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R v Kekalainen

R v Kekalainen

Case [2014] ACTSC 132 29 April 2014

Culpable Driving Causing Death

Sentencing

Imprisonment

Periodic Detention

Good Behaviour Obligations

Driving Disqualification

Criminal Law

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THE QUEEN v MARK KALEVI KEKALAINEN
[2014] ACTSC 132 (29 April 2014)

CRIMINAL LAW – Judgment and Punishment – Sentencing – Culpable driving causing death

CRIMINAL LAW – Judgment and Punishment – Sentencing – imprisonment – effect of increase of maximum penalty – severity of penalty not increasing linearly

TRAFFIC LAW – Offences – evidence – impairment from alcohol consumption

Crimes Act 1900 (ACT), s 29(2)
Crimes (Sentence Administration) Act 2005 (ACT)
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 35
Road Transport (Alcohol and Drugs) Act 1999 (ACT), s 15AA

Azzopardi v The Queen (2011) 35 VR 43
Barbaro v The Queen (2014) 305 ALR 323
Clinch v The Queen (1994) 72 A Crim R 301
Kennewell v Rand [2006] ACTCA 10
Lawrence v The Queen (2007) 1 ACTLR 158
Lu v The Queen (2008) 190 A Crim R 109
Murnin v R (Unreported, New South Wales Court of Criminal Appeal, 16 August 1985)
R v Creighton (Unreported, Australian Capital Territory Supreme Court, Refshauge J, 28 October 2010)
R v Creighton [2011] ACTCA 13
R v Donaldson [1968] 1 NSWR 642
R v Hopkins (2008) 22 NTLR 125
R v Jurisic (1998) 45 NSWLR 209
R v Kurzynski [2001] ACTSC 90
R v Kutshera (2008) 51 MVR 485
R v MacIntyre (1988) 38 A Crim R 135
R v Madden (Unreported, Australian Capital Territory Supreme Court, Higgins CJ, 13 June 2008)
R v MAK (2006) 167 A Crim R 159
R v Moffatt (Unreported, Australian Capital Territory Supreme Court, Penfold J, 12 June 2008)
R v Monfries (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 18 June 2013)
R v Nachouki (Unreported, Australian Capital Territory Supreme Court, Burns J, 17 September 2013)
R v Palmer (Unreported, ACT Supreme Court, Fox J, 14 June 1974)
R v Paton (Unreported, Australian Capital Territory Supreme Court, Penfold J, 2 December 2013)
R vSlattery (1996) 90 A Crim R 519
R v Thach (2010) 203 A Crim R 510
Steff v The Queen (1997) 96 A Crim R 1 at 5

EX TEMPORE JUDGMENT

No. SCC 219 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 29 April 2014

IN THE SUPREME COURT OF THE       )
  )          No. SCC 219 of 2013
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
V
MARK KALEVI KEKALAINEN

ORDER

Judge:  Refshauge J
Date:  29 April 2014
Place:  Canberra

THE COURT ORDERS THAT:

Mark Kalevi Kekalainen be convicted of culpable driving on 16 March 2013 causing the death of Lorna Ann Cummings.

Mark Kalevi Kekalainen be sentenced to three years and four months’ imprisonment to commence on 29 April 2014.

The first nine months of the sentence until 27 January 2014 be served in full time custody.

The next twelve months from 28 January 2015 to 27 January 2016 be served by way of periodic detention.

The first detention period commence on Friday 13 January 2015, when Mark Kalevi Kekalainen is to report to Symonston Periodic Detention Centre by 7:00 pm.

The sentence be suspended on 28…

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 R v Kekalainen

Details

AGLC: R v Kekalainen [2014] ACTSC 132
Case: [2014] ACTSC 132
Decision Date: 29 April 2014

CaseChat Overview and Summary

The defendant, Mark Kalevi Kekalainen, was charged with culpable driving that resulted in the death of Lorna Ann Cummings on 16 March 2013. The case was heard in a relevant Australian court where the defendant contested the charges. The court was required to determine whether the defendant was guilty of the charge and, if so, to determine an appropriate sentence.

The court had to decide whether the defendant was indeed guilty of culpable driving, which required consideration of the evidence regarding the defendant's alcohol consumption and its effect on his driving ability. Additionally, the court needed to assess the appropriate sentence for this offence, taking into account the increase in the maximum penalty for such offences and the principle that the severity of the penalty does not necessarily increase linearly with the severity of the offence.

