R v Kemppainen (No 2)

[2020] ACTSC 159

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kemppainen (No 2)

Citation:

[2020] ACTSC 159

Hearing Date(s):

16 June 2020

DecisionDate:

16 June 2020

Before:

Murrell CJ

Decision:

The offender is sentenced to three years’ imprisonment, to be served by way of intensive correction order with additional conditions.  

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Recklessly inflict grievous bodily harm – Intensive correction order assessment – Public health emergency

Legislation Cited:

Crimes (Sentencing) Act2005 (ACT) s 11

Cases Cited:

R v Kemppainen; R v Rose [2020] ACTSC 69

Parties:

The Queen (Crown)

Matti Bruce Kemppainen (Offender)

Representation:

Counsel

A Williamson (Crown)

J Sabharwal (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Robertson (Offender)

File Number(s):

SCC 141 of 2019

MURRELL CJ

Introduction

1. These reasons are additional to those I provided in R v Kemppainen; R v Rose [2020] ACTSC 69. For the offence of recklessly inflicting grievous bodily harm, I indicated a sentencing range of two and a half to three years’ imprisonment as a starting point, with a discount of 15 per cent for the plea of guilty. I requested that the offender be assessed for his suitability for an intensive correction order (ICO).

Psychologist’s report

1. The offender tendered a psychologist's report by Dr Boer.

1. The offender told Dr Boer that he is now in a new relationship and his partner does not drink or use drugs. The offender has two children, aged seven and four. The younger child resides with the offender and the offender's mother.

1. Dr Boer opined that the offender remains at low risk of general reoffending, including violent offending, due to factors such as ongoing employment, stable accommodation, and abstinence from drugs. Dr Boer also referred to the fact that the offender has been assessed as suitable for the role of custodial parent.

1. Dr Boer stated:

In my opinion, Mr Kemppainen's risk issues are primarily related to substance use, primarily the use of methamphetamine (ice). His recent offence was also substance-related – drinking to excess (“10 to 11 beers” by his own estimation). His relationship problems have been substance-related whether his partner at the time was not a substance user … or was a fellow drug user.

ICO assessment report

1. The author of the ICO assessment report assessed the offender as at medium to low risk of general reoffending. As part of the assessment, the offender provided four urinalysis samples for drug testing. All returned a negative result. The offender proposed that he would live with his mother, where he is currently residing, who can provide stable accommodation. She is willing to liaise with Corrective Services to ensure that the offender abides by any ICO conditions.

1. The report author stated that the offender had accepted responsibility for his actions and stated that his alcohol consumption was a contributing factor towards the offending.

1. The offender was assessed as suitable for an ICO, including a community service work condition. The report suggested that a curfew may be beneficial. The report recommended that the offender participate in programs and/or counselling that addressed cognitive behaviours and anger management.

Consideration

1. I have had regard to the factors in s 11(3) of the Crimes (Sentencing) Act2005 (ACT) and consider that it is appropriate to impose an intensive correction order.

1. In reaching that conclusion, I am mindful that the pandemic, which prompted the request for an assessment in the first place, is far from over, and its duration remains uncertain. Currently, prisoners at the Alexander Maconochie Centre do not enjoy regular face-to-face meetings with family and friends, and are largely, if not exclusively, confined to video conferencing contact. This would be a particular problem for the offender, given his custodial role in relation to his child.

1. Nevertheless, as mentioned on the last occasion, ordinarily, sentencing purposes such as general deterrence, accountability and denunciation would demand that the offender spend at least some period in full-time imprisonment as the only appropriate sentencing outcome. However, because of the exceptional situation with the pandemic, I propose to make an intensive correction order.

Sentence

1. I will not discount the sentence by the foreshadowed 15 per cent because I will take that discount into account in relation to the manner in which the sentence is served.

1. The offender is sentenced to three years' imprisonment, and I make an intensive correction order.

1. I impose a community service work condition requiring the offender to undertake work for 400 hours to be completed within 24 months.

1. For the first 18 months, the offender is subject to a curfew condition and must remain at his residence between the hours of 10 PM and 5 AM, unless he has the prior written approval of his corrections officer to absent himself for a special reason.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

Associate:

Date: 23 June 2020