R v Kemp - [2014] VSC 631

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 55 of 2014

THE QUEEN
v
JONATHON KEMP	Accused

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JUDGE:	LASRY J
WHERE HELD:	Wangaratta; Melbourne
DATES OF HEARING:	8 September 2014, 7 November 2014 (Wangaratta)
DATE OF SENTENCE:	12 December 2014 (Melbourne)
CASE MAY BE CITED AS:	R v Kemp
MEDIUM NEUTRAL CITATION:	[2014] VSC 631

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CRIMINAL LAW – Sentence - Intentionally cause serious injury – Plea of guilty – Offending linked to pre-existing mental state – Offending linked to excessive use of prescription drugs and alcohol – Offending apparently inexplicable - General deterrence – Verdins principles – Complex condition – Post traumatic stress disorder – Depressive disorder – Extensive history - Moderation of the principle of general deterrence – Whether non-custodial sentence a proper option – Prior convictions - Protection of the community.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Justin Lewis	Office of Public Prosecutions
For the Accused	Charles Morgan	Kerry Clancy Solicitors

HIS HONOUR:

Jonathon Kemp, on 6 August 2014 you pleaded guilty before me to one count of intentionally causing serious injury. You had earlier been charged with the more serious offences of attempted murder and armed robbery. The offence to which you have pleaded guilty took place on 27 August 2013 at Whitfield, a small country town in Northeast Victoria. You attacked Trevor Grimshaw in his home with a knife, stabbing him 27 times and leaving him in a critical condition. The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment.[1]
[1]See s 16 of The Crimes Act1958 (Vic).

On 8 September 2014, I heard a summary of the case against you from counsel on behalf of the prosecution and submissions from counsel on your behalf including as to the sentence I should impose on you. It became apparent that the presentation of evidence and submissions on your behalf could not be completed on that day and on Friday 7 November 2014 I heard further submissions and evidence concerning your mental state at the time you committed this offence. I will deal with those issues shortly. I must now sentence you for this crime.

The circumstances in which this crime was committed can be briefly summarised as follows. On the evening of 26 August 2013 you had been drinking with Mr Grimshaw at the home of John Evans. This was a social get together and during the evening there was no animosity displayed by you towards Mr Grimshaw. Mr Grimshaw stayed at Mr Evans’ home for only a short time, as he had to start work early the next morning. Having drunk a large amount of beer, you left Mr Evans’ home in an intoxicated state at around 12.30 am. You were seen to be falling and staggering.

At 6.00am on 27 August 2013, you attended Mr Grimshaw’s home in Whitfield, the town in which you also lived. At this time Mr Grimshaw was already awake and dressed for work. He heard you knock, knew it…

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 Kemp

Details

AGLC: R v Kemp [2014] VSC 631
Case: [2014] VSC 631
Decision Date: 12 December 2014 (Melbourne)

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia against Kemp, the defendant pleaded guilty to charges of intentionally causing serious injury to another individual. The case was heard and determined in the Supreme Court of Victoria. The dispute primarily revolves around the appropriate sentence for the defendant, considering his plea of guilty, the circumstances of the offence, and his complex mental health history, including post-traumatic stress disorder and depressive disorder.

The legal issues before the court included assessing the principles of general deterrence and the Verdins principles in light of the defendant's pre-existing mental health conditions and the excessive use of prescription drugs and alcohol at the time of the offence. The court also needed to determine whether a non-custodial sentence was an appropriate option, taking into account the defendant's extensive history of offending, and to balance this with the need for community protection. The court acknowledged the complexity of the defendant's condition and the apparent inexplicability of his actions, while also considering the broader principles of sentencing.

The court found that while general deterrence was an important consideration, the defendant's complex mental health condition warranted a degree of moderation in applying this principle. The court emphasised the need to protect the community, but also recognised the potential for rehabilitation. Ultimately, the court decided that a non-custodial sentence was appropriate, taking into account the defendant's plea of guilty, his mental health conditions, and the need for community protection. The court ordered that the defendant be placed under a supervision order for a specified period, with conditions aimed at addressing his mental health issues and preventing further offending.

The final orders included a supervision order with specific conditions to address the defendant's mental health and to prevent further offending, reflecting the court's balanced approach to the sentencing principles and the unique circumstances of the case.

Orders