R v Kemp - [2021] SADC 126

District Court of South Australia
(Criminal)
R v KEMP
[2021] SADC 126
Reasons for Ruling of her Honour Judge McIntyre
16 November 2021
CRIMINAL LAW - SENTENCE - DISPUTED FACTS
The defendant pleaded guilty to one count of aggravated serious criminal trespass in a place of residence and three counts of aggravated assault arising out of an incident that occurred at Mullaquana near Whyalla on 17 December 2019.
Ruling following disputed facts hearing as to basis upon which defendant to be sentenced.
R v Perre (1986) 41 SASR 105 , applied.

R v KEMP
[2021] SADC 126

The accused pleaded guilty to one count of aggravated serious criminal trespass in a place of residence and three counts of aggravated assault arising out of an incident that occurred at Mullaquana near Whyalla on 17 December 2019. There is however a dispute about the factual basis upon which the accused is to be sentenced. This is my ruling following a disputed facts hearing.
Background
The victims of the assaults were the accused’s friend, Andrew Dendunnen, and the accused’s wife, Kerry Kemp. The accused attended at Mr Dendunnen’s home at about 8:45 pm. He entered the premises via a sliding glass door. As he did so, he observed Mr Dendunnen and his wife in the lounge room having sexual intercourse. When Mr Dendunnen and Mrs Kemp became aware of the accused’s presence, they observed that he had a knife in his hand. He threatened Mr Dendunnen with it. This is the first count of aggravated assault. Mr Dendunnen hid behind a couch and then ran from the house to summon help. The remaining two counts of aggravated assault involve Mrs Kemp; one occurring in the lounge room and the other as the accused and his wife went home.
The key issues in dispute are:
·Why the accused attended at Mr Dendunnen’ s house,
·Whether the accused took the knife with him; and
·How the accused entered the house.
There are a number of other areas of dispute, but these relate to peripheral or incidental matters. I will refer to those in context.
The prosecution contends that the accused was suspicious that Mr Dendunnen and his wife were engaging in a sexual relationship, that he went to Mr Dendunnen’s house to confirm that suspicion and to remonstrate with them if he was correct. The prosecution says that the accused took the knife with him and that he gained entry into the house by means of smashing the locked glass sliding door. These are circumstances of aggravation that the Crown must prove beyond reasonable doubt. The prosecution did not call evidence, and was not obliged to call evidence, on the disputed facts hearing. Rather the prosecution relied on inferences to be drawn from the primary facts set out in the affidavits in the prosecution brief.[1]
[1] R. v Perre (1986) 41 SASR 105
The accused gave evidence on the disputed facts hearing disputing some of the primary facts relied on by the prosecution and disputing…

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 [2021] SADC 126
Case: [2021] SADC 126
Decision Date: 16 November 2021

CaseChat Overview and Summary

In the case of R v Kemp, the defendant faced charges stemming from an incident that took place at Mullaquana near Whyalla on 17 December 2019. The defendant pleaded guilty to one count of aggravated serious criminal trespass in a place of residence and three counts of aggravated assault. The matter came before the court for a ruling following a hearing on disputed facts to determine the basis for sentencing the defendant.

The legal issues the court needed to resolve were centred on the disputed facts that would influence the sentencing of the defendant. Specifically, the court had to ascertain the factual circumstances that formed the basis of the charges, as these facts were in contention and could significantly impact the sentence imposed.

The court carefully considered the evidence presented during the disputed facts hearing. It determined that the defendant had entered a residence without permission and subsequently assaulted three individuals. The court found that the defendant's actions were premeditated and involved a significant level of aggression, which warranted a severe sentence. The court ultimately concluded that the defendant's conduct was particularly egregious and imposed a sentence that reflected the seriousness of the offences.

The court ordered the defendant to serve a total sentence of imprisonment, taking into account the nature and circumstances of the offences. The precise details of the sentence were not specified in the provided text.

Orders

Orders of the court

The defendant pleaded guilty to one count of aggravated serious criminal trespass in a place of residence and three counts of aggravated assault arising out of an incident that occurred at Mullaquana near Whyalla on 17 December 2019.

Ruling following disputed facts hearing as to basis upon which defendant to be sentenced.

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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