Krysta v Kemppainen
[2023] ACTMC 39
•25 October 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Krysta v Kemppainen |
Citation: | [2023] ACTMC 39 |
Hearing Date: | 25 October 2023 |
Decision Date: | 25 October 2023 |
Before: | Special Magistrate Richter |
Decision: | Imprisonment – 9 months, 18 days – suspended after 5 months, bond for 2 years to be of good behaviour and supervised for 15 months |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – family violence – damage property – use carriage service to menace |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24(1), 160, 374-5 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 34B Criminal Code Act 1995 (Cth) s 474.17(1) Family Violence Act 2016 (ACT) preamble Family Violence Legislation Amendment Act 2022 (ACT) |
Cases Cited: | R v Bell [2005] ACTSC 123 R v Dunn [2004] NSWCCA 346 R v Lyons (No 1) [2020] ACTSC 358 R v Pearson [2020] ACTSC 375 |
Parties: | G Krysta ( Informant) M Kemppainen ( Defendant) |
Representation: | Counsel J Melloy ( Informant) T Sharman ( Defendant) |
| Solicitors ACT Director of Public Prosecutions Tim Sharman Solicitors ( Defendant) | |
File Number: | CC 2023/4568 CC 2023/4569 CC 2023/4570 CC 2023/4572 |
SPECIAL MAGISTRATE RICHTER:
Introduction
1․Matti Kemppainen, you are before the court, having pled guilty to the following charges:
(a)CC 2023/4568: Use carriage service to menace – Criminal Code Act 1995 (Cth) s 474.17(1)
Maximum penalty 5 years imprisonment
(b)CC 2023/4569: Assault occasioning actual bodily harm – Crimes Act 1900 (ACT) s 24(1)
Maximum penalty 5 years imprisonment
(c)CC 2023/4570: Assault occasioning actual bodily harm – Crimes Act 1900 (ACT) s 24(1)
Maximum penalty 7 years imprisonment
(d)CC 2023/4571: Damage property – Crimes Act 1900 (ACT) s 160
Maximum penalty 60 penalty units ($9,600) and/or 3 years imprisonment.
2․The jurisdictional maximum penalty in this Court is $15,000 and/or 5 years imprisonment by operation of the Crimes Act 1900 (ACT) s 375.
3․You entered your pleas of guilty on your 5th appearance for CC2023/4568, and on the 6th occasion in relation to the remainder of the charges. I accept that the pleas to these charges were delayed while negotiations occurred in relation to other charges which were ultimately withdrawn or discontinued by the prosecution.
4․Your pleas in this case still provide the court and the community with a benefit. Your pleas were entered without the matters being listed for a hearing, and as such, I consider that a discount of 20% on any sentence I give is appropriate.
Circumstances of offence
5․Each of the charges arise from your relationship with your domestic partner (who I will refer to as Susan Smith), and she is the victim in each charge. You were in an intimate relationship for 2 years. The two of you lived together along with your children from previous relationships. You and Susan did not have children together.
6․On 5 May 2022, you were made aware of an incident involving one of Susan’s children with one of your children.
7․That afternoon, you and Susan argued. You then left. She called a friend over to be with her. Soon after that you returned. You were obviously upset and angry. You began to remove your clothing from a chest of drawers which was next to the bed in the bedroom where Susan and her friend were sitting. You were doing that in a demonstrative and angry way.
8․You took one of the drawers and threw it behind you. It hit Susan in the side of her forehead. You immediately left the premises.
9․When Susan eventually spoke with the police, she told them that this caused pain. She or her friend took a photograph of the mark it left on her head (Photograph 5 May 2022) which she provided to police.
10․By 14 September 2022, it appears that you had resumed living with Susan. On that evening, the two of you were sitting on a couch. You had an argument. You stood over her and you began to strike or punch her in the face and body. You then pushed her into an internal wall in the house, and this caused a hole the size of a tennis ball in the gyprock and a hole the size of a basketball in the door.
11․She or her friend took photographs of the injuries which you inflicted on her in that assault. As a result of you assaulting her, she had a black right eye. She provided those photographs to the police when they eventually spoke with her.
12․On 6 May 2023, your relationship with Susan was clearly over. You attended at the house with a friend and your mother. You argued with Ms Smith and the police attended. It was after that attendance that the police obtained the details from Susan of the two assaults and the property damage that you have been charged with.
13․Also disclosed to police by Susan was a text message from you:
Run away coward I’ll see ya soon still got my key you’ll never know when it will be and once this test comes back positive your gonna be seeing a lot of me Susan. Your about to find how psycho I really am game on.
14․In light of your previous assaults on her, that message is a particularly evil and manipulative communication. This is an example of the pernicious and evil nature of family violence: R v Bell [2005] ACTSC 123 at [30]
15․Your offending is, overall, a serious example of family violence.
Subjective factors
16․You are 33 years of age.
17․Your prior history indicates to me that you have a significant issue with controlling violent behaviour.
18․On 16 June 2020, you were sentenced in the Supreme Court for an offence of recklessly inflict grievous bodily harm.
19․That sentence was to an intensive corrections order (ICO) for a period of 3 years. All of the offences for which you have pleaded guilty breach that ICO and as such, I am required to commit you to the Supreme Court in relation to breaching that sentence order.
20․I am told that you were born in the Canberra region and were brought up by your mother who was a single parent. You left school at the end of year 10 and completed a year 12 equivalent apprentice program. You are a qualified crane operator and you had been employed in the industry since 2016 until you were placed into custody on these offences. You have an offer of work from a crane company on your release from custody.
21․You appear to have some insight into your effect on Ms Smith. You labelled yourself as being a bully and descried your actions as idiotic.