The court found that the evidence sufficiently established the defendant's guilt of culpable driving, and it was determined that the appropriate sentence should reflect the seriousness of the offence while also considering the mitigating factors. The court sentenced the defendant to three years and four months' imprisonment, with specific conditions regarding the manner and duration of the sentence. The court also imposed additional conditions, such as a requirement for the defendant to sign an undertaking to comply with good behaviour obligations and a disqualification from driving for five years.

The final orders of the court included the conviction of the defendant, the imposition of the specified sentence with detailed conditions, and the disqualification from driving for a period of five years.

Orders

Orders of the court

1. Mark Kalevi Kekalainen be convicted of culpable driving on 16 March 2013 causing the death of Lorna Ann Cummings.

2. Mark Kalevi Kekalainen be sentenced to three years and four months’ imprisonment to commence on 29 April 2014.

3. The first nine months of the sentence until 27 January 2014 be served in full time custody.

4. The next twelve months from 28 January 2015 to 27 January 2016 be served by way of periodic detention.

5. The first detention period commence on Friday 13 January 2015, when Mark Kalevi Kekalainen is to report to Symonston Periodic Detention Centre by 7:00 pm.

6. The sentence be suspended on 28 January 2016 for two years.

7. Mark Kalevi Kekalainen be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from 28 January 2016.

8. Mark Kalevi Kekalainen be disqualified from driving for a period of five years from 29 April 204.

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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Citations

AGLC Citation

R v Kekalainen [2014] ACTSC 132

Most Recent Citation

The Queen v Miroslav Jovanovic [2014] ACTSC 157

Cases citing this decision · 10 of 10 shown

Director of Public Prosecutions v Baker (a pseudonym)
[2025] ACTSC 196

…v Morley [2024] ACTSC 124 Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 R v Campbell [2010] ACTCA 20 R v Creighton [2011] ACTCA 13 R v Kekalainen [2014] ACTSC 132 R v Loeschnauer [2022] ACTSC 30; 98 MVR 484 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252…
Director of Public Prosecutions v Barrett
[2023] ACTSC 260

…; 100 MVR 157 R v Hagen [2022] ACTSC 362; 374 FLR 260 R v Haven (a pseudonym) [2022] ACTSC 25 R v Higgins [2020] ACTSC 299; 94 MVR 367 R v Kekalainen [2014] ACTSC 132 R v Laidlaw [2022] ACTSC 215 R v Livas (No 2) [2020] ACTSC 116 R v Loeschnauer [2022] ACTSC 30 R v Massey [2022] ACTSC 3 R v Ngerengere (No 3) [2016]…
R v Loeschnauer
[2022] ACTSC 30 Para 1

…chardson , Livas (No. 2) and Monfries to which I have earlier referred, the Court was referred to R v Smith [2019] ACTSC 65 ( Smith ), R v Kekalainen [2014] ACTSC 132 and R v Wolter (No 3) [2015] ACTSC 321. A helpful summary of the facts of a number of those cases is contained in Smith at [69]-[74] and it is unnece…
R v Blackburn (No 1)
[2020] ACTSC 373 Para 1

…idelines were generally approved in this jurisdiction by the Court of Appeal in Monfries v The Queen [2014] ACTCA 46 at [89]. See also R v Kekalainen [2014] ACTSC 132 at [27]-[28], where I pointed out that care has to be taken with the fact that lesser penalties are provided for in this Territory than in New South…
R v Livas (No 2)
[2020] ACTSC 116 Para 1

…number of cases which were said to be comparable to the present case. They were Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80; R v Kekalainen [2014] ACTSC 132; Richardson and Smith . I have also had regard to the decision in R v Wolter (No 3) [2015] ACTSC 321. I was also referred to some Victorian cases: Bo…
R v Smith
[2019] ACTSC 65

…3 R v Harrison [2002] NSWCCA 79; 121 A Crim R 380 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Jurisic [1998] NSWSC 423; 45 NSWLR 209 R v Kekalainen [2014] ACTSC 132 R v Martin [2017] VSCA 291; 20 VR 14 R v Meyboom [2012] ACTCA 48 R v Mumberson [2011] NSWCCA 54 R v Pham [2015] HCA 39; 256 CLR 550 R v Richardson [2…
R v Kekalainen (No 3)
[2016] ACTSC 297 Para 1

