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 |
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…
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- Case
- [2023] ACTSC 323
- Decision Date
CaseChat Overview and Summary
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.
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