Kember v The Queen (No 4)

Case [2025] ACTCA 9


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Kember v The Queen (No 4)

Citation: 

[2025] ACTCA 9

Hearing Date: 

22 August 2024

Decision Date: 

28 February 2025

Before:

Baker and McWilliam JJ, Ainslie-Wallace AJ

Decision: 

(1)    The appeal is dismissed.

Catchwords: 

APPEAL – CRIMINAL LAW – Application to withdraw plea of guilty after conviction – whether insufficient evidence to prove appellant’s guilt beyond reasonable doubt – plea of guilty encompasses acceptance of proof of each necessary element to a charge – sufficient evidence to support plea of guilty – whether denying leave would amount to miscarriage of justice – whether primary judge’s decision attended by error of fact or law – consideration of elements of each charge – error not established – no miscarriage of justice – application for leave to withdraw guilty pleas dismissed

APPEAL – CRIMINAL LAW – Appeal against sentence – child pornography offences – whether sentence was manifestly excessive – whether primary judge erred in failing to consider alternatives to custodial sentence – whether offender’s lack of prior convictions and the low objective seriousness of offending warranted reduced sentence – whether primary judge failed to consider extra curial punishment – where primary judge characterised offences as falling within mid to low range of objective seriousness – such a characterisation does not diminish the significant criminality of the offending – full-time custody warranted to reflect the seriousness of offending – no error in primary judge’s balance of factors favourable to appellant against the importance of deterrence and denunciation – appeal dismissed

Legislation Cited: 

Criminal Code Act1995 (Cth) ss 473.1, 474.19, 474.22, 474.22A, 474.26, 474.27, 474.27A
Crimes Act 1914 (Cth) s 16A

Cases Cited: 

Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Fares v DPP (No 2) [2025] ACTCA 2
Gifford v R [2016] NSWCCA 302
Higgins v The Queen [2022] ACTCA 26
Hili v The Queen; Jones v The Queen
[2010] HCA 45; 242 CLR 520
House v The King (1936) 55 CLR 499
Kember v The Queen (No 3)
[2022] ACTCA 73
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen
[2005] HCA 25; 228 CLR 357
Meissner v The Queen
(1995) 184 CLR 132
Melville v The King [2023] NSWCCA 284
R v Duffy [2014] ACTCA 53
R v Gajjar
[2008] VSCA 268
R v Gomez
[2007] ACTCA 21; 1 ACTLR 145
R v Kember
[2022] ACTSC 153
R v UG [2020] ACTCA 8
Sagiv v R (1986) 22 A Crim R 73
Scott v R [2020] NSWCCA 81
Veen v The Queen (No 2) (1988) 164 CLR 465
White v R [2022] NSWCCA 241; 110 NSWLR 163
Wong v The Queen [2001] HCA 64; 207 CLR 584

Parties: 

Rhys Karl Kember ( Appellant)

Commonwealth Director of Public Prosecutions ( Respondent)

Representation: 

Counsel

Self-represented ( Appellant)

K Breckweg with M Keks ( Respondent)

Solicitors

Self-represented…

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AGLC
Kember v The Queen (No 4) [2025] ACTCA 9
Case
[2025] ACTCA 9
Decision Date

CaseChat Overview and Summary

The applicants, Kember and others, sought leave to withdraw their pleas of guilty to criminal charges after conviction. The appeal was heard by Baker and McWilliam JJ and Ainslie-Wallace AJ in the Court of Appeal. The central dispute concerned whether the applicants should be permitted to retract their guilty pleas, which they argued were entered without sufficient evidence to prove their guilt beyond a reasonable doubt.

The Court of Appeal was required to determine whether the primary judge erred in denying leave to withdraw the pleas of guilty. This involved considering whether a plea of guilty necessarily encompasses an acceptance of the sufficiency of evidence for each element of the charge, and whether there was, in fact, sufficient evidence to support the original pleas. Furthermore, the Court had to assess whether denying the applicants leave to withdraw their pleas would result in a miscarriage of justice, and whether the primary judge's decision was attended by any error of fact or law.

The Court reasoned that a plea of guilty signifies an acceptance that there is sufficient evidence to prove each necessary element of the offence charged. Having considered the elements of each charge and the evidence available, the Court found that there was sufficient evidence to support the applicants' original pleas of guilty. Consequently, the Court concluded that no error of fact or law had been established in the primary judge's decision, and therefore, no miscarriage of justice had occurred.

Accordingly, the appeal was dismissed.

Orders

Orders of the court

(1) The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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