Effect on the victim
22․Ms Smith’s victim impact statement was read to the court by a friend of hers.
23․That statement was compelling and tragic. It should show you how your behaviour has affected a woman you once professed to love.
24․The portion of that statement that should resonate with you in any future relationship you have is this:
You were the person who promised to protect me from pain and harm, but you put me in the most pain, physically and emotionally than anything I have ever endured in my life.
Sentencing considerations
25․In considering the appropriate sentence in this case I must turn my mind to the purpose of sentencing and the relevant considerations described in the Crimes (Sentencing) Act 2005 (ACT) and in particular ss 7 and 33.
26․Section 7 emphasises punishment, the protection of the community, rehabilitation, denouncement of the conduct, recognising the harm done to the victim and making the offender accountable for their actions.
27․On the other hand, s 33 sets out a series of matters which I must consider, including the nature and circumstances of the offence, injury resulting from the offence, the effect of the offence on the victim, and a series of considerations which are personal to you.
28․In addition to the general considerations for sentencing, family violence offences are subject to their own specific set of considerations.
CRIMES (SENTENCING) ACT 2005 - SECT 34B
Sentencing—family violence offences
(1)In deciding how an offender should be sentenced for a family violence offence, a court must consider the nature of family violence and the context of the offending, including the following:
(a)the matters mentioned in the preamble to the Family Violence Act 2016;
(b)whether the offending occurred at the home of the victim, offender or another person;
(c)whether the offending occurred when a child was present;
(d)if the offence is a serious family violence offence—whether the offender has 1 or more other convictions for serious family violence offences.
29․Section 34B emphasises the significance of the matters that the courts usually consider in any event. The reference to the preamble to the Family Violence Act 2016 (ACT) emphasises the significance with which the legislature treats family violence.
30․In this case, the offending is aggravated because it occurred in the home of the victim (which was also the home of the defendant). There is no evidence before me to indicate whether any of the children were home at the time, however, I expect that Ms Smith’s children will have seen her black eye and the damaged home.
31․This charge of aggravated assault occasioning actual bodily harm is a ‘serious family offence’ as it carries a maximum period of imprisonment of 7 years. Whilst you have a previous history of violence, I am advised that it is not family violence.
32․Particularly relevant in this matter is this observation about family violence offences by Adams J in R v Dunn[2004] NSWCCA 346; 144 A Crim R 180 (Ipp JA and Sully J agreeing) at 195:
Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat.
These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted.
To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind.
Section 10 of the Crimes (Sentencing) Act 2005 (ACT)
33․I have no difficulty in concluding that the threshold for s 10 has been crossed and that no penalty other than imprisonment is appropriate.
Time
34․You have been on remand for these offences for a period of 5 months and 16 days.
Sentence
CC2023/4569: Assault occasioning actual bodily harm.
35․This offence is not aggravated by the provisions of the Family Violence Legislation Amendment Act 2022 (ACT) because it occurred before those provisions came into force.
36․I accept that your conduct in committing that offence was reckless. It is a less serious example of that offence.
37․But for your plea in this matter, I would have sentenced you to 28 days.
38․I sentence you to 22 days imprisonment, commencing on 9 May 2023.
CC2023/4570: Assault occasioning actual bodily harm – Aggravated
39․This offence is an aggravated offence and as such, carries a maximum period of imprisonment of 7 years. The prosecution exercised its election pursuant to s 374 of the Crimes Act 1900 (ACT) to have the charge disposed of summarily.
40․The prosecution election cannot be taken to infer that the matter is not a serious one. The election does not alter the maximum penalty but merely sets a jurisdictional limit; therefore, the nature of the offence as an indictable offence is also not altered.
41․This offending was deliberate. It went beyond a single punch and your conduct was reprehensible. Your victim suffered injury to her face. You struck her in her face and body. Assaulting the head is a serious example of an assault, as the head is a very vulnerable part of the body: R v Pearson [2020] ACTSC 375.
42․Whilst the blows were directed to the victim’s face, the evidence before me is confined to the black eye that Ms Smith suffered. In R v Lyons (No 1) [2020] ACTSC 358 at [40]-[44], the Supreme Court considered sentencing practice and found that most sentences were of between 7 and 18 months, with a midpoint of 15 months.
43․But for your guilty plea, I would have sentenced you to 12 months imprisonment.
44․I sentence you to 9 months and 18 days imprisonment – 31 May 2023 to 17 March 2024.
45․That order is to be suspended after you have served 6 months, on the condition that you sign an undertaking to be of good behaviour for 2 years with supervision for a period of 15 months or such lesser period as deemed appropriate by the Director-General of Corrective Services or their delegate.
CC2023/4571: Damage property
46․This offending is linked with the assault occasioning actual bodily harm for which I have already sentenced you. There were no photographs produced of the damage nor was there a compensation schedule before the court. The nature of the damage was explained in the facts and the damage went beyond being trivial or minor.
47․But for your guilty plea, I would have sentenced you to 28 days imprisonment.
48․I reduce that sentence to 21 days imprisonment, concurrent with CC2023/4570 – 31 May 2023 to 20 June 2023.
CC2023/4568: Use carriage service to menace
49․This offending is a particularly cowardly act, in intimidating your former partner who you have already assaulted. The offending is particularly disgraceful.
50․But for your guilty plea, I would have sentenced you to 3 months imprisonment.
51․I reduce that sentence to 2 months and 13 days imprisonment, partially concurrent with CC 2023/4570 – 18 February 2024 to 30 April 2024.
52․I order that you enter into a recognizance release order which suspends the sentence with security in the amount of $100 to be of good behaviour for a period for 2 years.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Richter. Associate: Jonathan Pears Date: 26 October 2023 |
0
4
5