Krysta v Kemppainen - [2023] ACTMC 39

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 5^th 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the pleas to these charges were delayed while negotiations occurred in relation to other charges which were ultimately withdrawn or discontinued by the prosecution.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Krysta v Kemppainen

Details

AGLC: Krysta v Kemppainen [2023] ACTMC 39
Case: [2023] ACTMC 39
Decision Date: 25 October 2023

CaseChat Overview and Summary

The case of Krysta v Kemppainen involved an appeal against sentence by the defendant, Kemppainen, who was convicted of multiple offences including assault occasioning actual bodily harm, damaging property, and using a carriage service to menace. The appeal was heard in the County Court of Victoria. The primary legal issues the court had to address were whether the sentence imposed was appropriate in light of the nature and circumstances of the offences and whether there was any error in the assessment of the relevant factors by the sentencing judge.

The court considered the severity and frequency of the offences, the defendant's background, and the impact of the crimes on the victim. It was noted that the offences were part of a pattern of family violence, which significantly affected the victim. The court found that while the original sentence was not manifestly excessive, it could be regarded as unduly lenient given the seriousness of the offences and the need for deterrence and denunciation. The appeal was allowed, and a more severe sentence was imposed, consisting of a term of imprisonment of nine months and eighteen days, suspended after five months, with a bond for two years to be of good behaviour and supervised for fifteen months.

Orders

Orders of the court

Imprisonment – 9 months, 18 days – suspended after 5 months, bond for 2 years to be of good behaviour and supervised for 15 months

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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