R v Kemppainen (No 3) - [2023] ACTSC 323

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kemppainen (No 3)
Citation:	[2023] ACTSC 323
Hearing Date:	14 November 2023
Decision Date:	14 November 2023
Before:	McCallum CJ
Decision:	Intensive correction order not cancelled.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – where offender subject to intensive correction order – where further offences committed during term of the order but dealt with after its expiration – meaning of “remainder of offender’s sentence” – whether necessary for Magistrate to commit the offender to the Supreme Court to be dealt with for the breach – whether in the interests of justice to cancel the intensive correction order
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) ss 42(1)(a), 65 Crimes (Sentencing) Act 2005 (ACT) s 11(4)
Cases Cited:	R v Kemppainen; R v Rose [2020] ACTSC 69 R v Kemppainen (No 2) [2020] ACTSC 159 R v XXL [2022] ACTSC 24
Parties:	The Queen (Crown) Matti Bruce Kemppainen ( Offender)
Representation:	Counsel A Sreekumar ( Crown) T Sharman ( Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Tim Sharman Solicitors ( Offender)
File Number:	SCC 141 of 2019

McCALLUM CJ:

Matti Kemppainen comes before the Court today as a result of the commission of offences during the term of an intensive correction order (ICO). Unsurprisingly, the commission of offences during the term of an ICO constitutes a breach of one of the mandatory conditions of such an order: s 11(4) of the Crimes (Sentencing) Act 2005 (ACT); s 42(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT). However, for reasons I will explain, there is no further action this Court can take in the circumstances of this case.
The ICO was made by Murrell CJ for the reasons her Honour gave in her judgments in R v Kemppainen; R v Rose [2020] ACTSC 69 and R v Kemppainen (No 2) [2020] ACTSC 159. The offences for which the offender was dealt with at that time included, most seriously, an offence of recklessly inflicting grievous bodily harm. Her Honour sentenced the offender to three years imprisonment commencing on 16 June 2020 and expiring on 15 June 2023. Her Honour further made an ICO and imposed a community service work condition requiring the offender to undertake 400 hours of community service to be completed within 24 months.
The material before me indicates that the offender successfully completed the community service component of the order. Furthermore, he managed not to come to the attention of police until some six weeks shy of the expiration of the ICO. However, in May 2023, he was arrested for offences alleged to have been committed, as to the oldest, about a year earlier. The offender pleaded guilty to the further offences and was dealt with in the Magistrates Court by Special Magistrate Richter. That occurred on 25 October 2023.
Special Magistrate Richter sentenced the offender for an offence of aggravated damage to property and an offence of aggravated assault…

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: [2023] ACTSC 323
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory dealt with the matter of R v Kemppainen (No 3), where the offender, Matti Bruce Kemppainen, faced a breach of an intensive correction order (ICO) that had been imposed previously. The court was tasked with determining whether the ICO should be cancelled following Kemppainen's commission of further offences during the term of the ICO but being dealt with after its expiration. The legal issues at hand were centred on the interpretation of the term "remainder of the offender's sentence" in section 65 of the Crimes (Sentence Administration) Act 2005 (ACT) and whether it was necessary for the Magistrate to commit the offender to the Supreme Court for the breach. The court was also required to determine if cancelling the ICO was in the interests of justice.

The court considered the provisions of section 65, which mandates that if an offender commits and is convicted or found guilty of an offence after being sentenced to serve intensive correction, the sentencing court must cancel the order unless doing so is not in the interests of justice. The court noted that section 65(2) requires the remainder of the offender's sentence to be served by full-time detention if the order is cancelled. The court referred to the decision in R v XXL, where Mossop J concluded that the "remainder of the offender's sentence" should run from the time the offender is convicted or found guilty of the breach offence. The Chief Justice agreed with this interpretation and held that as the further offences were dealt with after the expiration of the ICO, there was no remainder of the sentence to be served. Therefore, cancelling the ICO was not in the interests of justice. The court also noted that it was not entirely convinced that it was necessary for the Magistrate to refer the breach but did not make a final decision on this matter.

In conclusion, the Supreme Court determined that there was no point in cancelling the ICO and that it was not in the interests of justice to do so. Consequently, the ICO remained in effect.

Orders