like, even a counsellor to a degree.” To similar effect “[a]nd everyone told me to go to him. My mum told me to go to him. My coach told me to go to him. They said, “Rhys is such a great person. You can talk to him. I talked to him, he helps me with my mental health”. He sought to rely upon this evidence to suggest that he engaged in a mentoring or counselling role with male and female children. His submission was that not all discussions with a teenager about sexual matters would be indecent and that in the circumstances the material would not be indecent according to the standards of ordinary people. That obviously raises a jury question. He sought the opportunity to have a jury determine whether the communications were indecent.
As set out in the agreed facts on sentence, it was readily open to characterise his conduct in enquiring about MA’s sexual life as indecent. It was also manipulative having regard to his comments about her not being mature enough. Further the discussion of sending “nudes” was also, in the circumstances, readily able to be characterised as indecent.
The fact that Mr Kember may now wish to have the question of indecency determined by a jury does not indicate that there was any miscarriage of justice in him pleading guilty to the charge on the basis that he did.
The sentence appeal
Mr Kember relied upon the material from the National Disability Insurance Scheme (NDIS) about his father and the medical certificate relating to his partner indicating that she suffered from major depression. The material put before me for the purposes of the current application did not provide any detailed picture of the circumstances of Mr Kember’s father or his partner. They provided a narrow insight into some difficulties that they were facing but not enough to provide any secure foundation for conclusions about the significance of Mr Kember’s imprisonment to the current circumstances. The impact of his incarceration upon his father and partner were addressed in the previous bail application in Kember v The Queen [2022] ACTCA 51 at [14] and [17]. The circumstances of Mr Kember’s father were taken into account by the sentencing judge. The circumstances of the offender’s partner do not appear to have been raised before the sentencing judge but even in the light of the additional material put before me today are not outside the range of the kind of impact that would be expected when one member of a couple is detained in prison.
They do not provide any significant prospect for a court on appeal to regard the sentence imposed, and in particular, the portion of the sentence required to be served by full-time detention, as manifestly excessive.
Mr Kember also referred to some court decisions which he submitted were consistent with the sentence being manifestly excessive. He referred in particular to the decision in Clarke-Jeffries v R [2019] NSWCCA 56 and DPP v Hopkins [2022] VCC 947. Individual cases selected so as to be favourable to an appellant’s submissions are unlikely to provide a solid foundation for the contention that the judgment in this case was manifestly excessive even though the offending was more serious than in the present case.
Finally, Mr Kember made a submission that alternatives to imprisonment had not been considered. That was inconsistent with the manner in which the proceedings were run before the primary judge. Before the primary judge it was recorded at [88] as having been accepted that a custodial sentence with a period of full-time imprisonment was appropriate: “it seems both parties would contend for some period of full-time imprisonment, but I do not understand the Crown to suggest that it should be a lengthy period”.
For the avoidance of doubt, I also mentioned that the offender’s submissions made reference to the decision in Bugmy. That appears to have been based on a misconception on Mr Kember’s part as to the proposition for which Bugmy stands.
Conclusion
The position remains the same as it was when I addressed the matter on 6 October 2022. Special or exceptional circumstances are established by reason of the likely expiry of the period of full-time detention prior to the hearing of the appeal. However, it remains the case that on the material before me that the prospects of the appeal appear to be very low and, notwithstanding that the appellant will have served the period of full-time detention required to be served prior to the operation of the recognizance release order, that is an insufficient basis for the granting of a stay of the Chief Justice’s orders or the making of any consequential order granting bail.
Orders
The orders of the Court are:
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.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 20 February 2023 |
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