R v Kekalainen (No 2) - [2015] ACTSC 369

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Kekalainen (No 2)
Citation:	[2015] ACTSC 369
Hearing Date:	5 November 2015
DecisionDate:	11 November 2015
Before:	Refshauge J
Decision:	1) The conviction of Mark Kekalainen for the offence of culpable driving on 16 March 2013, causing the death of Lorna Anne Cumming be confirmed. 2) Mark Kekalainen be re-sentenced under s 82A of the Crimes (Sentence Administration) Act 2005 as follows: (i) Mark Kekalainen be sentenced to three years and four months imprisonment to commence on 1 October 2014, to take into account pre-sentence custody. (ii) The sentence be suspended today for 27 months and one week. (iii) Mark Kekalainen be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 28 months with the following conditions: (a) a probation condition that he be under the supervision of the director general or her delegate and obey all reasonable directions of the person supervising him for two years or such lesser period as the person supervising him considers appropriate. (b) a community service work condition that within two years from today he undertake 250 hours of community service work. (c) he is disqualified from holding or obtaining a licence for two years from today. (d) he attend at ACT Corrective Services, Eclipse House, London Circuit, Canberra City by 4.00 pm tomorrow, 12 November 2015.
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – re-sentence – culpable driving – remittance from Sentencing Administration Board – periodic detention – directed not to perform periodic detention – alcohol abuse – periodic detention cancelled – mental health concerns – undergoing counselling – suspended sentence – Good Behaviour Order – community service work
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 58, 70, 75, 75(5), 82A Crimes (Sentencing) Act 2005 (ACT), s 29(1)(a)
Cases Cited:	R v Clune (No 2) [1975] VR 737 R v Kekalainen [2014] ACTSC 132 R v Stares (2002) 4 VR 314 R v Verdins (2007) 16 VR 269
Parties:	The Queen (Crown) Mark Kalevi Kekalainen (Defendant)
Representation:	Counsel Ms A Jamieson-Williams (Crown) Mr J Lawton (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Defendant)
File Number(s):	SCC 219 of 2013

REFSHAUGE J:

On 15 March 2013, Mark Kekalainen was driving a motorcycle with a pillion passenger when he lost control of the motorcycle and crashed, killing the pillion passenger.

He was charged with culpable driving whilst he was under the influence of alcohol so as not to have a proper control of the motor vehicle and which caused the death of Lorna Anne Cumming, the pillion passenger.

He pleaded guilty to that charge and, on 29 April 2014, I sentenced him to imprisonment for three years and four months to be served, as to the first nine months, in full time custody and the next 12 months by periodic detention and the sentence was…

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.

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Details

Case: [2015] ACTSC 369
Decision Date: 11 November 2015

CaseChat Overview and Summary

Mark Kekalainen was convicted of culpable driving, which led to the death of Lorna Anne Cumming, and appealed against his sentence. The matter was heard in the Supreme Court of the Australian Capital Territory. The appellant argued that the original sentence was inappropriate and sought a re-sentencing. The court had to determine whether the initial sentence was excessive or inadequate and whether a different sentence should be imposed.

The primary legal issue before the court was whether the original sentence was manifestly inadequate or excessive. The court also had to consider whether the sentence could be altered under section 82A of the Crimes (Sentence Administration) Act 2005. The appellant's counsel argued that the periodic detention component of the sentence was inappropriate given his alcohol abuse issues and mental health concerns. The respondent contended that the original sentence was appropriate and that no changes were necessary.

The court held that the original sentence was manifestly inadequate given the seriousness of the offence. The court found that periodic detention was not suitable for the appellant due to his alcohol abuse and mental health issues. The court re-sentenced the appellant to three years and four months imprisonment, to be suspended for 27 months and one week. The court also imposed additional conditions including a probation order, community service, disqualification from holding a licence, and a requirement to attend at ACT Corrective Services.

The final orders included the confirmation of the conviction for culpable driving, the re-sentencing with specific conditions, and the imposition of a Good Behaviour Order. The appellant was also required to comply with certain conditions as part of his sentence.

Orders

Orders of the court

1) The conviction of Mark Kekalainen for the offence of culpable driving on 16 March 2013, causing the death of Lorna Anne Cumming be confirmed.

2) Mark Kekalainen be re-sentenced under s 82A of the Crimes (Sentence Administration) Act 2005 as follows:

(i) Mark Kekalainen be sentenced to three years and four months imprisonment to commence on 1 October 2014, to take into account pre-sentence custody.

(ii) The sentence be suspended today for 27 months and one week.

(iii) Mark Kekalainen be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 28 months with the following conditions:

(a) a probation condition that he be under the supervision of the director general or her delegate and obey all reasonable directions of the person supervising him for two years or such lesser period as the person supervising him considers appropriate.

(b) a community service work condition that within two years from today he undertake 250 hours of community service work.

(d) he attend at ACT Corrective Services, Eclipse House, London Circuit, Canberra City by 4.00 pm tomorrow, 12 November 2015.

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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