…ody and the next 12 months to be served by way of periodic detention with the sentence suspended on 28 January 2016 for two years. See R v Kekalainen [2014] ACTSC 132.…
R v Richardson
[2016] ACTSC 133 Para 1

…course, no case is ever the same as any other case. Some attention was devoted to the decisions of R v Wolter (No 3) [2015] ACTSC 321; R v Kekalainen [2014] ACTSC 132 and Creighton , noting that the sentences imposed in Creighton were imposed under the old sentencing regime rather than the current sentencing regime…
R v Kekalainen (No 2)
[2015] ACTSC 369 Para 1

…nths by periodic detention and the sentence was then to be suspended on 28 January 2016 with a Good Behaviour Order for two years. See R v Kekalainen [2014] ACTSC 132.…
The Queen v Miroslav Jovanovic
[2014] ACTSC 157 Para 1

…As I have noted, the maximum penalty for the offence has been increased. In R v Kekalainen [2014] ACTSC 132 at [26], I said of this factor:…

View all 10 citing cases →

Cases cited in this decision · 8 of 8 shown

Barbaro v The Queen
[2014] HCA 2 Para 1

…under s 33 of the Crimes (Sentencing) Act 2005 (ACT), current sentencing practice. This accords with what the High Court said in Barbaro v The Queen (2014) 305 ALR 323 at 331; [38], namely that the necessary information that a court needs to decide what sentence should be passed are the facts to be found, the releva…
Azzopardi v The Queen
[2011] VSCA 372 Para 1

…K (2006) 167 A Crim R 159 at 164; [16]; Lu v The Queen (2008) 190 A Crim R 109 at 122; [59]; R v Hopkins (2008) 22 NTLR 125 at 130; [16]; and Azzopardi v The Queen (2011) 35 VR 43 at 61; [62]). This is the approach I shall take.…
R v Creighton
[2011] ACTCA 13 Para 1

…I have also had regard to what the Court of Appeal said in R v Creighton [2011] ACTCA 13. This was a decision delivered at a time when the maximum penalty was seven years’ imprisonment. Although dependent upon the lower penalty, I have considered the decisions to which I referred in R v Creighton (Unreported, Aust…
Lu v The Queen
[2008] NSWCCA 261 Para 1

…ueen (1994) 72 A Crim R 301 at 306, a decision followed in a number of other jurisdictions (see R v MAK (2006) 167 A Crim R 159 at 164; [16]; Lu v The Queen (2008) 190 A Crim R 109 at 122; [59]; R v Hopkins (2008) 22 NTLR 125 at 130; [16]; and Azzopardi v The Queen (2011) 35 VR 43 at 61; [62]). This is the approach I sh…
Lawrence v The Queen
[2007] ACTCA 10 Para 1

…en years’ imprisonment. There is no doubt that sentencing courts must be mindful of such statutory increase as reminded by the Court of Appeal in Lawrence v The Queen (2007) 1 ACTLR 158 at 161; [9]. Thus, the penalty to be imposed must be greater than those previously likely to be imposed. Indeed, given the substantial increa…
Kennewell v Rand
[2006] ACTCA 10 Para 1

…In Kennewell v Rand [2006] ACTCA 10 at [42], the Court of Appeal made a similar point when it said:…
The Queen v John Joseph Kurzynski
[2001] ACTSC 90 Para 1

…me to the Guideline Judgment of the New South Wales Court of Criminal Appeal in R v Jurisic (1998) 45 NSWLR 209. As Higgins CJ said in R v Kurzynski [2001] ACTSC 90 at [26], the decision…
R v Hopkins
[1915] HCA 51 Para 1

…er of other jurisdictions (see R v MAK (2006) 167 A Crim R 159 at 164; [16]; Lu v The Queen (2008) 190 A Crim R 109 at 122; [59]; R v Hopkins (2008) 22 NTLR 125 at 130; [16]; and Azzopardi v The Queen (2011) 35 VR 43 at 61; [62]). This is the approach I shall take.…

Legislation cited in this decision · 3

Crimes (Sentencing) Act 2005 (ACT)
33, 35, 7 4 mentions (from Para 1)
Crimes Act 1900 (ACT)
29(2) 2 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention (from Para 1)