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 occasioning actual bodily harm. Each is noted on the record to be a family violence offence. His Honour imposed terms of imprisonment which expire in April next year with a non-parole period which expires on 30 November 2023, some two weeks hence.
Because the further offences were committed within the term of the ICO, the offender was taken to be in breach of that order and, pursuant to s 65 of the Crimes (Sentence Administration) Act 2005 (ACT), was committed to this Court to be dealt with for the breach. However, as I have indicated, the sentence imposed by Special Magistrate Richter was imposed in October 2023, which was after the expiration of the ICO.
Section 65(1) provides that the section applies “if, after an offender was sentenced to serve intensive correction, the offender commits, and is convicted or found guilty of [relevantly, an offence against a territory law]” (emphasis added).
In that event, s 65(2) provides that the sentencing court must, as soon as practicable—
(a)cancel the intensive correction order, unless cancellation is not in the interests of justice;
(b)if the court cancels the intensive correction order—order that the remainder of the offender's sentence be served by full-time detention.
In R v XXL [2022] ACTSC 24, Mossop J considered authorities on the issue whether the “remainder of the offender’s sentence” is to be calculated from the date of the offence which constitutes a breach of the ICO or, rather, from the date on which the offender is convicted or found guilty of the breach offence. For the reasons his Honour briefly explained, with which I respectfully agree, his Honour concluded that the legislation should be construed most favourably to the offender and that the “remainder of the offender’s sentence” should be taken to run from the time the offender is convicted or found guilty of the breach offence: at [35].
If that is an anomaly, that is a matter for the legislature to address. That said, it is not clear to me that it is an anomaly. It may be accepted that the core conditions of an ICO make it a breach to commit an offence during the term of the ICO. However, until a person is “convicted or found guilty of an offence” (in the language of s 65(1)), he or she is presumed to be innocent. It is not unlikely that Parliament deliberately fixed the time when an offender becomes liable to be dealt with for breaching an ICO to be the date on which there is a judicial determination of guilt of the breach offence.
In the present case, that was after the expiration of the ICO. It is clear that there is no remainder of the sentence to be served.
I note in passing that I am not entirely persuaded that it was necessary in the circumstances for the Magistrate to refer the breach. I make no final decision about that matter since it has not been addressed by the parties.
The short point is that, as already explained, s 65 only applies if an offender “commits, and is convicted or found guilty of” an offence during the term of the ICO (the section says “after an offender was sentenced to serve intensive correction” but that must plainly be construed to mean during the term of the order). Where the ICO was made by this Court and the further offences are dealt with in the Magistrates Court, that Court is required to commit the offender to be dealt with for the breach (as occurred here). However, that obligation is constrained in the same terms as the whole section. The obligation to commit the offender to be dealt with for the breach only applies if “the offender is convicted or found guilty of an offence” by the Magistrates Court: s 65(4). Those qualifying words must have the same meaning in subsection (4) as they have in subsection (1). If that is correct, s 65(4) does not require the Magistrates Court to commit an offender to this Court to be dealt with for a breach consisting in an offence committed during the term of the ICO if the offender was not convicted or found guilty of the offence until after the expiration of the ICO.
That said, in XXL where Mossop J was dealing with the offender for the offences as well as the breach, his Honour had regard to the fact of the breach in sentencing the offender. It was open to Special Magistrate Richter to take the same course in dealing with the offender in the Magistrates Court.
In any event, for the reasons explained above, there is point in cancelling the ICO and accordingly it is not in the interests of justice to do so.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum.

Associate:

Date: 4 December 2023