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 |
Cases Cited: | Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24 |
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 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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