Kember v The Queen (No 3)

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.